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G.R. No.

133739

May 29, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
TOMAS COCA JR., RICARDO COCA and RAMIL
COCA, accused-appellants.
YNARES-SANTIAGO, J.:
This is an appeal from the decision1 of the Regional Trial Court of
Cebu City, Branch 18, in Criminal Case No. CBU-43013 convicting
accused-appellants of the crime of murder; sentencing each of
them to suffer the penalty ofreclusion perpetua; and to
indemnify the heirs of the deceased in the amount of
P50,000.00, plus the costs.1wphi1.nt
The Information against accused-appellants states:
That on or about the 20 day of March, 1996, at about
7:00 o'clock in the evening, in the City of Cebu,
Philippines, and within the jurisdiction of this
Honorable Court, the said accused, armed with a gun,
conniving and confederating together and mutually
helping one another, with deliberate intent, with intent
to kill, with treachery and evident premeditation, did
then and there suddenly and unexpectedly attack,
assault and use personal violence upon one Edilberto
Banate, by shooting him with said gun, thereby
inflicting upon him physical injuries:
th

"GUNSHOT WOUND"
as a consequence of which said Edilberto Banate died
after four (4) months.
CONTRARY TO LAW.

Upon arraignment on January 23, 1997, accused-appellants


pleaded not guilty.3 Trial on the merits thereafter followed.
Accused-appellants and the victim, Edilberto Banate, were
related by affinity, and all residents of Cabulihan, Guba, Cebu
City. Brothers Ricardo Coca and Tomas Coca, Jr. are the first
degree cousins of Merolina Banate, the victim's wife; while Ramil
Coca is the son of Ricardo Coca.4
At about 9:00 in the evening of March 13, 1996, Tomas, Ricardo
and Ramil Coca mauled the victim, as a result of which the latter
sustained several injuries and seriously broke his left

shoulder.5 Unluckily, this was just the beginning of the dangers


yet to beset him.
A week later, on March 20, 1996, at 7:00 in the evening, while
the victim was having supper with his wife Merolina and their two
children inside their kitchen, a sudden burst of gunfire emanated
from underneath the house. Merolina peeped through the slits on
the floor and saw three persons sitting on their heels. The
fluorescent lamp which illuminated their kitchen and the 100
watt bulb of the adjacent house directly opposite the kitchen
enabled Merolina to identify accused-appellant Tomas, Ricardo
and Ramil Coca, who were all underneath the house and looking
upwards. Tomas Coca was positioned between Ricardo and Ramil
and aiming a gun at Edilberto. She turned and saw her husband,
slumped on the floor with blood oozing from his body. 6
Meanwhile, Alexander Singson, a visitor at Merolina's house who
left earlier to buy cigarettes was alerted by the gunshots. He
hurried to the scene and saw the three accused-appellants
running away from the house of the victim. Thereafter, he rushed
to the house of the victim and helped bring him to the hospital.7
The victim sustained a massive gunshot would on the chest. The
bullet pierced the right rib, penetrating the pulmonary region all
the way to, and fracturing the spinal column, where the slug was
embedded. As a consequence, the victim became paralyzed
from waist down. He eventually died on July 2, 1996.8
Meronila purposely withheld the identity of the culprits. She
feared that revealing the names of the persons who shot her
husband would endanger not only her life but also that of her
children who were alone in their house all through out the time
that she was in the hospital with her injured husband. It was only
after almost five months, or on August 19, 1996, that she finally
divulged the identities of the perpetrators.9
Accused-appellants, on the other hand, raised the defense of
denial and alibi. Tomas Coca, Jr. testified that at about 7:00 in the
evening of March 20, 1996, he and Ricardo Coca attended a
birthday party in the house of a certain Mario Rebales10 at
Calubihan, Guba, Cebu City. Sometime that evening, Ramil Coca
arrived and informed them that Edilberto Banate was shot. Then,
he followed Ricardo Coca and Pedro Soquib to the house of the
victim but he did not proceed when he noticed that there were
no more people there.11 This was corroborated by Ricardo Coca
who declared that on the night of March 20, 1996, he and Tomas
were in the house of Mario Rebales, as he was hired to cook the
food for the birthday party of Rebales' daughter. After sometime,
his son, Ramil Coca, arrived and told them that Edilberto Banate
was shot. Thereafter, he and Pedro Soquib, followed by Ramil
and Tomas, proceeded to the house of the victim, but the latter
was already brought to the hospital.12

Ramil Coca affirmed the version of Ricardo and Tomas and added
that on the night of March 20, 1996, he was eating supper with
his family when they heard three successive gunshots. When he
and his mother went out to check what happened, they saw Roel
Soquib and Melino Leyson carrying the body of Edilberto Banate.
Then, at the instruction of his mother, he proceeded to the house
of Mario Rebales to inform his father of the shooting incident.
Thereafter, his father, Ricardo and Pedro Soquib followed by
Tomas, proceeded to the scene of the crime; while he went
home.13
The version of the defense was further corroborated by the
testimonies of defense witnesses Pedro Soquib and Mario
Rebales.14 Defense witnesses Sergio Borres and Roel Soquib, who
helped bring the victim to the hospital, further narrated that
Merolina Banate told them that she was not able to recognize the
culprit because it was dark.15
On July 30, 1997, the trial court rendered the assailed judgment
of conviction. The dispositive portion thereof reads:
WHEREFORE, in view of all the foregoing facts and
circumstances, accused Tomas Coca, Jr., Ricardo Coca
and Ramil Coca are hereby imposed each the penalty
of RECLUSON PERPETUA with the accessory penalties
of the law; to jointly indemnify the heirs of the
deceased Edilberto Banate in the sum of P50,000.00
and to pay the costs. The accused, however, are
credited in full during the whole period of their
detention provided that they will signify in writing that
they will abide by all the rules and regulations of the
penitentiary.
SO ORDERED.16
In their appeal, accused-appellants contend that the prosecution
failed to establish beyond reasonable doubt the identity of the
perpetrators. They claimed that at 7:00 in the evening, it was
impossible for Merolina Banate to recognize the culprits through
a inch gap on the bamboo flooring, considering that the area
underneath the house where the gunfire allegedly came from
was dark. In the same vein, accused-appellants assert that the
testimony of Alexander Singson is fabricated. According to them,
it is unbelievable that Singson had committed to memory the
appearance of the assailants not only because it was dark, but
also because Singson himself admitted that he saw the
assailants only for the first time during the incident. They further
argued that if Merolina indeed recognized the perpetrators, she
would have immediately revealed their names to those who
responded and to the members of the media who interviewed
her. Accused-appellants likewise alleged that Merolina's reaction
immediately after the gun bursts was contrary to human
experience. The natural reaction would have been to seek cover,

turn off the light, shout for help, or cuddle the injured, and not to
peep through the floor where the shots came from. Finally,
accused-appellants Ricardo and Ramil Coca contend that even
assuming that the version of the prosecution were true, they
should have been acquitted considering that there was no
evidence to show that they connived with accused-appellant
Tomas Coca, Jr.

ATTY. VAILOCES:

xxx

Q.
You will admit that you did not see the person or
persons in the act of shooting your husband?

A.

xxx

Witness indicating a distance of six (6) meters


xxx

A.
I do not admit because I actually saw the
persons who actually shot my husband.

xxx

xxx

x x x20

ATTY. VAILOCES:

The contentions are without merit.


Visibility is indeed a vital factor in the determination of whether
or not an eyewitness have identified the perpetrator of a crime.
However, it is settled that when conditions of visibility are
favorable, and the witnesses do not appear to be biased, their
assertion as to the identity of the malefactor should normally be
accepted. Illumination produced by kerosene lamp or a flashlight
is sufficient to allow identification of persons. Wicklamps,
flashlights, even moonlight or starlight may, in proper situations,
be considered sufficient illumination, making the attack on the
credibility of witnesses solely on that ground unmeritorious. 17
In the case at bar, the kitchen/dining area where the victim was
shot from underneath the house was illuminated by a fluorescent
lamp. There would therefore be light falling on the faces of
accused-appellants, especially so that they were all facing
upwards. Ordinary human experience would tell us that bamboo
flooring with gaps smaller than an inch allows every ray of light
emanating from a fluorescent lamp to freely penetrate through
the bamboo slats. With this environmental milieu, the fluorescent
lamp would indeed provide sufficient illumination to identify the
accused-appellants underneath a 3 to 4 feet high bamboo
flooring. What is more, the 100 watt bulb of the adjacent house,
six meters away, and directly opposite the kitchen where the
victim was shot, provided additional illumination below the
victim's house. Clearly, therefore, the circumstances surrounding
the commission of the crime certainly obliterate the slightest
shred of doubt on the veracity of accused-appellant's
identification.

Q.

What did you see?

A.

I saw the three of them.


xxx

A reading of the transcript of stenographic notes shows that


even under cross-examination, Merolina stayed firm and
consistent in her identification of accused-appellants, thus

x x x19

Q.
You said that you saw Tomas Coca in the act of
shooting although that is not stated in your affidavit.
My question now is: how were you able to see when it
was nighttime?
A.
I intently peep through the floor and because it
was well-lighted by the fluorescent lamp I vividly saw
them underneath the house. I know them because
they are my close relatives.

A.
The three of them. It was Jr. Coca who held the
firearm.
xxx

xxx

xxx

ATTY. VAILOCES:
Q.
Now, what were the other two doing at the time
you saw them?
A.

They were by the side also looking towards us.

FISCAL GALANIDA:
COURT:
There was a portion not translated:
Q.

You are sure of that?

A.

I am sure Your Honor.21

WITNESS:
A.
And even the adjacent area it was also well
lighted. Moreover, they are my close relatives even by
their smell I could sense they were (sic).
xxx

Moreover, it is not amiss to state that "relatives of a victim of a


crime have a natural knack for remembering the face of the
assailant and they, more than anybody else, would be concerned
with obtaining justice for the victim by the malefactor being
brought to the face of the law." Indeed, family members who
have witnessed the killing of a loved one usually strive to
remember the faces of the assailants.18 With more reason
therefore that we should believe the positive identification of
accused-appellants by Merolina Banate. Being close blood
relatives and residents of the same barangay, Merolina would
naturally and particularly be familiar with the face and build of
accused-appellants.

xxx

Q.
When you said you saw Tomas Coca underneath
your house and then left your house of course he was
the only one you saw and no other persons?

xxx

xxx

Q.
What light illumines (sic) from (sic) the outside
portion of the house?
xxx

xxx

xxx

WITNESS:
A.
It was a 100 watt bulb near our house. It gave
bright light from the outside.
Q.
How far is that bulb outside to the place where
you allegedly saw Tomas Coca?

Accused-appellants were likewise positively identified by


prosecution witness Alexander Singson as the persons he saw
running away from the house of the victim right after he heard
the gunshots. But even if we disregard the testimony of Singson,
the persuasive and compelling testimony of the victim's wife,
juxtaposed with the circumstances which proved feasible the
identification of accused-appellants, are enough to prove their
culpability beyond any scintilla of doubt.
Neither does the failure of Merolina to immediately reveal the
identity of the culprits cast doubt on the truthfulness of her
testimony. It must be stressed that Merolina was anxious of her
and her children's safety. The threat on their lives was indeed a
deterrent strong enough to mute her. As consistently held by the
Court, fear of reprisal and death threats are accepted as
adequate explanations for the delay in reporting crimes. 22
Moreover, Merolina's act of peeping through the flooring
immediately after they were fired upon was not contrary to
human experience. Merolina was not yet aware that her husband

was hit when she instinctively looked through the gaps in the
bamboo floor. Hence, her instinct could not have told her at that
time to cuddle her husband. At any rate, it is a settled
jurisprudence that different people react differently to a given
situation and there is no standard form of behavioral response
when one is confronted with a strange, startling or frightful
experience. One person's spontaneous response may be
aggression while another person's reaction may be cold
indifference.23
While it is true that accused-appellants Ricardo and Ramil Coca
did not actually shoot the victim, their conspiratorial acts and
omissions would likewise make them liable for his death. Ricardo
and Ramil purposely accompanied Tomas underneath the house
of the victim, such that they could not be considered innocent
spectators. They simultaneously left the scene of the crime
together with Tomas and did nothing to stop or prevent the latter
from shooting the victim. Finally, they had the motive to kill the
victim as they in fact previously mauled him after a
misunderstanding.
So also, the defenses of denial and alibi raised by accusedappellants must fail. Not only are said defenses inherently weak,
they cannot likewise prevail over their positive identification24 by
prosecution witness Merolina Banate, who was not shown to
have been impelled by any ill-motive to falsely impute the
commission of the crime against them, her very own relatives.
Furthermore, the locus criminis is only 300 meters25 and 40
meters26 away, respectively, from the place where accusedappellants Ricardo and Tomas, as well as Ramil, were allegedly at
when the crime occurred. This negates the physical impossibility
of their presence at the scene of the crime at the time the felony
was committed.27
There is treachery when the offender commits any of the crimes
against persons, employing means, methods, or forms in the
execution thereof which tend to directly and specially insure the
execution of the crime, without risk to himself arising from the
defense which the offended party might make. The essence of
treachery is the sudden, unexpected, and unforeseen attack on
the person of the victim, without the slightest provocation on the
part of the latter.28 Judging from the circumstances which
attended the shooting of the deceased, treachery undoubtedly
qualified the present case to murder. This is so because accusedappellants obviously devised a way, that is, by shooting the
victim from underneath the house, to effectively execute the
crime without risk to themselves arising from the defense which
the unsuspecting victim might put up.1wphi1.nt
In sum, the Court finds that the trial court did not err in
upholding the version of the prosecution and disregarding the
defenses put up by accused-appellants. Though Merolina did not
see the actual shooting of her husband, the circumstantial
evidences presented by the prosecution are sufficient to sustain
a conviction. Under the Rules of Court, conviction based on

circumstantial evidence is sufficient if: (a) there is more than one


circumstance; (b) the facts from which the inferences are derived
are proven; and (c) the combination of all the circumstances is
such as to produce a conviction beyond reasonable
doubt.29 Here, more than one circumstance was presented by the
prosecution. The victim's wife heard gunshots from underneath
their house. Immediately thereafter, she peeped through their
bamboo flooring and saw the three accused-appellants sitting on
their heels and looking upwards. Accused-appellant Tomas Coca,
Jr. was holding a gun pointed upwards while seated between
accused-appellants Ricardo and Ramil Coca. When she turned to
her husband, she saw that he was shot. As the three accusedappellants fled, prosecution witness Alexander Singson saw them
running away from the house of the victim. All these, added to
accused-appellants' previous altercation with the victim, form an
unbroken chain of circumstances pointing to accused-appellants,
and no other, as the persons responsible for the victim's death.
The trial court did not overlook any fact of weight and substance
which, if properly considered, would have altered the result of
the case. Hence, its findings of facts and assessment of the
credibility of the witnesses deserve to be sustained on appeal.
For having had the distinct opportunity of directly observing the
demeanor and conduct of the witnesses under oath, the trial
court is in a better position to ascertain whether or not a witness
is telling the truth.30
The penalty for the crime of murder is reclusion perpetua to
death.31 The two penalties being both indivisible, and there being
neither mitigating nor aggravating circumstance in the
commission of the offense, the lesser of the two penalties, which
is reclusion perpetua, should be applied pursuant to the second
paragraph of Article 63 of the Revised Penal Code.
As for accused-appellant's civil liability, he should, in addition to
the P50,000.00 civil indemnity and the costs, further pay the
heirs of the deceased the amount of P50,000.00 as moral
damages in line with recent jurisprudence.32
WHEREFORE, in view of all the foregoing, the decision of the
Regional Trial Court of Cebu City, Branch 18, in Criminal Case No.
CBU-43013, finding accused-appellants Tomas Coca, Jr., Ricardo
Coca, and Ramil Coca guilty beyond reasonable doubt of the
crime of murder and sentencing each of them to suffer the
penalty of reclusion perpetua is AFFIRMED with
the MODIFICATION that in addition to the P50,000.00 civil
indemnity and the costs, accused-appellants are further ordered
to pay the heirs of the deceased, jointly and severally, the
amount of P50,000.00 as moral damages.
SO ORDERED.

G.R. No. 143340

August 15, 2001

LILIBETH SUNGA-CHAN and CECILIA SUNGA, petitioners,


vs.
LAMBERTO T. CHUA, respondent.
GONZAGA-REYES, J.:
Before us is a petition for review on certiorari under Rule 45 of
the Rules of Court of the Decision1 of the Court of Appeals dated
January 31, 2000 in the case entitled "Lamberto T. Chua vs.
Lilibeth Sunga Chan and Cecilia Sunga" and of the Resolution
dated May 23, 2000 denying the motion for reconsideration of
herein petitioners Lilibeth Sunga and Cecilia Sunga (hereafter
collectively referred to as petitioners).
The pertinent facts of this case are as follows:
On June 22, 1992, Lamberto T. Chua (hereafter respondent) filed
a complaint against Lilibeth Sunga Chan (hereafter petitioner
Lilibeth) and Cecilia Sunga (hereafter petitioner Cecilia),
daughter and wife, respectively of the deceased Jacinto L. Sunga
(hereafter Jacinto), for "Winding Up of Partnership Affairs,
Accounting, Appraisal and Recovery of Shares and Damages with
Writ of Preliminary Attachment" with the Regional Trial Court,
Branch 11, Sindangan, Zamboanga del Norte.
Respondent alleged that in 1977, he verbally entered into a
partnership with Jacinto in the distribution of Shellane Liquefied
Petroleum Gas (LPG) in Manila. For business convenience,
respondent and Jacinto allegedly agreed to register the business
name of their partnership, SHELLITE GAS APPLIANCE CENTER
(hereafter Shellite), under the name of Jacinto as a sole
proprietorship. Respondent allegedly delivered his initial capital
contribution of P100,000.00 to Jacinto while the latter in turn
produced P100,000.00 as his counterpart contribution, with the
intention that the profits would be equally divided between
them. The partnership allegedly had Jacinto as manager,
assisted by Josephine Sy (hereafter Josephine), a sister of the
wife respondent, Erlinda Sy. As compensation, Jacinto would
receive a manager's fee or remuneration of 10% of the gross
profit and Josephine would receive 10% of the net profits, in
addition to her wages and other remuneration from the business.
Allegedly, from the time that Shellite opened for business on July
8, 1977, its business operation went quite and was profitable.
Respondent claimed that he could attest to success of their
business because of the volume of orders and deliveries of filled
Shellane cylinder tanks supplied by Pilipinas Shell Petroleum
Corporation. While Jacinto furnished respondent with the
merchandise inventories, balance sheets and net worth of
Shellite from 1977 to 1989, respondent however suspected that
the amount indicated in these documents were understated and

undervalued by Jacinto and Josephine for their own selfish


reasons and for tax avoidance.

On August 16, 1993, the trial denied the second motion to


dismiss for lack of merit.

Upon Jacinto's death in the later part of 1989, his surviving wife,
petitioner Cecilia and particularly his daughter, petitioner
Lilibeth, took over the operations, control, custody, disposition
and management of Shellite without respondent's consent.
Despite respondent's repeated demands upon petitioners for
accounting, inventory, appraisal, winding up and restitution of
his net shares in the partnership, petitioners failed to comply.
Petitioner Lilibeth allegedly continued the operations of Shellite,
converting to her own use and advantage its properties.

On November 26, 1993, petitioners filed their Petition for


Certiorari, Prohibition and Mandamus with the Court of Appeals
docketed as CA-G.R. SP No. 32499 questioning the denial of the
motion to dismiss.

On March 31, 1991, respondent claimed that after petitioner


Lilibeth ran out the alibis and reasons to evade respondent's
demands, she disbursed out of the partnership funds the amount
of P200,000.00 and partially paid the same to respondent.
Petitioner Lilibeth allegedly informed respondent that the
P200,000.00 represented partial payment of the latter's share in
the partnership, with a promise that the former would make the
complete inventory and winding up of the properties of the
business establishment. Despite such commitment, petitioners
allegedly failed to comply with their duty to account, and
continued to benefit from the assets and income of Shellite to
the damage and prejudice of respondent.
On December 19, 1992, petitioners filed a Motion to Dismiss on
the ground that the Securities and Exchange Commission (SEC)
in Manila, not the Regional Trial Court in Zamboanga del Norte
had jurisdiction over the action. Respondent opposed the motion
to dismiss.
On January 12, 1993, the trial court finding the complaint
sufficient in from and substance denied the motion to dismiss.
On January 30, 1993, petitioners filed their Answer with
Compulsory Counter-claims, contending that they are not liable
for partnership shares, unreceived income/profits, interests,
damages and attorney's fees, that respondent does not have a
cause of action against them, and that the trial court has no
jurisdiction over the nature of the action, the SEC being the
agency that has original and exclusive jurisdiction over the case.
As counterclaim, petitioner sought attorney's fees and expenses
of litigation.
On August 2, 1993, petitioner filed a second Motion to Dismiss
this time on the ground that the claim for winding up of
partnership affairs, accounting and recovery of shares in
partnership affairs, accounting and recovery of shares in
partnership assets/properties should be dismissed and
prosecuted against the estate of deceased Jacinto in a probate or
intestate proceeding.

On November 29, 1993, petitioners filed with the trial court a


Motion to Suspend Pre-trial Conference.
On December 13, 1993, the trial court granted the motion to
suspend pre-trial conference.
On November 15, 1994, the Court of Appeals denied the petition
for lack of merit.
On January 16, 1995, this Court denied the petition for review on
certiorari filed by petitioner, "as petitioners failed to show that a
reversible error was committed by the appellate court." 2
On February 20, 1995, entry of judgment was made by the Clerk
of Court and the case was remanded to the trial court on April
26, 1995.
On September 25, 1995, the trial court terminated the pre-trial
conference and set the hearing of the case of January 17, 1996.
Respondent presented his evidence while petitioners were
considered to have waived their right to present evidence for
their failure to attend the scheduled date for reception of
evidence despite notice.
On October 7, 1997, the trial court rendered its Decision ruling
for respondent. The dispositive of the Decision reads:
"WHEREFORE, judgment is hereby rendered in favor of
the plaintiff and against the defendants, as follows:
(1) DIRECTING them to render an accounting
in acceptable form under accounting
procedures and standards of the properties,
assets, income and profits of the Shellite
Gas Appliance Center Since the time of
death of Jacinto L. Sunga, from whom they
continued the business operations including
all businesses derived from Shellite Gas
Appliance Center, submit an inventory, and
appraisal of all these properties, assets,
income, profits etc. to the Court and to
plaintiff for approval or disapproval;

(2) ORDERING them to return and restitute


to the partnership any and all properties,
assets, income and profits they misapplied
and converted to their own use and
advantage the legally pertain to the plaintiff
and account for the properties mentioned in
pars. A and B on pages 4-5 of this petition as
basis;
(3) DIRECTING them to restitute and pay to
the plaintiff shares and interest of the
plaintiff in the partnership of the listed
properties, assets and good will (sic) in
schedules A, B and C, on pages 4-5 of the
petition;
(4) ORDERING them to pay the plaintiff
earned but unreceived income and profits
from the partnership from 1988 to May 30,
1992, when the plaintiff learned of the
closure of the store the sum of P35,000.00
per month, with legal rate of interest until
fully paid;
(5) ORDERING them to wind up the affairs of
the partnership and terminate its business
activities pursuant to law, after delivering to
the plaintiff all the interest, shares,
participation and equity in the partnership,
or the value thereof in money or money's
worth, if the properties are not physically
divisible;
(6) FINDING them especially Lilibeth SungaChan guilty of breach of trust and in bad
faith and hold them liable to the plaintiff the
sum of P50,000.00 as moral and exemplary
damages; and,
(7) DIRECTING them to reimburse and pay
the sum of P25,000.00 as attorney's (sic)
and P25,000.00 as litigation expenses.
NO special pronouncements as to COSTS.
SO ORDERED."3
On October 28, 1997, petitioners filed a Notice of Appeal with the
trial court, appealing the case to the Court of Appeals.
On January 31, 2000, the Court of Appeals dismissed the appeal.
The dispositive portion of the Decision reads:

"WHEREFORE, the instant appeal is dismissed. The


appealed decision is AFFIRMED in all respects." 4
On May 23, 2000, the Court of Appeals denied the motion for
reconsideration filed by petitioner.

Petitioners thus implore this Court to rule that the testimonies of


respondent and his alter ego, Josephine, should not have been
admitted to prove certain claims against a deceased person
(Jacinto), now represented by petitioners.
We are not persuaded.

Hence, this petition wherein petitioner relies upon following


grounds:
"1. The Court of Appeals erred in making a legal
conclusion that there existed a partnership between
respondent Lamberto T. Chua and the late Jacinto L.
Sunga upon the latter'' invitation and offer and that
upon his death the partnership assets and business
were taken over by petitioners.
2. The Court of Appeals erred in making the legal
conclusion that laches and/or prescription did not
apply in the instant case.
3. The Court of Appeals erred in making the legal
conclusion that there was competent and credible
evidence to warrant the finding of a partnership, and
assuming arguendo that indeed there was a
partnership, the finding of highly exaggerated
amounts or values in the partnership assets and
profits."5
Petitioners question the correctness of the finding of the trial
court and the Court of Appeals that a partnership existed
between respondent and Jacinto from 1977 until Jacinto's death.
In the absence of any written document to show such
partnership between respondent and Jacinto, petitioners argues
that these courts were proscribes from hearing the testimonies
of respondent and his witness, Josephine, to prove the alleged
partnership three years after Jacinto's death. To support this
argument, petitioners invoke the "Dead Man's Statute' or
"Survivorship Rule" under Section 23, Rule 130 of the Rules of
Court that provides:
"SEC. 23. Disqualification by reason of death or
insanity of adverse party. Parties or assignors of
parties to a case, or persons in whose behalf a case is
prosecuted, against an executor or administrator or
other representative of a deceased person, or against
a person of unsound mind, upon a claim or demand
against the estate of such deceased person, or against
such person of unsound mind, cannot testify as to any
matter of fact occurring before the death of such
deceased person or before such person became of
unsound mind."

A partnership may be constituted in any form, except where


immovable property of real rights are contributed thereto, in
which case a public instrument shall necessary.6 Hence, based on
the intention of the parties, as gathered from the facts and
ascertained from their language and conduct, a verbal contract
of partnership may arise.7 The essential profits that must be
proven to that a partnership was agreed upon are (1) mutual
contribution to a common stock, and (2) a joint interest in the
profits.8 Understandably so, in view of the absence of the written
contract of partnership between respondent and Jacinto,
respondent resorted to the introduction of documentary and
testimonial evidence to prove said partnership. The crucial issue
to settle then is to whether or not the "Dead Man's Statute"
applies to this case so as to render inadmissible respondent's
testimony and that of his witness, Josephine.
The "Dead Man's Statute" provides that if one party to the
alleged transaction is precluded from testifying by death,
insanity, or other mental disabilities, the surviving party is not
entitled to the undue advantage of giving his own
uncontradicted and unexplained account of the transaction. 9 But
before this rule can be successfully invoked to bar the
introduction of testimonial evidence, it is necessary that:
"1. The witness is a party or assignor of a party to case
or persons in whose behalf a case in prosecuted.
2. The action is against an executor or administrator or
other representative of a deceased person or a person
of unsound mind;
3. The subject-matter of the action is a claim or
demand against the estate of such deceased person or
against person of unsound mind;
4. His testimony refers to any matter of fact of which
occurred before the death of such deceased person or
before such person became of unsound mind."10
Two reasons forestall the application of the "Dead Man's Statute"
to this case.
First, petitioners filed a compulsory counterclaim 11 against
respondents in their answer before the trial court, and with the
filing of their counterclaim, petitioners themselves effectively
removed this case from the ambit of the "Dead Man's

Statute".12 Well entrenched is the rule that when it is the


executor or administrator or representatives of the estates that
sets up the counterclaim, the plaintiff, herein respondent, may
testify to occurrences before the death of the deceased to defeat
the counterclaim.13 Moreover, as defendant in the counterclaim,
respondent is not disqualified from testifying as to matters of
facts occurring before the death of the deceased, said action not
having been brought against but by the estate or representatives
of the deceased.14
Second, the testimony of Josephine is not covered by the "Dead
Man's Statute" for the simple reason that she is not "a party or
assignor of a party to a case or persons in whose behalf a case is
prosecuted." Records show that respondent offered the
testimony of Josephine to establish the existence of the
partnership between respondent and Jacinto. Petitioners'
insistence that Josephine is the alter ego of respondent does not
make her an assignor because the term "assignor" of a party
means "assignor of a cause of action which has arisen, and not
the assignor of a right assigned before any cause of action has
arisen."15 Plainly then, Josephine is merely a witness of
respondent, the latter being the party plaintiff.
We are not convinced by petitioners' allegation that Josephine's
testimony lacks probative value because she was allegedly
coerced coerced by respondent, her brother-in-law, to testify in
his favor, Josephine merely declared in court that she was
requested by respondent to testify and that if she were not
requested to do so she would not have testified. We fail to see
how we can conclude from this candid admission that Josephine's
testimony is involuntary when she did not in any way
categorically say that she was forced to be a witness of
respondent.
Also, the fact that Josephine is the sister of the wife of
respondent does not diminish the value of her testimony since
relationship per se, without more, does not affect the credibility
of witnesses.16
Petitioners' reliance alone on the "Dead Man's Statute" to defeat
respondent's claim cannot prevail over the factual findings of the
trial court and the Court of Appeals that a partnership was
established between respondent and Jacinto. Based not only on
the testimonial evidence, but the documentary evidence as well,
the trial court and the Court of Appeals considered the evidence
for respondent as sufficient to prove the formation of
partnership, albeit an informal one.
Notably, petitioners did not present any evidence in their favor
during trial. By the weight of judicial precedents, a factual matter
like the finding of the existence of a partnership between
respondent and Jacinto cannot be inquired into by this Court on
review.17 This Court can no longer be tasked to go over the proofs
presented by the parties and analyze, assess and weigh them to
ascertain if the trial court and the appellate court were correct in

according superior credit to this or that piece of evidence of one


party or the other.18 It must be also pointed out that petitioners
failed to attend the presentation of evidence of respondent.
Petitioners cannot now turn to this Court to question the
admissibility and authenticity of the documentary evidence of
respondent when petitioners failed to object to the admissibility
of the evidence at the time that such evidence was offered.19
With regard to petitioners' insistence that laches and/or
prescription should have extinguished respondent's claim, we
agree with the trial court and the Court of Appeals that the
action for accounting filed by respondents three (3) years after
Jacinto's death was well within the prescribed period. The Civil
Code provides that an action to enforce an oral contract
prescribes in six (6) years20 while the right to demand an
accounting for a partner's interest as against the person
continuing the business accrues at the date of dissolution, in the
absence of any contrary agreement.21 Considering that the death
of a partner results in the dissolution of the partnership 22, in this
case, it was Jacinto's death that respondent as the surviving
partner had the right to an account of his interest as against
petitioners. It bears stressing that while Jacinto's death dissolved
the partnership, the dissolution did not immediately terminate
the partnership. The Civil Code23 expressly provides that upon
dissolution, the partnership continues and its legal personality is
retained until the complete winding up of its business,
culminating in its termination.24
In a desperate bid to cast doubt on the validity of the oral
partnership between respondent and Jacinto, petitioners
maintain that said partnership that had initial capital of
P200,000.00 should have been registered with the Securities and
Exchange Commission (SEC) since registration is mandated by
the Civil Code, True, Article 1772 of the Civil Code requires that
partnerships with a capital of P3,000.00 or more must register
with the SEC, however, this registration requirement is not
mandatory. Article 1768 of the Civil Code 25 explicitly provides
that the partnership retains its juridical personality even if it fails
to register. The failure to register the contract of partnership
does not invalidate the same as among the partners, so long as
the contract has the essential requisites, because the main
purpose of registration is to give notice to third parties, and it
can be assumed that the members themselves knew of the
contents of their contract.26 In the case at bar, non-compliance
with this directory provision of the law will not invalidate the
partnership considering that the totality of the evidence proves
that respondent and Jacinto indeed forged the partnership in
question.
WHEREFORE, in view of the foregoing, the petition is DENIED and
the appealed decision is AFFIRMED.
SO ORDERED.1wphi1.nt

G.R. No. 107383

February 20, 1996

CECILIA ZULUETA, petitioner,


vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.
DECISION

Dr. Alfredo Martin, as complainant in that case, charged that in


using the documents in evidence, Atty. Felix, Jr. committed
malpractice or gross misconduct because of the injunctive order
of the trial court. In dismissing the complaint against Atty. Felix,
Jr., this Court took note of the following defense of Atty. Felix; Jr.
which it found to be "impressed with merit:"2

MENDOZA, J.:
This is a petition to review the decision of the Court of Appeals,
affirming the decision of the Regional Trial Court of Manila
(Branch X) which ordered petitioner to return documents and
papers taken by her from private respondent's clinic without the
latter's knowledge and consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent
Alfredo Martin. On March 26, 1982, petitioner entered the clinic
of her husband, a doctor of medicine, and in the presence of her
mother, a driver and private respondent's secretary, forcibly
opened the drawers and cabinet in her husband's clinic and took
157 documents consisting of private correspondence between
Dr. Martin and his alleged paramours, greetings cards, cancelled
checks, diaries, Dr. Martin's passport, and photographs. The
documents and papers were seized for use in evidence in a case
for legal separation and for disqualification from the practice of
medicine which petitioner had filed against her husband.
Dr. Martin brought this action below for recovery of the
documents and papers and for damages against petitioner. The
case was filed with the Regional Trial Court of Manila, Branch X,
which, after trial, rendered judgment for private respondent, Dr.
Alfredo Martin, declaring him "the capital/exclusive owner of the
properties described in paragraph 3 of plaintiff's Complaint or
those further described in the Motion to Return and Suppress"
and ordering Cecilia Zulueta and any person acting in her behalf
to a immediately return the properties to Dr. Martin and to pay
him P5,000.00, as nominal damages; P5,000.00, as moral
damages and attorney's fees; and to pay the costs of the suit.
The writ of preliminary injunction earlier issued was made final
and petitioner Cecilia Zulueta and her attorneys and
representatives were enjoined from "using or
submitting/admitting as evidence" the documents and papers in
question. On appeal, the Court of Appeals affirmed the decision
of the Regional Trial Court. Hence this petition.
There is no question that the documents and papers in question
belong to private respondent, Dr. Alfredo Martin, and that they
were taken by his wife, the herein petitioner, without his
knowledge and consent. For that reason, the trial court declared
the documents and papers to be properties of private
respondent, ordered petitioner to return them to private
respondent and enjoined her from using them in evidence. In
appealing from the decision of the Court of Appeals affirming the
trial court's decision, petitioner's only ground is that in Alfredo
Martin v. Alfonso Felix, Jr.,1 this Court ruled that the documents
and papers (marked as Annexes A-1 to J-7 of respondent's
comment in that case) were admissible in evidence and,
therefore, their use by petitioner's attorney, Alfonso Felix did not
constitute malpractice or gross misconduct, For this reason it is
contended that the Court of Appeals erred in affirming the
decision of the trial court instead of dismissing private
respondent's complaint.
Petitioner's contention has no merit. The case against Atty. Felix,
Jr. was for disbarment. Among other things, private respondent,

On the alleged malpractice or gross misconduct of


respondent [Alfonso Felix, Jr.], he maintains that:
....
4. When respondent refiled Cecilia's case for legal
separation before the Pasig Regional Trial Court, there
was admittedly an order of the Manila Regional Trial
Court prohibiting Cecilia from using the documents
Annex "A-1 to J-7." On September 6, 1983, however
having appealed the said order to this Court on a
petition for certiorari, this Court issued a restraining
order on aforesaid date which order temporarily set
aside the order of the trial court. Hence, during the
enforceability of this Court's order, respondent's
request for petitioner to admit the genuineness and
authenticity of the subject annexes cannot be looked
upon as malpractice. Notably, petitioner Dr. Martin
finally admitted the truth and authenticity of the
questioned annexes, At that point in time, would it
have been malpractice for respondent to use
petitioner's admission as evidence against him in the
legal separation case pending in the Regional Trial
Court of Makati? Respondent submits it is not
malpractice.
Significantly, petitioner's admission was done not thru
his counsel but by Dr. Martin himself under oath, Such
verified admission constitutes an affidavit, and,
therefore, receivable in evidence against him.
Petitioner became bound by his admission. For Cecilia
to avail herself of her husband's admission and use the
same in her action for legal separation cannot be
treated as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case
amounts to no more than a declaration that his use of the
documents and papers for the purpose of securing Dr. Martin's
admission as to their genuiness and authenticity did not
constitute a violation of the injunctive order of the trial court. By
no means does the decision in that case establish the
admissibility of the documents and papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted
of the charge of violating the writ of preliminary injunction issued
by the trial court, it was only because, at the time he used the
documents and papers, enforcement of the order of the trial
court was temporarily restrained by this Court. The TRO issued
by this Court was eventually lifted as the petition
for certiorari filed by petitioner against the trial court's order was
dismissed and, therefore, the prohibition against the further use
of the documents and papers became effective again.

Indeed the documents and papers in question are inadmissible in


evidence. The constitutional injunction declaring "the privacy of
communication and correspondence [to be] inviolable"3 is no less
applicable simply because it is the wife (who thinks herself

aggrieved by her husband's infidelity) who is the party against


whom the constitutional provision is to be enforced. The only
exception to the prohibition in the Constitution is if there is a
"lawful order [from a] court or when public safety or order
requires otherwise, as prescribed by law."4 Any violation of this
provision renders the evidence obtained inadmissible "for any
purpose in any proceeding." 5
The intimacies between husband and wife do not justify any one
of them in breaking the drawers and cabinets of the other and in
ransacking them for any telltale evidence of marital infidelity. A
person, by contracting marriage, does not shed his/her integrity
or his right to privacy as an individual and the constitutional
protection is ever available to him or to her.
The law insures absolute freedom of communication between the
spouses by making it privileged. Neither husband nor wife may
testify for or against the other without the consent of the
affected spouse while the marriage subsists.6 Neither may be
examined without the consent of the other as to any
communication received in confidence by one from the other
during the marriage, save for specified exceptions.7 But one
thing is freedom of communication; quite another is a
compulsion for each one to share what one knows with the other.
And this has nothing to do with the duty of fidelity that each
owes to the other.
WHEREFORE, the petition for review is DENIED for lack of merit.
SO ORDERED.

G.R. Nos. 115439-41 July 16, 1997


PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HONORABLE SANDIGANBAYAN, MANSUETO V. HONRADA,
CEFERINO S. PAREDES, JR. and GENEROSO S.
SANSAET, respondents.

REGALADO, J.:
Through the special civil action for certiorari at bar, petitioner
seeks the annulment of the resolution of respondent
Sandiganbayan, promulgated on December 22, 1993, which
denied petitioner's motion for the discharge of respondent
Generoso S. Sansaet to be utilized as a state witness, and its
resolution of March 7, 1994 denying the motion for
reconsideration of its preceding disposition. 1
The records show that during the dates material to this case,
respondent Honrada was the Clerk of Court and Acting
Stenographer of the First Municipal Circuit Trial Court, San
Francisco-Bunawan-Rosario in Agusan del Sur. Respondent
Paredes was successively the Provincial Attorney of Agusan del
Sur, then Governor of the same province, and is at present a
Congressman. Respondent Sansaet was a practicing attorney
who served as counsel for Paredes in several instances pertinent
to the criminal charges involved in the present recourse.
The same records also represent that sometime in 1976,
respondent Paredes applied for a free patent over Lot No. 3097A, Pls-67 of the Rosario Public Land Subdivision Survey. His
application was approved and, pursuant to a free patent granted
to him, an original certificate of title was issued in his favor for
that lot which is situated in thepoblacion of San Francisco,
Agusan del Sur.
However, in 1985, the Director of Lands filed an action for the
cancellation of respondent Paredes' patent and certificate of title
since the land had been designated and reserved as a school site
in the aforementioned subdivision survey. The trial court
rendered judgment 3 nullifying said patent and title after finding
that respondent Paredes had obtained the same through
fraudulent misrepresentations in his application. Pertinently,
respondent Sansaet served as counsel of Paredes in that civil
case. 4
2

Consequent to the foregoing judgment of the trial court, upon


the subsequent complaint of the Sangguniang Bayan and the
preliminary investigation conducted thereon, an information for
perjury 5 was filed against respondent Paredes in the Municipal

Circuit Trial Court. 6 On November 27, 1985, the Provincial Fiscal


was, however, directed by the Deputy Minister of Justice to move
for the dismissal of the case on the ground inter alia of
prescription, hence the proceedings were terminated. 7 In this
criminal case, respondent Paredes was likewise represented by
respondent Sansaet as counsel.

stenographic notes supposedly taken during the arraignment of


Paredes on the perjury charge. 13These falsified documents were
annexed to respondent Paredes' motion for reconsideration of
the Tanodbayan resolution for the filing of a graft charge against
him, in order to support his contention that the same would
constitute double jeopardy.

Nonetheless, respondent Sansaet was thereafter haled before


the Tanodbayan for preliminary investigation on the charge that,
by using his former position as Provincial Attorney to influence
and induce the Bureau of Lands officials to favorably act on his
application for free patent, he had violated Section 3(a) of
Republic Act No. 3019, as amended. For the third time,
respondent Sansaet was Paredes' counsel of record therein.

In support of his claim, Gelacio attached to his letter a


certification that no notice of arraignment was ever received by
the Office of the Provincial Fiscal of Agusan del Sur in connection
with that perjury case; and a certification of Presiding Judge
Ciriaco Ario that said perjury case in his court did not reach the
arraignment stage since action thereon was suspended pending
the review of the case by the Department of Justice. 14

On August 29, 1988, the Tanodbayan, issued a


resolution 8 recommending the criminal prosecution of
respondent Paredes. Atty. Sansaet, as counsel for his aforenamed
co-respondent, moved for reconsideration and, because of its
legal significance in this case, we quote some of his allegations
in that motion:

Respondents filed their respective counter-affidavits, but Sansaet


subsequently discarded and repudiated the submissions he had
made in his counter-affidavit. In a so-called Affidavit of
Explanations and Rectifications, 15respondent Sansaet revealed
that Paredes contrived to have the graft case under preliminary
investigation dismissed on the ground of double jeopardy by
making it appear that the perjury case had been dismissed by
the trial court after he had been arraigned therein.

. . . respondent had been charged already by


the complainants before the Municipal
Circuit Court of San Francisco, Agusan del
Sur, went to jail on detention in 1984 under
the same set of facts and the same evidence
. . . but said case after arraignment, was
ordered dismissed by the court upon
recommendation of the Department of
Justice. Copy of the dismissal
order, certificate of arraignmentand
the recommendation of the Department of
Justice are hereto attached for ready
reference; thus the filing of this case will be
a case of double jeopardy for respondent
herein . . . 9 (Emphasis supplied.)
A criminal case was subsequently filed with the
Sandiganbayan 10 charging respondent Paredes with a violation
of Section 3 (a) of Republic Act No. 3019, as amended. However,
a motion to quash filed by the defense was later granted in
respondent court's resolution of August 1, 1991 11 and the case
was dismissed on the ground of prescription.
On January 23, 1990, one Teofilo Gelacio, a taxpayer who had
initiated the perjury and graft charges against respondent
Paredes, sent a letter to the Ombudsman seeking the
investigation of the three respondents herein for falsification of
public documents. 12 He claimed that respondent Honrada, in
conspiracy with his herein co-respondents, simulated and
certified as true copies certain documents purporting to be a
notice of arraignment, dated July 1, 1985, and transcripts of

For that purpose, the documents which were later filed by


respondent Sansaet in the preliminary investigation were
prepared and falsified by his co-respondents in this case in the
house of respondent Paredes. To evade responsibility for his own
participation in the scheme, he claimed that he did so upon the
instigation and inducement of respondent Paredes. This was
intended to pave the way for his discharge as a government
witness in the consolidated cases, as in fact a motion therefor
was filed by the prosecution pursuant to their agreement.
Withal, in a resolution 16 dated February 24, 1992, the
Ombudsman approved the filing of falsification charges against
all the herein private respondents. The proposal for the
discharge of respondent Sansaet as a state witness was rejected
by the Ombudsman on this evaluative legal position:
. . . Taking his explanation, it is difficult to
believe that a lawyer of his stature, in the
absence of deliberate intent to conspire,
would be unwittingly induced by another to
commit a crime. As counsel for the accused
in those criminal cases, Atty. Sansaet had
control over the case theory and the
evidence which the defense was going to
present. Moreover, the testimony or
confession of Atty. Sansaet falls under the
mantle of privileged communication
between the lawyer and his client which
may be objected to, if presented in the trial.

The Ombudsman refused to reconsider that resolution 17 and,


ostensibly to forestall any further controversy, he decided to file
separate informations for falsification of public documents
against each of the herein respondents. Thus, three criminal
cases, 18 each of which named one of the three private
respondents here as the accused therein, were filed in the graft
court. However, the same were consolidated for joint trial in the
Second Division of the Sandiganbayan.
As stated at the outset, a motion was filed by the People on July
27, 1993 for the discharge of respondent Sansaet as a state
witness. It was submitted that all the requisites therefor,
as provided in Section 9, Rule 119 of the Rules of Court, were
satisfied insofar as respondent Sansaet was concerned. The
basic postulate was that, except for the eyewitness testimony of
respondent Sansaet, there was no other direct evidence to prove
the confabulated falsification of documents by respondents
Honrada and Paredes.
Unfortunately for the prosecution, respondent Sandiganbayan,
hewing to the theory of the attorney-client privilege adverted to
by the Ombudsman and invoked by the two other private
respondents in their opposition to the prosecution's motion,
resolved to deny the desired discharge on this ratiocination:
From the evidence adduced, the opposition
was able to establish that client and lawyer
relationship existed between Atty. Sansaet
and Ceferino Paredes, Jr., before, during and
after the period alleged in the information.
In view of such relationship, the facts
surrounding the case, and other confidential
matter must have been disclosed by
accused Paredes, as client, to accused
Sansaet, as his lawyer in his professional
capacity. Therefore, the testimony of Atty.
Sansaet on the facts surrounding the offense
charged in the information is privileged. 19
Reconsideration of said resolution having been likewise
denied, 20 the controversy was elevated to this Court by the
prosecution in an original action for the issuance of the
extraordinary writ of certiorari against respondent
Sandiganbayan.
The principal issues on which the resolution of the petition at bar
actually turns are therefore (1) whether or not the projected
testimony of respondent Sansaet, as proposed state witness, is
barred by the attorney-client privilege; and (2) whether or not, as
a consequence thereof, he is eligible for discharge to testify as
a particeps criminis.
As already stated, respondent Sandiganbayan ruled that due to
the lawyer-client relationship which existed between herein

respondents Paredes and Sansaet during the relevant periods,


the facts surrounding the case and other confidential matters
must have been disclosed by respondent Paredes, as client, to
respondent Sansaet, as his lawyer. Accordingly, it found "no
reason to discuss it further since Atty. Sansaet cannot be
presented as a witness against accused Ceferino S. Paredes, Jr.
without the latter's consent." 21
The Court is of a contrary persuasion. The attorney-client
privilege cannot apply in these cases, as the facts thereof and
actuations of both respondents therein constitute an exception
to the rule. For a clearer understanding of that evidential rule,
we will first sweep aside some distracting mental cobwebs in
these cases.
1. It may correctly be assumed that there was a confidential
communication made by Paredes to Sansaet in connection with
Criminal Cases Nos. 17791-93 for falsification before respondent
court, and this may reasonably be expected since Paredes was
the accused and Sansaet his counsel therein. Indeed, the fact
that Sansaet was called to witness the preparation of the
falsified documents by Paredes and Honrada was as eloquent a
communication, if not more, than verbal statements being made
to him by Paredes as to the fact and purpose of such falsification.
It is significant that the evidentiary rule on this point has always
referred to "any communication," without distinction or
qualification. 22
In the American jurisdiction from which our present evidential
rule was taken, there is no particular mode by which a
confidential communication shall be made by a client to his
attorney. The privilege is not confined to verbal or written
communications made by the client to his attorney but extends
as well to information communicated by the client to the
attorney by other means. 23
Nor can it be pretended that during the entire process,
considering their past and existing relations as counsel and client
and, further, in view of the purpose for which such falsified
documents were prepared, no word at all passed between
Paredes and Sansaet on the subject matter of that criminal act.
The clincher for this conclusion is the undisputed fact that said
documents were thereafter filed by Sansaet in behalf of Paredes
as annexes to the motion for reconsideration in the preliminary
investigation of the graft case before the Tanodbayan. 24 Also,
the acts and words of the parties during the period when the
documents were being falsified were necessarily confidential
since Paredes would not have invited Sansaet to his house and
allowed him to witness the same except under conditions of
secrecy and confidence.
2. It is postulated that despite such complicity of Sansaet at the
instance of Paredes in the criminal act for which the latter stands
charged, a distinction must be made between confidential
communications relating to past crimes already committed, and

future crimes intended to be committed, by the client.


Corollarily, it is admitted that the announced intention of a client
to commit a crime is not included within the confidences which
his attorney is bound to respect. Respondent court appears,
however, to believe that in the instant case it is dealing with a
past crime, and that respondent Sansaet is set to testify on
alleged criminal acts of respondents Paredes and Honrada that
have already been committed and consummated.
The Court reprobates the last assumption which is flawed by a
somewhat inaccurate basis. It is true that by now, insofar as the
falsifications to be testified to in respondent court are concerned,
those crimes were necessarily committed in the past. But for the
application of the attorney-client privilege, however, the period
to be considered is the date when the privileged communication
was made by the client to the attorney in relation to either a
crime committed in the past or with respect to a crime intended
to be committed in the future. In other words, if the client seeks
his lawyer's advice with respect to a crime that the former has
theretofore committed, he is given the protection of a virtual
confessional seal which the attorney-client privilege declares
cannot be broken by the attorney without the client's consent.
The same privileged confidentiality, however, does not attach
with regard to a crime which a client intends to commit
thereafter or in the future and for purposes of which he seeks the
lawyer's advice.
Statements and communications regarding the commission of a
crime already committed, made by a party who committed it, to
an attorney, consulted as such, are privileged communications.
Contrarily, the unbroken stream of judicial dicta is to the effect
that communications between attorney and client having to do
with the client'scontemplated criminal acts, or in aid or
furtherance thereof, are not covered by the cloak of
privileges ordinarily existing in reference to communications
between attorney and client. 25 (Emphases supplied.)
3. In the present cases, the testimony sought to be elicited from
Sansate as state witness are the communications made to him
by physical acts and/or accompanying words of Parades at the
time he and Honrada, either with the active or passive
participation of Sansaet, were about to falsify, or in the process
of falsifying, the documents which were later filed in the
Tanodbayan by Sansaet and culminated in the criminal charges
now pending in respondent Sandiganbayan. Clearly, therefore,
the confidential communications thus made by Paredes to
Sansaet were for purposes of and in reference to the crime of
falsification which had not yet been committed in the past by
Paredes but which he, in confederacy with his present corespondents, later committed. Having been made for purposes of
a future offense, those communications are outside the pale of
the attorney-client privilege.
4. Furthermore, Sansaet was himself a conspirator in the
commission of that crime of falsification which he, Paredes and

Honrada concocted and foisted upon the authorities. It is well


settled that in order that a communication between a lawyer and
his client may be privileged, it must be for a lawful purpose or in
furtherance of a lawful end. The existence of an unlawful
purpose prevents the privilege from attaching. 26 In fact, it has
also been pointed out to the Court that the "prosecution of the
honorable relation of attorney and client will not be permitted
under the guise of privilege, and every communication made to
an attorney by a client for a criminal purpose is a conspiracy or
attempt at a conspiracy which is not only lawful to divulge, but
which the attorney under certain circumstances may be bound to
disclose at once in the interest of justice." 27
It is evident, therefore, that it was error for respondent
Sandiganbayan to insist that such unlawful communications
intended for an illegal purpose contrived by conspirators are
nonetheless covered by the so-called mantle of privilege. To
prevent a conniving counsel from revealing the genesis of a
crime which was later committed pursuant to a conspiracy,
because of the objection thereto of his conspiring client, would
be one of the worst travesties in the rules of evidence and
practice in the noble profession of law.
II
On the foregoing premises, we now proceed to the consequential
inquiry as to whether respondent Sansaet qualifies, as
a particeps criminis, for discharge from the criminal prosecution
in order to testify for the State. Parenthetically, respondent court,
having arrived at a contrary conclusion on the preceding issue,
did not pass upon this second aspect and the relief sought by the
prosecution which are now submitted for our resolution in the
petition at bar. We shall, however, first dispose likewise of some
ancillary questions requiring preludial clarification.
1. The fact that respondent Sandiganbayan did not fully pass
upon the query as to whether or not respondent Sansaet was
qualified to be a state witness need not prevent this Court from
resolving that issue as prayed for by petitioner. Where the
determinative facts and evidence have been submitted to this
Court such that it is in a position to finally resolve the dispute, it
will be in the pursuance of the ends of justice and the
expeditious administration thereof to resolve the case on the
merits, instead of remanding it to the trial court. 28
2. A reservation is raised over the fact that the three private
respondents here stand charged in three separate informations.
It will be recalled that in its resolution of February 24, 1992, the
Ombudsman recommended the filing of criminal charges for
falsification of public documents against all the respondents
herein. That resolution was affirmed but, reportedly in order to
obviate further controversy, one information was filed against
each of the three respondents here, resulting in three
informations for the same acts of falsification.

This technicality was, however, sufficiently explained away


during the deliberations in this case by the following discussion
thereof by Mr. Justice Davide, to wit:
Assuming no substantive impediment exists
to block Sansaet's discharge as state
witness, he can, nevertheless, be discharged
even if indicted under a separate
information. I suppose the three cases were
consolidated for joint trial since they were all
raffled to the Second Division of the
Sandiganbayan. Section 2, Rule XV of the
Revised Rules of the Sandiganbayan allows
consolidation in only one Division of cases
arising from the same incident or series of
incidents, or involving common questions of
law and fact. Accordingly, for all legal intents
and purposes, Sansaet stood as co-accused
and he could be discharged as state witness.
It is of no moment that he was charged
separately from his co-accused. While
Section 9 of Rule 119 of the 1985 Rules of
Criminal Procedure uses the word jointly,
which was absent in the old provision, the
consolidated and joint trial has the effect of
making the three accused co-accused or
joint defendants, especially considering that
they are charged for the same offense. In
criminal law, persons indicted for the same
offense and tried together are called joint
defendants.
As likewise submitted therefor by Mr. Justice Francisco along the
same vein, there having been a consolidation of the three cases,
the several actions lost their separate identities and became a
single action in which a single judgment is rendered, the same as
if the different causes of action involved had originally been
joined in a single action. 29
Indeed, the former provision of the Rules referring to the
situation "(w)hen two or more persons are charged with the
commission of a certain offense" was too broad and indefinite;
hence the word "joint" was added to indicate the identity of the
charge and the fact that the accused are all together charged
therewith substantially in the same manner in point of
commission and time. The word "joint" means "common to two
or more," as "involving the united activity of two or more," or
"done or produced by two or more working together," or "shared
by or affecting two or more. 30 Had it been intended that all the
accused should always be indicted in one and the same
information, the Rules could have said so with facility, but it did
not so require in consideration of the circumstances obtaining in
the present case and the problems that may arise from
amending the information. After all, the purpose of the Rule can
be achieved by consolidation of the cases as an alternative
mode.

2. We have earlier held that Sansaet was a conspirator in the


crime of falsification, and the rule is that since in a conspiracy
the act of one is the act of all, the same penalty shall be imposed
on all members of the conspiracy. Now, one of the requirements
for a state witness is that he "does not appear to be the most
guilty." 31 not that he must be the least guilty 32 as is so often
erroneously framed or submitted. The query would then be
whether an accused who was held guilty by reason of
membership in a conspiracy is eligible to be a state witness.
To be sure, in People vs. Ramirez, et al.

33

we find this obiter:

It appears that Apolonio Bagispas was the


real mastermind. It is believable that he
persuaded the others to rob Paterno, not to
kill him for a promised fee. Although he did
not actually commit any of the stabbings, it
was a mistake to discharge Bagispas as a
state witness. All the perpetrators of the
offense, including him, were bound in a
conspiracy that made them equally guilty.
However, prior thereto, in People vs. Roxas, et al., 34 two
conspirators charged with five others in three separate
informations for multiple murder were discharged and used as
state witnesses against their confederates. Subsequent thereto,
in Lugtu, et al. vs. Court of Appeals, et al., 35 one of the coconspirators was discharged from the information charging him
and two others with the crime of estafa. The trial court found
that he was not the most guilty as, being a poor and ignorant
man, he was easily convinced by his two co-accused to open the
account with the bank and which led to the commission of the
crime.
On appeal, this Court held that the finding of respondent
appellate court that Lugtu was just as guilty as his co-accused,
and should not be discharged as he did not appear to be not the
most guilty, is untenable. In other words, the Court took into
account the gravity or nature of the acts committed by the
accused to be discharged compared to those of his co-accused,
and not merely the fact that in law the same or equal penalty is
imposable on all of them.
Eventually, what was just somehow assumed but not explicity
articulated found expression in People vs. Ocimar, et al., 36 which
we quote in extenso:

Ocimar contends that in the case at bar Bermudez does not


satisfy the conditions for the discharge of a co-accused to
become a state witness. He argues that no accused in a
conspiracy can lawfully be discharged and utilized as a state
witness, for not one of them could satisfy the requisite of
appearing not to be the most guilty. Appellant asserts that since
accused Bermudez was part of the conspiracy, he is equally
guilty as the others.
We do not agree. First, there is absolute necessity for the
testimony of Bermudez. For, despite the presentation of four (4)
other witnesses, none of them could positively identify the
accused except Bermudez who was one of those who pulled the
highway heist which resulted not only in the loss of cash, jewelry
and other valuables, but even the life of Capt. Caeba, Jr. It was
in fact the testimony of Bermudez that clinched the case for the
prosecution. Second, without his testimony, no other direct
evidence was available for the prosecution to prove the elements
of the crime. Third, his testimony could be, as indeed it was,
substantially corroborated in its material points as indicated by
the trial court in its well-reasoned decision. Fourth, he does not
appear to be the most guilty. As the evidence reveals, he was
only invited to a drinking party without having any prior
knowledge of the plot to stage a highway robbery. But even
assuming that he later became part of the conspiracy, he does
not appear to be the most guilty. What the law prohibits is that
the most guilty will be set free while his co-accused who are less
guilty will be sent to jail. And by "most guilty" we mean the
highest degree of culpability in terms of participation in the
commission of the offense and not necessarily the severity of
the penalty imposed. While all the accused may be given the
same penalty by reason of conspiracy, yet one may be
considered least guilty if We take into account his degree of
participation in the perpetration of the offense. Fifth, there is no
evidence that he has at any time been convicted of any offense
involving moral turpitude.
xxx xxx xxx
Thus, We agree with the observations of the
Solicitor General that the rule on the
discharge of an accused to be utilized as
state witness clearly looks at his actual and
individual participation in the commission of
the crime, which may or may not have been
perpetrated in conspiracy with the other
accused. Since Bermudez was not
individually responsible for the killing
committed on the occasion of the robbery
except by reason of conspiracy, it cannot be
said then that Bermudez appears to be the
most guilty. Hence, his discharge to be a
witness for the government is clearly
warranted. (Emphasis ours.)

The rule of equality in the penalty to be imposed upon


conspirators found guilty of a criminal offense is based
on the concurrence of criminal intent in their minds
and translated into concerted physical action although
of varying acts or degrees of depravity. Since the
Revised Penal Code is based on the classical school of
thought, it is the identity of the mens rea which is
considered the predominant consideration and,
therefore, warrants the imposition of the same penalty
on the consequential theory that the act of one is
thereby the act of all.
Also, this is an affair of substantive law which should
not be equated with the procedural rule on the
discharge of particeps criminis. This adjective device is
based on other considerations, such as the need for
giving immunity to one of them in order that not all
shall escape, and the judicial experience that the
candid admission of an accused regarding his
participation is a guaranty that he will testify truthfully.
For those reasons, the Rules provide for certain
qualifying criteria which, again, are based on judicial
experience distilled into a judgmental policy.
III
The Court is reasonably convinced, and so holds, that the other
requisites for the discharge of respondent Sansaet as a state
witness are present and should have been favorably appreciated
by the Sandiganbayan.
Respondent Sansaet is the only cooperative eyewitness to the
actual commission of the falsification charged in the criminal
cases pending before respondent court, and the prosecution is
faced with the formidable task of establishing the guilt of the two
other co-respondents who steadfastly deny the charge and
stoutly protest their innocence. There is thus no other direct
evidence available for the prosecution of the case, hence there is
absolute necessity for the testimony of Sansaet whose discharge
is sought precisely for that purpose. Said respondent has
indicated his conformity thereto and has, for the purposes
required by the Rules, detailed the substance of his projected
testimony in his Affidavit of Explanation and Rectifications.
His testimony can be substantially corroborated on its material
points by reputable witnesses, identified in the basic petition
with a digest of their prospective testimonies, as follows: Judge
Ciriaco C. Ario, Municipal Circuit Trial Court in San Francisco,
Agusan del Sur; Provincial Prosecutor and Deputized
Ombudsman Prosecutor Claudio A. Nistal; Teofilo Gelacio, private
complainant who initiated the criminal cases through his lettercomplaint; Alberto Juvilan of the Sangguniang Bayan of San
Fernando, Agusan del Sur, who participated in the resolution
asking their Provincial Governor to file the appropriate case

against respondent Paredes, and Francisco Macalit, who obtained


the certification of non-arraignment from Judge Ario.
On the final requirement of the Rules, it does not appear that
respondent Sansaet has at any time been convicted of any
offense involving moral turpitude. Thus, with the confluence of
all the requirements for the discharge of this respondent, both
the Special Prosecutor and the Solicitor General strongly urge
and propose that he be allowed to testify as a state witness.
This Court is not unaware of the doctrinal rule that, on this
procedural aspect, the prosecution may propose but it is for the
trial court, in the exercise of its sound discretion, to determine
the merits of the proposal and make the corresponding
disposition. It must be emphasized, however, that such
discretion should have been exercised, and the disposition taken
on a holistic view of all the facts and issues herein discussed,
and not merely on the sole issue of the applicability of the
attorney-client privilege.
This change of heart and direction respondent Sandiganbayan
eventually assumed, after the retirement of two members of its
Second Division 37 and
the reconstitution thereof. In an inversely anticlimactic
Manifestation and Comment 38 dated June 14, 1995, as required
by this Court in its resolution on December 5, 1994, the
chairman and new members thereof 39 declared:
4) That the questioned Resolutions of
December 22, 1993 and March 7, 1994 upon
which the Petition for Certiorari filed by the
prosecution are based, was penned by
Associate Justice Narciso T. Atienza and
concurred in by the undersigned and
Associate Justice Augusto M. Amores;
5) That while the legal issues involved had
been already discussed and passed upon by
the Second Division in the aforesaid
Resolution, however, after going over the
arguments submitted by the SolicitorGeneral and re-assessing Our position on the
matter, We respectfully beg leave of the
Honorable Supreme Court to manifest that
We are amenable to setting aside the
questioned Resolutions and to grant the
prosecution's motion to discharge accused
Generoso Sansaet as state witness, upon
authority of the Honorable Supreme Court
for the issuance of the proper Resolution to
that effect within fifteen (15) days from
notice thereof.

WHEREFORE, the writ of certiorari prayed for is hereby granted


SETTING ASIDE the impunged resolutions and ORDERING that
the present reliefs sought in these cases by petitioner be allowed
and given due course by respondent Sandiganbayan.
SO ORDERED.

G.R. No. 105938 September 20, 1996


TEODORO R. REGALA, EDGARDO J. ANGARA, AVELINO V.
CRUZ, JOSE C. CONCEPCION, ROGELIO A. VINLUAN,
VICTOR P. LAZATIN and EDUARDO U. ESCUETA, petitioners,
vs.
THE HONORABLE SANDIGANBAYAN, First Division,
REPUBLIC OF THE PHILIPPINES, ACTING THROUGH THE
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, and
RAUL S. ROCO, respondents.
G.R. No. 108113 September 20, 1996
PARAJA G. HAYUDINI, petitioner,
vs.
THE SANDIGANBAYAN and THE REPUBLIC OF THE
PHILIPPINES, respondents.

KAPUNAN, J.:
These case touch the very cornerstone of every State's judicial
system, upon which the workings of the contentious and
adversarial system in the Philippine legal process are based
the sanctity of fiduciary duty in the client-lawyer relationship.
The fiduciary duty of a counsel and advocate is also what makes
the law profession a unique position of trust and confidence,
which distinguishes it from any other calling. In this instance, we
have no recourse but to uphold and strengthen the mantle of
protection accorded to the confidentiality that proceeds from the
performance of the lawyer's duty to his client.
The facts of the case are undisputed.
The matters raised herein are an offshoot of the institution of the
Complaint on July 31, 1987 before the Sandiganbayan by the
Republic of the Philippines, through the Presidential Commission
on Good Government against Eduardo M. Cojuangco, Jr., as one
of the principal defendants, for the recovery of alleged ill-gotten
wealth, which includes shares of stocks in the named
corporations in PCGG Case No. 33 (Civil Case No. 0033), entitled
"Republic of the Philippines versus Eduardo Cojuangco, et al." 1
Among the dependants named in the case are herein petitioners
Teodoro Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C.
Concepcion, Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U.
Escueta and Paraja G. Hayudini, and herein private respondent
Raul S. Roco, who all were then partners of the law firm Angara,
Abello, Concepcion, Regala and Cruz Law Offices (hereinafter
referred to as the ACCRA Law Firm). ACCRA Law Firm performed

legal services for its clients, which included, among others, the
organization and acquisition of business associations and/or
organizations, with the correlative and incidental services where
its members acted as incorporators, or simply, as stockholders.
More specifically, in the performance of these services, the
members of the law firm delivered to its client documents which
substantiate the client's equity holdings, i.e., stock certificates
endorsed in blank representing the shares registered in the
client's name, and a blank deed of trust or assignment covering
said shares. In the course of their dealings with their clients, the
members of the law firm acquire information relative to the
assets of clients as well as their personal and business
circumstances. As members of the ACCRA Law Firm, petitioners
and private respondent Raul Roco admit that they assisted in the
organization and acquisition of the companies included in Civil
Case No. 0033, and in keeping with the office practice, ACCRA
lawyers acted as nominees-stockholders of the said corporations
involved in sequestration proceedings. 2
On August 20, 1991, respondent Presidential Commission on
Good Government (hereinafter referred to as respondent PCGG)
filed a "Motion to Admit Third Amended Complaint" and "Third
Amended Complaint" which excluded private respondent Raul S.
Roco from the complaint in PCGG Case No. 33 as partydefendant. 3Respondent PCGG based its exclusion of private
respondent Roco as party-defendant on his undertaking that he
will reveal the identity of the principal/s for whom he acted as
nominee/stockholder in the companies involved in PCGG Case
No. 33. 4
Petitioners were included in the Third Amended Complaint on the
strength of the following allegations:
14. Defendants Eduardo Cojuangco, Jr.,
Edgardo J. Angara, Jose C. Concepcion,
Teodoro Regala, Avelino V. Cruz, Rogelio A.
Vinluan, Eduardo U. Escueta, Paraja G.
Hayudini and Raul Roco of the Angara
Concepcion Cruz Regala and Abello law
offices (ACCRA) plotted, devised, schemed
conspired and confederated with each other
in setting up, through the use of the coconut
levy funds, the financial and corporate
framework and structures that led to the
establishment of UCPB, UNICOM, COCOLIFE,
COCOMARK, CIC, and more than twenty
other coconut levy funded corporations,
including the acquisition of San Miguel
Corporation shares and its
institutionalization through presidential
directives of the coconut monopoly. Through
insidious means and machinations, ACCRA,
being the wholly-owned investment arm,
ACCRA Investments Corporation, became

the holder of approximately fifteen million


shares representing roughly 3.3% of the
total outstanding capital stock of UCPB as of
31 March 1987. This ranks ACCRA
Investments Corporation number 44 among
the top 100 biggest stockholders of UCPB
which has approximately 1,400,000
shareholders. On the other hand, corporate
books show the name Edgardo J. Angara as
holding approximately 3,744 shares as of
February, 1984. 5
In their answer to the Expanded Amended Complaint, petitioners
ACCRA lawyers alleged that:
4.4 Defendants-ACCRA lawyers' participation
in the acts with which their codefendants
are charged, was in furtherance of
legitimate lawyering.
4.4.1 In the course of
rendering professional
and legal services to
clients, defendantsACCRA lawyers, Jose C.
Concepcion, Teodoro D.
Regala, Rogelio A.
Vinluan and Eduardo U.
Escueta, became
holders of shares of
stock in the
corporations listed
under their respective
names in Annex "A" of
the expanded Amended
Complaint as
incorporating or
acquiring stockholders
only and, as such, they
do not claim any
proprietary interest in
the said shares of stock.
4.5 Defendant ACCRA-lawyer Avelino V. Cruz
was one of the incorporators in 1976 of
Mermaid Marketing Corporation, which was
organized for legitimate business purposes
not related to the allegations of the
expanded Amended Complaint. However, he
has long ago transferred any material
interest therein and therefore denies that
the "shares" appearing in his name in Annex
"A" of the expanded Amended Complaint are
his assets. 6

Petitioner Paraja Hayudini, who had separated from ACCRA law


firm, filed a separate answer denying the allegations in the
complaint implicating him in the alleged ill-gotten wealth. 7
Petitioners ACCRA lawyers subsequently filed their "COMMENT
AND/OR OPPOSITION" dated October 8, 1991 with CounterMotion that respondent PCGG similarly grant the same treatment
to them (exclusion as parties-defendants) as accorded private
respondent Roco. 8 The Counter-Motion for dropping petitioners
from the complaint was duly set for hearing on October 18, 1991
in accordance with the requirements of Rule 15 of the Rules of
Court.
In its "Comment," respondent PCGG set the following conditions
precedent for the exclusion of petitioners, namely: (a) the
disclosure of the identity of its clients; (b) submission of
documents substantiating the lawyer-client relationship; and (c)
the submission of the deeds of assignments petitioners executed
in favor of its client covering their respective
shareholdings. 9
Consequently, respondent PCGG presented supposed proof to
substantiate compliance by private respondent Roco of the
conditions precedent to warrant the latter's exclusion as partydefendant in PCGG Case No. 33, to wit: (a) Letter to respondent
PCGG of the counsel of respondent Roco dated May 24, 1989
reiterating a previous request for reinvestigation by the PCGG in
PCGG Case No. 33; (b) Affidavit dated March 8, 1989 executed by
private respondent Roco as Attachment to the letter aforestated
in (a); and (c) Letter of the Roco, Bunag, and Kapunan Law
Offices dated September 21, 1988 to the respondent PCGG in
behalf of private respondent Roco originally requesting the
reinvestigation and/or re-examination of the evidence of the
PCGG against Roco in its Complaint in PCGG Case No. 33. 10
It is noteworthy that during said proceedings, private respondent
Roco did not refute petitioners' contention that he did actually
not reveal the identity of the client involved in PCGG Case No.
33, nor had he undertaken to reveal the identity of the client for
whom he acted as nominee-stockholder. 11
On March 18, 1992, respondent Sandiganbayan promulgated the
Resolution, herein questioned, denying the exclusion of
petitioners in PCGG Case No. 33, for their refusal to comply with
the conditions required by respondent PCGG. It held:

ACCRA lawyers exists cannot even begin to


be debated. The ACCRA lawyers cannot
excuse themselves from the consequences
of their acts until they have begun to
establish the basis for recognizing the
privilege; the existence andidentity of the
client.
This is what appears to be the cause for
which they have been impleaded by the
PCGG as defendants herein.
5. The PCGG is satisfied that defendant Roco
has demonstrated his agency and that Roco
has apparently identified his principal, which
revelation could show the lack of cause
against him. This in turn has allowed the
PCGG to exercise its power both under the
rules of Agency and under Section 5 of E.O.
No. 14-A in relation to the Supreme Court's
ruling in Republic v. Sandiganbayan (173
SCRA 72).
The PCGG has apparently offered to the
ACCRA lawyers the same conditions availed
of by Roco; full disclosure in exchange for
exclusion from these proceedings (par. 7,
PCGG's COMMENT dated November 4,
1991). The ACCRA lawyers have preferred
not to make the disclosures required by the
PCGG.
The ACCRA lawyers cannot, therefore,
begrudge the PCGG for keeping them as
party defendants. In the same vein, they
cannot compel the PCGG to be accorded the
same treatment accorded to Roco.
Neither can this Court.
WHEREFORE, the Counter Motion dated
October 8, 1991 filed by the ACCRA lawyers
and joined in by Atty. Paraja G. Hayudini for
the same treatment by the PCGG as
accorded to Raul S. Roco is DENIED for lack
of merit. 12

xxx xxx xxx


ACCRA lawyers may take the heroic stance
of not revealing the identity of the client for
whom they have acted, i.e. their principal,
and that will be their choice. But until they
do identify their clients, considerations of
whether or not the privilege claimed by the

I
The Honorable Sandiganbayan gravely
abused its discretion in subjecting
petitioners ACCRA lawyers who undisputably
acted as lawyers in serving as nomineestockholders, to the strict application of the
law of agency.
II
The Honorable Sandiganbayan committed
grave abuse of discretion in not considering
petitioners ACCRA lawyers and Mr. Roco as
similarly situated and, therefore, deserving
of equal treatment.
1. There is absolutely no
evidence that Mr. Roco
had revealed, or had
undertaken to reveal,
the identities of the
client(s) for whom he
acted as nomineestockholder.
2. Even assuming that
Mr. Roco had revealed,
or had undertaken to
reveal, the identities of
the client(s), the
disclosure does not
constitute a substantial
distinction as would
make the classification
reasonable under the
equal protection clause.
3. Respondent
Sandiganbayan
sanctioned favoritism
and undue preference in
favor of Mr. Roco in
violation of the equal
protection clause.
III

ACCRA lawyers moved for a reconsideration of the above


resolution but the same was denied by the respondent
Sandiganbayan. Hence, the ACCRA lawyers filed the petition
for certiorari, docketed as G.R. No. 105938, invoking the
following grounds:

The Honorable Sandiganbayan committed


grave abuse of discretion in not holding that,
under the facts of this case, the attorneyclient privilege prohibits petitioners ACCRA
lawyers from revealing the identity of their

client(s) and the other information


requested by the PCGG.
1. Under the peculiar
facts of this case, the
attorney-client privilege
includes the identity of
the client(s).
2. The factual
disclosures required by
the PCGG are not
limited to the identity of
petitioners ACCRA
lawyers' alleged
client(s) but extend to
other privileged
matters.

In his comment, respondent Roco asseverates that respondent


PCGG acted correctly in excluding him as party-defendant
because he "(Roco) has not filed an Answer. PCGG had therefore
the right to dismiss Civil Case No.0033 as to Roco 'without an
order of court by filing a notice of dismissal'," 14 and he has
undertaken to identify his principal. 15
Petitioners' contentions are impressed with merit.
I
It is quite apparent that petitioners were impleaded by the PCGG
as co-defendants to force them to disclose the identity of their
clients. Clearly, respondent PCGG is not after petitioners but the
"bigger fish" as they say in street parlance. This ploy is quite
clear from the PCGG's willingness to cut a deal with petitioners
the names of their clients in exchange for exclusion from the
complaint. The statement of the Sandiganbayan in its questioned
resolution dated March 18, 1992 is explicit:

IV
The Honorable Sandiganbayan committed
grave abuse of discretion in not requiring
that the dropping of party-defendants by the
PCGG must be based on reasonable and just
grounds and with due consideration to the
constitutional right of petitioners ACCRA
lawyers to the equal protection of the law.
Petitioner Paraja G. Hayudini, likewise, filed his own motion for
reconsideration of the March 18, 1991 resolution which was
denied by respondent Sandiganbayan. Thus, he filed a separate
petition for certiorari, docketed as G.R. No. 108113, assailing
respondent Sandiganbayan's resolution on essentially the same
grounds averred by petitioners in G.R. No. 105938.
Petitioners contend that the exclusion of respondent Roco as
party-defendant in PCGG Case No. 33 grants him a favorable
treatment, on the pretext of his alleged undertaking to divulge
the identity of his client, giving him an advantage over them who
are in the same footing as partners in the ACCRA law firm.
Petitioners further argue that even granting that such an
undertaking has been assumed by private respondent Roco, they
are prohibited from revealing the identity of their principal under
their sworn mandate and fiduciary duty as lawyers to uphold at
all times the confidentiality of information obtained during such
lawyer-client relationship.
Respondent PCGG, through its counsel, refutes petitioners'
contention, alleging that the revelation of the identity of the
client is not within the ambit of the lawyer-client confidentiality
privilege, nor are the documents it required (deeds of
assignment) protected, because they are evidence of nominee
status. 13

ACCRA lawyers may take the heroic stance


of not revealing the identity of the client for
whom they have acted, i.e, their principal,
and that will be their choice. But until they
do identify their clients, considerations of
whether or not the privilege claimed by the
ACCRA lawyers exists cannot even begin to
be debated. The ACCRA lawyers cannot
excuse themselves from the consequences
of their acts until they have begun to
establish the basis for recognizing the
privilege; the existence and identity of the
client.
This is what appears to be the cause for
which they have been impleaded by the
PCGG as defendants herein. (Emphasis ours)
In a closely related case, Civil Case No. 0110 of the
Sandiganbayan, Third Division, entitled "Primavera Farms, Inc.,
et al. vs. Presidential Commission on Good Government"
respondent PCGG, through counsel Mario Ongkiko, manifested at
the hearing on December 5, 1991 that the PCGG wanted to
establish through the ACCRA that their "so called client is Mr.
Eduardo Cojuangco;" that "it was Mr. Eduardo Cojuangco who
furnished all the monies to those subscription payments in
corporations included in Annex "A" of the Third Amended
Complaint; that the ACCRA lawyers executed deeds of trust and
deeds of assignment, some in the name of particular persons;
some in blank.
We quote Atty. Ongkiko:

ATTY. ONGKIKO:
With the permission of this Hon. Court. I
propose to establish through these ACCRA
lawyers that, one, their so-called client is Mr.
Eduardo Cojuangco. Second, it was Mr.
Eduardo Cojuangco who furnished all the
monies to these subscription payments of
these corporations who are now the
petitioners in this case. Third, that these
lawyers executed deeds of trust, some in the
name of a particular person, some in blank.
Now, these blank deeds are important to our
claim that some of the shares are actually
being held by the nominees for the late
President Marcos. Fourth, they also executed
deeds of assignment and some of these
assignments have also blank assignees.
Again, this is important to our claim that
some of the shares are for Mr. Conjuangco
and some are for Mr. Marcos. Fifth, that most
of thes e corporations are really just paper
corporations. Why do we say that? One:
There are no really fixed sets of officers, no
fixed sets of directors at the time of
incorporation and even up to 1986, which is
the crucial year. And not only that, they
have no permits from the municipal
authorities in Makati. Next, actually all their
addresses now are care of Villareal Law
Office. They really have no address on
records. These are some of the principal
things that we would ask of these nominees
stockholders, as they called themselves. 16
It would seem that petitioners are merely standing in for their
clients as defendants in the complaint. Petitioners are being
prosecuted solely on the basis of activities and services
performed in the course of their duties as lawyers. Quite
obviously, petitioners' inclusion as co-defendants in the
complaint is merely being used as leverage to compel them to
name their clients and consequently to enable the PCGG to nail
these clients. Such being the case, respondent PCGG has no
valid cause of action as against petitioners and should exclude
them from the Third Amended Complaint.
II
The nature of lawyer-client relationship is premised on the
Roman Law concepts of locatio conductio operarum(contract of
lease of services) where one person lets his services and another
hires them without reference to the object of which the services
are to be performed, wherein lawyers' services may be
compensated by honorariumor for hire, 17 and mandato (contract
of agency) wherein a friend on whom reliance could be placed

makes a contract in his name, but gives up all that he gained by


the contract to the person who requested him. 18 But the lawyerclient relationship is more than that of the principal-agent and
lessor-lessee.

Sec. 24. Disqualification by reason of


privileged communication. The following
persons cannot testify as to matters learned
in confidence in the following cases:

In modern day perception of the lawyer-client relationship, an


attorney is more than a mere agent or servant, because he
possesses special powers of trust and confidence reposed on him
by his client. 19 A lawyer is also as independent as the judge of
the court, thus his powers are entirely different from and
superior to those of an ordinary agent.20 Moreover, an attorney
also occupies what may be considered as a "quasi-judicial office"
since he is in fact an officer of the Court 21 and exercises his
judgment in the choice of courses of action to be taken favorable
to his client.

xxx xxx xxx

Thus, in the creation of lawyer-client relationship, there are rules,


ethical conduct and duties that breathe life into it, among those,
the fiduciary duty to his client which is of a very delicate,
exacting and confidential character, requiring a very high degree
of fidelity and good faith, 22 that is required by reason of
necessity and public interest 23based on the hypothesis that
abstinence from seeking legal advice in a good cause is an evil
which is fatal to the administration of justice. 24
It is also the strict sense of fidelity of a
lawyer to his client that distinguishes him
from any other professional in society. This
conception is entrenched and embodies
centuries of established and stable
tradition. 25 In Stockton v. Ford, 26 the U. S.
Supreme Court held:
There are few of the business relations of life
involving a higher trust and confidence than
that of attorney and client, or generally
speaking, one more honorably and faithfully
discharged; few more anxiously guarded by
the law, or governed by the sterner
principles of morality and justice; and it is
the duty of the court to administer them in a
corresponding spirit, and to be watchful and
industrious, to see that confidence thus
reposed shall not be used to the detriment
or prejudice of the rights of the party
bestowing it. 27
In our jurisdiction, this privilege takes off from the old Code of
Civil Procedure enacted by the Philippine Commission on August
7, 1901. Section 383 of the Code specifically "forbids counsel,
without authority of his client to reveal any communication made
by the client to him or his advice given thereon in the course of
professional employment." 28 Passed on into various provisions of
the Rules of Court, the attorney-client privilege, as currently
worded provides:

An attorney cannot, without the consent of


his client, be examined as to any
communication made by the client to him,
or his advice given thereon in the course of,
or with a view to, professional employment,
can an attorney's secretary, stenographer,
or clerk be examined, without the consent of
the client and his employer, concerning any
fact the knowledge of which has been
acquired in such capacity. 29
Further, Rule 138 of the Rules of Court states:
Sec. 20. It is the duty of an attorney: (e) to
maintain inviolate the confidence, and at
every peril to himself, to preserve the
secrets of his client, and to accept no
compensation in connection with his client's
business except from him or with his
knowledge and approval.
This duty is explicitly mandated in Canon 17 of the Code of
Professional Responsibility which provides that:
Canon 17. A lawyer owes fidelity to the
cause of his client and he shall be mindful of
the trust and confidence reposed in him.
Canon 15 of the Canons of Professional Ethics also demands a
lawyer's fidelity to client:
The lawyers owes "entire devotion to the
interest of the client, warm zeal in the
maintenance and defense of his rights and
the exertion of his utmost learning and
ability," to the end that nothing be taken or
be withheld from him, save by the rules of
law, legally applied. No fear of judicial
disfavor or public popularity should restrain
him from the full discharge of his duty. In the
judicial forum the client is entitled to the
benefit of any and every remedy and
defense that is authorized by the law of the
land, and he may expect his lawyer to assert
every such remedy or defense. But it is
steadfastly to be borne in mind that the

great trust of the lawyer is to be performed


within and not without the bounds of the
law. The office of attorney does not permit,
much less does it demand of him for any
client, violation of law or any manner of
fraud or chicanery. He must obey his own
conscience and not that of his client.
Considerations favoring confidentially in lawyer-client
relationships are many and serve several constitutional and
policy concerns. In the constitutional sphere, the privilege gives
flesh to one of the most sacrosanct rights available to the
accused, the right to counsel. If a client were made to choose
between legal representation without effective communication
and disclosure and legal representation with all his secrets
revealed then he might be compelled, in some instances, to
either opt to stay away from the judicial system or to lose the
right to counsel. If the price of disclosure is too high, or if it
amounts to self incrimination, then the flow of information would
be curtailed thereby rendering the right practically nugatory. The
threat this represents against another sacrosanct individual right,
the right to be presumed innocent is at once self-evident.
Encouraging full disclosure to a lawyer by one seeking legal
services opens the door to a whole spectrum of legal options
which would otherwise be circumscribed by limited information
engendered by a fear of disclosure. An effective lawyer-client
relationship is largely dependent upon the degree of confidence
which exists between lawyer and client which in turn requires a
situation which encourages a dynamic and fruitful exchange and
flow of information. It necessarily follows that in order to attain
effective representation, the lawyer must invoke the privilege not
as a matter of option but as a matter of duty and professional
responsibility.
The question now arises whether or not this duty may be
asserted in refusing to disclose the name of petitioners' client(s)
in the case at bar. Under the facts and circumstances obtaining
in the instant case, the answer must be in the affirmative.
As a matter of public policy, a client's identity should not be
shrouded in mystery 30 Under this premise, the general rule in
our jurisdiction as well as in the United States is that a lawyer
may not invoke the privilege and refuse to divulge the name or
identity of this client. 31
The reasons advanced for the general rule are well established.
First, the court has a right to know that the client whose
privileged information is sought to be protected is flesh and
blood.

Second, the privilege begins to exist only after the attorneyclient relationship has been established. The attorney-client
privilege does not attach until there is a client.
Third, the privilege generally pertains to the subject matter of
the relationship.
Finally, due process considerations require that the opposing
party should, as a general rule, know his adversary. "A party
suing or sued is entitled to know who his opponent is." 32 He
cannot be obliged to grope in the dark against unknown
forces. 33
Notwithstanding these considerations, the general rule is
however qualified by some important exceptions.
1) Client identity is privileged where a strong probability exists
that revealing the client's name would implicate that client in the
very activity for which he sought the lawyer's advice.
In Ex-Parte Enzor, 34 a state supreme court reversed a lower
court order requiring a lawyer to divulge the name of her client
on the ground that the subject matter of the relationship was so
closely related to the issue of the client's identity that the
privilege actually attached to both. In Enzor, the unidentified
client, an election official, informed his attorney in confidence
that he had been offered a bribe to violate election laws or that
he had accepted a bribe to that end. In her testimony, the
attorney revealed that she had advised her client to count the
votes correctly, but averred that she could not remember
whether her client had been, in fact, bribed. The lawyer was
cited for contempt for her refusal to reveal his client's identity
before a grand jury. Reversing the lower court's contempt orders,
the state supreme court held that under the circumstances of the
case, and under the exceptions described above, even the name
of the client was privileged.
U .S. v. Hodge and Zweig, 35 involved the same exception, i.e.
that client identity is privileged in those instances where a strong
probability exists that the disclosure of the client's identity would
implicate the client in the very criminal activity for which the
lawyer's legal advice was obtained.
The Hodge case involved federal grand jury proceedings
inquiring into the activities of the "Sandino Gang," a gang
involved in the illegal importation of drugs in the United States.
The respondents, law partners, represented key witnesses and
suspects including the leader of the gang, Joe Sandino.
In connection with a tax investigation in November of 1973, the
IRS issued summons to Hodge and Zweig, requiring them to
produce documents and information regarding payment received
by Sandino on behalf of any other person, and vice versa. The

lawyers refused to divulge the names. The Ninth Circuit of the


United States Court of Appeals, upholding non-disclosure under
the facts and circumstances of the case, held:
A client's identity and the nature of that
client's fee arrangements may be privileged
where the person invoking the privilege can
show that a strong probability exists that
disclosure of such information would
implicate that client in the very criminal
activity for which legal advice was
sought Baird v.Koerner, 279 F. 2d at 680.
While in Baird Owe enunciated this rule as a
matter of California law, the rule also
reflects federal law. Appellants contend that
the Baird exception applies to this case.
The Baird exception is entirely consonant
with the principal policy behind the attorneyclient privilege. "In order to promote
freedom of consultation of legal advisors by
clients, the apprehension of compelled
disclosure from the legal advisors must be
removed; hence, the law must prohibit such
disclosure except on the client's consent." 8
J. Wigmore, supra sec. 2291, at 545. In
furtherance of this policy, the client's
identity and the nature of his fee
arrangements are, in exceptional cases,
protected as confidential communications. 36
2) Where disclosure would open the client to civil liability; his
identity is privileged. For instance, the peculiar facts and
circumstances of Neugass v. Terminal Cab
Corporation, 37 prompted the New York Supreme Court to allow a
lawyer's claim to the effect that he could not reveal the name of
his client because this would expose the latter to civil litigation.
In the said case, Neugass, the plaintiff, suffered injury when the
taxicab she was riding, owned by respondent corporation,
collided with a second taxicab, whose owner was unknown.
Plaintiff brought action both against defendant corporation and
the owner of the second cab, identified in the information only as
John Doe. It turned out that when the attorney of defendant
corporation appeared on preliminary examination, the fact was
somehow revealed that the lawyer came to know the name of
the owner of the second cab when a man, a client of the
insurance company, prior to the institution of legal action, came
to him and reported that he was involved in a car accident. It
was apparent under the circumstances that the man was the
owner of the second cab. The state supreme court held that the
reports were clearly made to the lawyer in his professional
capacity. The court said:

That his employment came about through


the fact that the insurance company had
hired him to defend its policyholders seems
immaterial. The attorney is such cases is
clearly the attorney for the policyholder
when the policyholder goes to him to report
an occurrence contemplating that it would
be used in an action or claim against him. 38
xxx xxx xxx
All communications made by a client to his
counsel, for the purpose of professional
advice or assistance, are privileged, whether
they relate to a suit pending or
contemplated, or to any other matter proper
for such advice or aid; . . . And whenever the
communication made, relates to a matter so
connected with the employment as attorney
or counsel as to afford presumption that it
was the ground of the address by the client,
then it is privileged from disclosure. . .
It appears . . . that the name and address of
the owner of the second cab came to the
attorney in this case as a confidential
communication. His client is not seeking to
use the courts, and his address cannot be
disclosed on that theory, nor is the present
action pending against him as service of the
summons on him has not been effected. The
objections on which the court reserved
decision are sustained. 39
In the case of Matter of Shawmut Mining Company, 40 the lawyer
involved was required by a lower court to disclose whether he
represented certain clients in a certain transaction. The purpose
of the court's request was to determine whether the unnamed
persons as interested parties were connected with the purchase
of properties involved in the action. The lawyer refused and
brought the question to the State Supreme Court. Upholding the
lawyer's refusal to divulge the names of his clients the court
held:
If it can compel the witness to state, as
directed by the order appealed from, that he
represented certain persons in the purchase
or sale of these mines, it has made progress
in establishing by such evidence their
version of the litigation. As already
suggested, such testimony by the witness
would compel him to disclose not only that
he was attorney for certain people, but that,
as the result of communications made to
him in the course of such employment as

such attorney, he knew that they were


interested in certain transactions. We feel
sure that under such conditions no case has
ever gone to the length of compelling an
attorney, at the instance of a hostile litigant,
to disclose not only his retainer, but the
nature of the transactions to which it
related, when such information could be
made the basis of a suit against his client. 41
3) Where the government's lawyers have no case against an
attorney's client unless, by revealing the client's name, the said
name would furnish the only link that would form the chain of
testimony necessary to convict an individual of a crime, the
client's name is privileged.
In Baird vs. Korner, 42 a lawyer was consulted by the accountants
and the lawyer of certain undisclosed taxpayers regarding steps
to be taken to place the undisclosed taxpayers in a favorable
position in case criminal charges were brought against them by
the U.S. Internal Revenue Service (IRS).
It appeared that the taxpayers' returns of previous years were
probably incorrect and the taxes understated. The clients
themselves were unsure about whether or not they violated tax
laws and sought advice from Baird on the hypothetical possibility
that they had. No investigation was then being undertaken by
the IRS of the taxpayers. Subsequently, the attorney of the
taxpayers delivered to Baird the sum of $12, 706.85, which had
been previously assessed as the tax due, and another amount of
money representing his fee for the advice given. Baird then sent
a check for $12,706.85 to the IRS in Baltimore, Maryland, with a
note explaining the payment, but without naming his clients. The
IRS demanded that Baird identify the lawyers, accountants, and
other clients involved. Baird refused on the ground that he did
not know their names, and declined to name the attorney and
accountants because this constituted privileged communication.
A petition was filed for the enforcement of the IRS summons. For
Baird's repeated refusal to name his clients he was found guilty
of civil contempt. The Ninth Circuit Court of Appeals held that, a
lawyer could not be forced to reveal the names of clients who
employed him to pay sums of money to the government
voluntarily in settlement of undetermined income taxes, unsued
on, and with no government audit or investigation into that
client's income tax liability pending. The court emphasized the
exception that a client's name is privileged when so much has
been revealed concerning the legal services rendered that the
disclosure of the client's identity exposes him to possible
investigation and sanction by government agencies. The Court
held:
The facts of the instant case bring it
squarely within that exception to the general
rule. Here money was received by the
government, paid by persons who thereby

admitted they had not paid a sufficient


amount in income taxes some one or more
years in the past. The names of the clients
are useful to the government for but one
purpose to ascertain which taxpayers
think they were delinquent, so that it may
check the records for that one year or
several years. The voluntary nature of the
payment indicates a belief by the taxpayers
that more taxes or interest or penalties are
due than the sum previously paid, if any. It
indicates a feeling of guilt for nonpayment of
taxes, though whether it is criminal guilt is
undisclosed. But it may well be the link that
could form the chain of testimony necessary
to convict an individual of a federal crime.
Certainly the payment and the feeling of
guilt are the reasons the attorney here
involved was employed to advise his
clients what, under the circumstances,
should be done. 43
Apart from these principal exceptions, there exist other
situations which could qualify as exceptions to the general rule.
For example, the content of any client communication to a
lawyer lies within the privilege if it is relevant to the subject
matter of the legal problem on which the client seeks legal
assistance. 44 Moreover, where the nature of the attorney-client
relationship has been previously disclosed and it is the identity
which is intended to be confidential, the identity of the client has
been held to be privileged, since such revelation would otherwise
result in disclosure of the entire transaction. 45
Summarizing these exceptions, information relating to the
identity of a client may fall within the ambit of the privilege when
the client's name itself has an independent significance, such
that disclosure would then reveal client confidences. 46
The circumstances involving the engagement of lawyers in the
case at bench, therefore, clearly reveal that the instant case falls
under at least two exceptions to the general rule. First, disclosure
of the alleged client's name would lead to establish said client's
connection with the very fact in issue of the case, which is
privileged information, because the privilege, as stated earlier,
protects the subject matter or the substance (without which
there would be not attorney-client relationship).
The link between the alleged criminal offense and the legal
advice or legal service sought was duly establishes in the case at
bar, by no less than the PCGG itself. The key lies in the three
specific conditions laid down by the PCGG which constitutes
petitioners' ticket to non-prosecution should they accede thereto:

(a) the disclosure of the identity of its


clients;
(b) submission of documents substantiating
the lawyer-client relationship; and
(c) the submission of the deeds of
assignment petitioners executed in favor of
their clients covering their respective
shareholdings.
From these conditions, particularly the third, we can readily
deduce that the clients indeed consulted the petitioners, in their
capacity as lawyers, regarding the financial and corporate
structure, framework and set-up of the corporations in question.
In turn, petitioners gave their professional advice in the form of,
among others, the aforementioned deeds of assignment
covering their client's shareholdings.
There is no question that the preparation of the aforestated
documents was part and parcel of petitioners' legal service to
their clients. More important, it constituted an integral part of
their duties as lawyers. Petitioners, therefore, have a legitimate
fear that identifying their clients would implicate them in the
very activity for which legal advice had been sought, i.e., the
alleged accumulation of ill-gotten wealth in the aforementioned
corporations.
Furthermore, under the third main exception, revelation of the
client's name would obviously provide the necessary link for the
prosecution to build its case, where none otherwise exists. It is
the link, in the words of Baird, "that would inevitably form the
chain of testimony necessary to convict the (client) of a . . .
crime." 47
An important distinction must be made between a case where a
client takes on the services of an attorney for illicit purposes,
seeking advice about how to go around the law for the purpose
of committing illegal activities and a case where a client thinks
he might have previously committed something illegal and
consults his attorney about it. The first case clearly does not fall
within the privilege because the same cannot be invoked for
purposes illegal. The second case falls within the exception
because whether or not the act for which the client sought
advice turns out to be illegal, his name cannot be used or
disclosed if the disclosure leads to evidence, not yet in the hands
of the prosecution, which might lead to possible action against
him.
These cases may be readily distinguished, because the privilege
cannot be invoked or used as a shield for an illegal act, as in the
first example; while the prosecution may not have a case against
the client in the second example and cannot use the attorney
client relationship to build up a case against the latter. The

reason for the first rule is that it is not within the professional
character of a lawyer to give advice on the commission of a
crime.48 The reason for the second has been stated in the cases
above discussed and are founded on the same policy grounds for
which the attorney-client privilege, in general, exists.
In Matter of Shawmut Mining Co., supra, the appellate court
therein stated that "under such conditions no case has ever yet
gone to the length of compelling an attorney, at the instance of a
hostile litigant, to disclose not only his retainer, but the nature of
the transactions to which it related, when such information could
be made the basis of a suit against his
client." 49 "Communications made to an attorney in the course of
any personal employment, relating to the subject thereof, and
which may be supposed to be drawn out in consequence of the
relation in which the parties stand to each other, are under the
seal of confidence and entitled to protection as privileged
communications." 50 Where the communicated information,
which clearly falls within the privilege, would suggest possible
criminal activity but there would be not much in the information
known to the prosecution which would sustain a charge except
that revealing the name of the client would open up other
privileged information which would substantiate the
prosecution's suspicions, then the client's identity is so
inextricably linked to the subject matter itself that it falls within
the protection. The Baird exception, applicable to the instant
case, is consonant with the principal policy behind the
privilege, i.e., that for the purpose of promoting freedom of
consultation of legal advisors by clients, apprehension of
compelled disclosure from attorneys must be eliminated. This
exception has likewise been sustained in In re Grand Jury
Proceedings 51 and Tillotson v. Boughner. 52 What these cases
unanimously seek to avoid is the exploitation of the general rule
in what may amount to a fishing expedition by the prosecution.
There are, after all, alternative source of information available to
the prosecutor which do not depend on utilizing a defendant's
counsel as a convenient and readily available source of
information in the building of a case against the latter.
Compelling disclosure of the client's name in circumstances such
as the one which exists in the case at bench amounts to
sanctioning fishing expeditions by lazy prosecutors and litigants
which we cannot and will not countenance. When the nature of
the transaction would be revealed by disclosure of an attorney's
retainer, such retainer is obviously protected by the
privilege. 53 It follows that petitioner attorneys in the instant case
owe their client(s) a duty and an obligation not to disclose the
latter's identity which in turn requires them to invoke the
privilege.
In fine, the crux of petitioners' objections ultimately hinges on
their expectation that if the prosecution has a case against their
clients, the latter's case should be built upon evidence
painstakingly gathered by them from their own sources and not
from compelled testimony requiring them to reveal the name of
their clients, information which unavoidably reveals much about

the nature of the transaction which may or may not be illegal.


The logical nexus between name and nature of transaction is so
intimate in this case the it would be difficult to simply dissociate
one from the other. In this sense, the name is as much
"communication" as information revealed directly about the
transaction in question itself, a communication which is clearly
and distinctly privileged. A lawyer cannot reveal such
communication without exposing himself to charges of violating
a principle which forms the bulwark of the entire attorney-client
relationship.
The uberrimei fidei relationship between a lawyer and his client
therefore imposes a strict liability for negligence on the former.
The ethical duties owing to the client, including confidentiality,
loyalty, competence, diligence as well as the responsibility to
keep clients informed and protect their rights to make decisions
have been zealously sustained. In Milbank, Tweed, Hadley and
McCloy v. Boon, 54 the US Second District Court rejected the plea
of the petitioner law firm that it breached its fiduciary duty to its
client by helping the latter's former agent in closing a deal for
the agent's benefit only after its client hesitated in proceeding
with the transaction, thus causing no harm to its client. The
Court instead ruled that breaches of a fiduciary relationship in
any context comprise a special breed of cases that often loosen
normally stringent requirements of causation and damages, and
found in favor of the client.
To the same effect is the ruling in Searcy, Denney, Scarola,
Barnhart, and Shipley P.A. v. Scheller 55 requiring strict obligation
of lawyers vis-a-vis clients. In this case, a contingent fee lawyer
was fired shortly before the end of completion of his work, and
sought payment quantum meruit of work done. The court,
however, found that the lawyer was fired for cause after he
sought to pressure his client into signing a new fee agreement
while settlement negotiations were at a critical stage. While the
client found a new lawyer during the interregnum, events forced
the client to settle for less than what was originally offered.
Reiterating the principle of fiduciary duty of lawyers to clients
in Meinhard v. Salmon 56 famously attributed to Justice Benjamin
Cardozo that "Not honesty alone, but the punctilio of an honor
the most sensitive, is then the standard of behavior," the US
Court found that the lawyer involved was fired for cause, thus
deserved no attorney's fees at all.
The utmost zeal given by Courts to the protection of the lawyerclient confidentiality privilege and lawyer's loyalty to his client is
evident in the duration of the protection, which exists not only
during the relationship, but extends even after the termination of
the relationship. 57
Such are the unrelenting duties required by lawyers vis-avis their clients because the law, which the lawyers are sworn to
uphold, in the words of Oliver Wendell Holmes, 58 ". . . is an
exacting goddess, demanding of her votaries in intellectual and
moral discipline." The Court, no less, is not prepared to accept

respondents' position without denigrating the noble profession


that is lawyering, so extolled by Justice Holmes in this wise:
Every calling is great when greatly pursued.
But what other gives such scope to realize
the spontaneous energy of one's soul? In
what other does one plunge so deep in the
stream of life so share its passions its
battles, its despair, its triumphs, both as
witness and actor? . . . But that is not all.
What a subject is this in which we are united
this abstraction called the Law, wherein
as in a magic mirror, we see reflected, not
only in our lives, but the lives of all men that
have been. When I think on this majestic
theme my eyes dazzle. If we are to speak of
the law as our mistress, we who are here
know that she is a mistress only to be won
with sustained and lonely passion only to
be won by straining all the faculties by
which man is likened to God.
We have no choice but to uphold petitioners' right not to reveal
the identity of their clients under pain of the breach of fiduciary
duty owing to their clients, because the facts of the instant case
clearly fall within recognized exceptions to the rule that the
client's name is not privileged information.
If we were to sustain respondent PCGG that the lawyer-client
confidential privilege under the circumstances obtaining here
does not cover the identity of the client, then it would expose the
lawyers themselves to possible litigation by their clients in view
of the strict fiduciary responsibility imposed on them in the
exercise of their duties.
The complaint in Civil Case No. 0033 alleged that the
defendants therein, including herein petitioners and
Eduardo Cojuangco, Jr. conspired with each other in
setting up through the use of coconut levy funds the
financial and corporate framework and structures that
led to the establishment of UCPB, UNICOM and others
and that through insidious means and machinations,
ACCRA, using its wholly-owned investment arm, ACCRA
Investment Corporation, became the holder of
approximately fifteen million shares representing
roughly 3.3% of the total capital stock of UCPB as of 31
March 1987. The PCGG wanted to establish through
the ACCRA lawyers that Mr. Cojuangco is their client
and it was Cojuangco who furnished all the monies to
the subscription payment; hence, petitioners acted as
dummies, nominees and/or agents by allowing
themselves, among others, to be used as instrument
in accumulating ill-gotten wealth through government
concessions, etc., which acts constitute gross abuse of
official position and authority, flagrant breach of public

trust, unjust enrichment, violation of the Constitution


and laws of the Republic of the Philippines.
By compelling petitioners, not only to reveal the
identity of their clients, but worse, to submit to the
PCGG documents substantiating the client-lawyer
relationship, as well as deeds of assignment
petitioners executed in favor of its clients covering
their respective shareholdings, the PCGG would exact
from petitioners a link "that would inevitably form the
chain of testimony necessary to convict the (client) of
a crime."
III
In response to petitioners' last assignment of error,
respondents alleged that the private respondent was
dropped as party defendant not only because of his
admission that he acted merely as a nominee but also
because of his undertaking to testify to such facts and
circumstances "as the interest of truth may require,
which includes . . . the identity of the principal." 59
First, as to the bare statement that private respondent
merely acted as a lawyer and nominee, a statement
made in his out-of-court settlement with the PCGG, it is
sufficient to state that petitioners have likewise made
the same claim not merely out-of-court but also in the
Answer to plaintiff's Expanded Amended Complaint,
signed by counsel, claiming that their acts were made
in furtherance of "legitimate lawyering." 60 Being
"similarly situated" in this regard, public respondents
must show that there exist other conditions and
circumstances which would warrant their treating the
private respondent differently from petitioners in the
case at bench in order to evade a violation of the
equal protection clause of the Constitution.
To this end, public respondents contend that the
primary consideration behind their decision to sustain
the PCGG's dropping of private respondent as a
defendant was his promise to disclose the identities of
the clients in question. However, respondents failed to
show and absolute nothing exists in the records of
the case at bar that private respondent actually
revealed the identity of his client(s) to the PCGG. Since
the undertaking happens to be the leitmotif of the
entire arrangement between Mr. Roco and the PCGG,
an undertaking which is so material as to have justified
PCGG's special treatment exempting the private
respondent from prosecution, respondent
Sandiganbayan should have required proof of the
undertaking more substantial than a "bare assertion"
that private respondent did indeed comply with the
undertaking. Instead, as manifested by the PCGG, only

three documents were submitted for the purpose, two


of which were mere requests for re-investigation and
one simply disclosed certain clients which petitioners
(ACCRA lawyers) were themselves willing to reveal.
These were clients to whom both petitioners and
private respondent rendered legal services while all of
them were partners at ACCRA, and were not the clients
which the PCGG wanted disclosed for the alleged
questioned transactions. 61
To justify the dropping of the private respondent from
the case or the filing of the suit in the respondent
court without him, therefore, the PCGG should
conclusively show that Mr. Roco was treated as species
apart from the rest of the ACCRA lawyers on the basis
of a classification which made substantial distinctions
based on real differences. No such substantial
distinctions exist from the records of the case at
bench, in violation of the equal protection clause.
The equal protection clause is a guarantee which
provides a wall of protection against uneven
application of status and regulations. In the broader
sense, the guarantee operates against
uneven application of legal norms so
that all persons under similar circumstances would be
accorded the same treatment. 62 Those who fall within
a particular class ought to be treated alike not only as
to privileges granted but also as to the liabilities
imposed.
. . . What is required under this
constitutional guarantee is the uniform
operation of legal norms so that all persons
under similar circumstances would be
accorded the same treatment both in the
privileges conferred and the liabilities
imposed. As was noted in a recent decision:
"Favoritism and undue preference cannot be
allowed. For the principle is that equal
protection and security shall be given to
every person under circumstances, which if
not identical are analogous. If law be looked
upon in terms of burden or charges, those
that fall within a class should be treated in
the same fashion, whatever restrictions cast
on some in the group equally binding the
rest. 63
We find that the condition precedent required by the
respondent PCGG of the petitioners for their exclusion
as parties-defendants in PCGG Case No. 33 violates
the lawyer-client confidentiality privilege. The
condition also constitutes a transgression by
respondents Sandiganbayan and PCGG of the equal

protection clause of the Constitution. 64 It is grossly


unfair to exempt one similarly situated litigant from
prosecution without allowing the same exemption to
the others. Moreover, the PCGG's demand not only
touches upon the question of the identity of their
clients but also on documents related to the suspected
transactions, not only in violation of the attorney-client
privilege but also of the constitutional right against
self-incrimination. Whichever way one looks at it, this
is a fishing expedition, a free ride at the expense of
such rights.
An argument is advanced that the invocation by
petitioners of the privilege of attorney-client
confidentiality at this stage of the proceedings is
premature and that they should wait until they are
called to testify and examine as witnesses as to
matters learned in confidence before they can raise
their objections. But petitioners are not mere
witnesses. They are co-principals in the case for
recovery of alleged ill-gotten wealth. They have made
their position clear from the very beginning that they
are not willing to testify and they cannot be compelled
to testify in view of their constitutional right against
self-incrimination and of their fundamental legal right
to maintain inviolate the privilege of attorney-client
confidentiality.
It is clear then that the case against petitioners should
never be allowed to take its full course in the
Sandiganbayan. Petitioners should not be made to
suffer the effects of further litigation when it is obvious
that their inclusion in the complaint arose from a
privileged attorney-client relationship and as a means
of coercing them to disclose the identities of their
clients. To allow the case to continue with respect to
them when this Court could nip the problem in the bud
at this early opportunity would be to sanction an
unjust situation which we should not here
countenance. The case hangs as a real and palpable
threat, a proverbial Sword of Damocles over
petitioners' heads. It should not be allowed to continue
a day longer.
While we are aware of respondent PCGG's legal
mandate to recover ill-gotten wealth, we will not
sanction acts which violate the equal protection
guarantee and the right against self-incrimination and
subvert the lawyer-client confidentiality privilege.
WHEREFORE, IN VIEW OF THE FOREGOING, the
Resolutions of respondent Sandiganbayan (First
Division) promulgated on March 18, 1992 and May 21,
1992 are hereby ANNULLED and SET ASIDE.
Respondent Sandiganbayan is further ordered to

exclude petitioners Teodoro D. Regala, Edgardo J.


Angara, Avelino V. Cruz, Jose C. Concepcion, Victor P.
Lazatin, Eduardo U. Escueta and Paraja G. Hayuduni as
parties-defendants in SB Civil Case No. 0033 entitled
"Republic of the Philippines v. Eduardo Cojuangco, Jr.,
et al."
SO ORDERED.

G.R. No. 117740 October 30, 1998


CAROLINA ABAD GONZALES, petitioner,
vs.
COURT OF APPEALS, HONORIA EMPAYNADO, CECILIA H.
ABAD, MARIAN H. ABAD and ROSEMARIE S.
ABAD, respondents.

Honoria Empaynado had been the common-law wife of Ricardo


Abad for twenty-seven years before his death, or from 1943 to
1971, and that during this period, their union had produced two
children, Cecilia Abad Empaynado and Marian Abad Empaynado.
Private respondents also disclosed the existence of Rosemarie
Abad, a child allegedly fathered by Ricardo Abad with another
woman, Dolores Saracho. As the law awards the entire estate to
the surviving children to the exclusion of collateral relatives,
private respondents charged petitioners with deliberately
concealing the existence of said three children in other to
deprive the latter of their rights to the estate of Ricardo Abad.

ROMERO, J.:
Before us is a petition for certiorari to annul the decision of the
Court of Appeals dated October 19, 1994, finding private
respondents as the heirs of Ricardo de Mesa Abad as well as
annulling petitioners' extra-judicial partition of the decedent's
estate.
The facts are as follows:
On April 18, 1972, petitioners Carolina Abad Gonzales, Dolores
de Mesa Abad and Cesar de Mesa Tioseco sought the settlement
of the intestate estate of their brother, Ricardo de Mesa Abad,
before the then Court of First Instance of Manila. In their petition,
docketed as Special Proceedings No. 86792, petitioners claimed
that they were the only heirs of Ricardo de Mesa Abad, as the
latter allegedly died a bachelor, leaving no descendants or
ascendants, whether legitimate or illegitimate. On May 9, 1972,
petitioners amended their petition by alleging that the real
properties covered by TCT Nos. 13530, 53671, and 64021, listed
therein as belonging to the decedent, were actually only
administered by the latter, the true owner being their late
mother, Lucila de Mesa. On June 16, 1972, the trial court
appointed Cesar de Mesa Tioseco as administrator of the
intestate estate of Ricardo de Mesa Abad.
Meanwhile, on May 2, 1972, petitioners executed an extrajudicial
settlement of the estate of their late mother Lucila de Mesa,
copying therein the technical descriptions of the lots covered by
TCT Nos. 13530, 53671, and 64021. By virtue thereof, the
Register of Deeds cancelled the above-mentioned TCTs in the
name of Ricardo Abad and issued, in lieu thereof, TCT No.
108482 in the name of Dolores de Mesa Abad, TCT No. 108483 in
the name of Cesar de Mesa Tioseco and TCT No. 108484 in the
name of Carolina Abad Gonzales. The three promptly executed
real estate mortgages over the real properties in favor of Mrs.
Josefina Viola, the wife of their counsel, Escolastico Viola.
On July 7, 1972, private respondents Honoria Empaynado, Cecilia
Abad Empaynado, and Marian Abad Empaynado filed a motion to
set aside proceedings and for leave to file opposition in Special
Proceedings No. 86792. In their motion, they alleged that

On July 24, 1972, private respondents filed a motion to withdraw


their first motion and, in lieu thereof, filed a motion for
reconsideration praying that Cecilia Abad be appointed
administrator instead of Cesar Tioseco. The trial court denied
private respondents' motion to remove Cesar Tioseco as
administrator, but allowed them to appear in the proceedings to
establish their right as alleged heirs of Ricardo Abad.
Private respondents later discovered that petitioners had
managed to cancel TCT Nos. 13530, 53671, and 64021 through
the stratagem of extra-judicially partitioning their mother's
estate. Accordingly, on October 4, 1973, private respondents
filed a motion to annul the extra-judicial partition executed by
petitioners, as well as TCT Nos. 108482, 108483, and 108484,
the Torrens titles issued in substitution of TCT Nos. 13530,
53671, and 64021 and the real estate mortgages constituted by
the latter on said properties.
After due trial, the lower court, on November 2, 1973, rendered
the following judgment:
WHEREFORE, judgment is hereby rendered
as follows:
(1) Declaring Cecilia E.
Abad, Marian E. Abad
and Rosemarie S. Abad
acknowledged natural
children of the
deceased Ricardo M.
Abad;
(2) Declaring said
acknowledged natural
children, namely: Cecilia
E. Abad, Marian E.
Abad, and Rosemarie S.
Abad the only surviving
legal heirs of the
deceased Ricardo M.
Abad and as such

entitled to succeed to
the entire estate of said
deceased, subject to the
rights of Honoria
Empaynado, if any, as
co-owner of any of the
property of said estate
that may have been
acquired thru her joint
efforts with the
deceased during the
period they lived
together as husband
and wife;
(3) Denying the petition
of decedent's collateral
relatives, namely:
Dolores M. Abad, Cesar
M. Tioseco and Carolina
M. Abad to be declared
as heirs and excluding
them from participating
in the administration
and settlement of the
estate of Ricardo Abad;
(4) Appointing Honoria
Empaynado as the
administratrix in this
intestacy with a bond of
THIRTY THOUSAND
(P30,000.00) PESOS;
and
(5) Ordering Cesar
Tioseco to surrender to
the new administratrix
all property or
properties, monies and
such papers that came
into his possession by
virtue of his
appointment as
administrator, which
appointment is hereby
revoked. 1
The trial court, likewise, found in favor of private respondents
with respect to the latter's motion for annulment of certain
documents. On November 19, 1974, it rendered the following
judgment:

WHEREFORE, this Court finds oppositors'


Motion for Annulment, dated October 4,
1973 to be meritorious and accordingly

Abad; TCT No. 108483


of Cesar de Mesa
Tioseco; and TCT No.
108484 of Carolina de
Mesa Abad-Gonzales
and in lieu thereof,
restore and/or issue the
corresponding
certificate of title in the
name of Ricardo Abad;

1. Declares that the six


(6) parcels of land
described in TCT Nos.
13530, 53671 and
64021, all registered in
the name of Ricardo
Abad, as replaced by
TCT No. 108482 in the
name of Dolores de
Mesa Abad, TCT No.
108483 in the name of
Cesar de Mesa Tioseco
and TCT No. 108484 in
the name of Carolina de
Mesa Abad-Gonzales,
and the residential
house situated at 2432
Opalo Street, San
Andres Subdivision,
Manila, to be the
properties of the late
Ricardo Abad;

5. Declares as inexistent
and void from the
beginning the three (3)
real estate mortgages
executed on July 7,
1972 executed by (a)
petitioner Dolores de
Mesa Abad, identified as
Doc. No. 145, Page No.
30, Book No. XX, Series
of 1972, (b) petitioner
Cesar de Mesa Tioseco,
identified as Doc. No.
146, Page 31, Book No.
XX, Series of 1972; and
(c) Carolina de Mesa
Abad-Gonzales,
identified as Doe. No.
144, Page No. 30, Book
No. XX, Series of 1972,
all of the notarial book
of Ricardo P. Yap of
Manila, in favor of Mrs.
Josefina C. Viola, and
orders the Register of
Deeds of Manila to
cancel the registration
or annotation thereof
from the back of the
torrens title of Ricardo
Abad; and

2. Declares the deed of


Extra Judicial
Settlement of the Estate
of the Deceased Lucila
de Mesa, executed on
May 2, 1972 (Doc. No.
445, Page No. 86, Book
No. VII, Series of 1972
of the notarial book of
Faustino S. Cruz) by
petitioners and Carolina
de Mesa AbadGonzales, to be
inexistent and void from
the beginning;

6. Orders Atty.
Escolastico R. Viola and
his law associate and
wife, Josefina C. Viola,
to surrender to the new
administratrix, Honoria
Empaynado, TCT Nos.
108482, 108483, and
108484 within five (5)
days from receipt
hereof.

3. Declares as null and


void the cancellation of
TCT Nos. 13530, 53671
and 64021 and issuance
in lieu thereof, of TCT
Nos. 108482, 108483
and 108484;
4. Orders the Register of
Deeds of Manila to
cancel TCT No. 108482
of Dolores de Mesa

SO ORDERED.

Petitioners' motion for reconsideration of the November 2, 1973


decision was denied by the trial court. Their notice of appeal was
likewise denied on the ground that the same had been filed out
of time. Because of this ruling, petitioners,
instituted certiorari and mandamus proceedings with the Court
of Appeals, docketed there as C.A.-G.R. No. SP-03268-R. On
November 2, 1974, the appellate court granted petitioners'
petition and ordered the lower court to give due course to the
latter's appeal. The trial court, however, again dismissed
petitioners' appeal on the ground that their record on appeal was
filed out of time.
Likewise, on January 4, 1975, petitioners filed their notice of
appeal of the November 19, 1974 ruling of the trial court. On
March 21, 1975, this appeal was similarly denied on the ground
that it had been filed out of time.
Due to the dismissal of their two appeals, petitioners again
instituted certiorari and mandamus proceedings with the Court
of Appeals, docketed therein as C.A.-G.R. No. SP-04352. The
appellate court affirmed the dismissal of the two appeals,
prompting petitioners to appeal to the Supreme Court. On July 9,
1985, this Court directed the trial court to give due course to
petitioners' appeal from the order of November 2, 1973 declaring
private respondents heirs of the deceased Ricardo Abad, and the
order dated November 19, 1974, annulling certain documents
pertaining to the intestate estate of deceased.
The two appeals were accordingly elevated by the trial court to
the appellate court. On October 19, 1994, the Court of Appeals
rendered judgment as follows:
WHEREFORE, all the foregoing considered,
the instant appeal is DENIED for lack of
merit. The orders of the court a quo in SP
No. 86792, to wit:
1. Order dated
November 2, 1973,
declaring in substance
that Cecilia, Marian and
Rosemarie, all
surnamed Abad as the
acknowledged natural
children and the only
surviving heirs of the
deceased Ricardo Abad;
2. Order dated
November 19, 1974,
declaring in substance
that the six (6) parcels
of land described in TCT
Nos. 13530, 53671 and

64021 are the


properties of Ricardo
Abad; that the extrajudicial partition of the
estate of the deceased
Lucila de Mesa executed
on May 2, 1972 is
inexistent and void from
the beginning, the
cancellation of the
aforementioned TCTs is
null and void; the
Register of Deeds be
ordered to restore
and/or issue the
corresponding
Certificates of Title in
the name of Ricardo
Abad; and
3. Order dated March
21, 1975 denying the
appeal of Dolores de
Mesa Abad and Cesar
de Mesa Tioseco from
the latter Order, for
being filed out of time,
are all AFFIRMED in
toto. With costs against
petitioner-appellants.
SO ORDERED.

Petitioners now seek to annul the foregoing judgment on the


following grounds:
I. THE COURT OF
APPEALS AND THE
TRIAL COURT GRAVELY
ERRED IN HOLDING
THAT RESPONDENTS
CECILIA E. ABAD,
MARIAN E. ABAD AND
ROSEMARIE S. ABAD
ARE THE
ACKNOWLEDGED
NATURAL CHILDREN OF
THE DECEASED
RICARDO DE MESA
ABAD.
II. PETITIONERS ARE
ENTITLED TO THE
SUBJECT ESTATE
WHETHER THE SAME IS

OWNED BY THE
DECEASED RICARDO DE
MESA ABAD OR BY
LUCILA DE MESA, THE
MOTHER OF
PETITIONERS AND
RICARDO DE MESA
ABAD.
We are not persuaded.
Petitioners, in contesting Cecilia, Marian and Rosemarie Abad's
filiation, submit the startling theory that the husband of Honoria
Empaynado, Jose Libunao, was still alive when Cecilia and Marian
Abad were born in 1948 and 1954, respectively.
It is undisputed that prior to her relationship with Ricardo Abad,
Honoria Empaynado was married to Jose Libunao, their union
having produced three children, Angelita, Cesar, and Maria Nina,
prior to the birth of Cecilia and Marian. But while private
respondents claim that Jose Libunao died in 1943, petitioners
claim that the latter died sometime in 1971.
The date of Jose Libunao's death is important, for if he was still
alive in 1971, and given that he was legally married to Honoria
Empaynado, the presumption would be that Cecilia and Marian
are not Ricardo Abad's children with the latter, but of Jose
Libunao and Honoria Empaynado. Article 256, the applicable
provision of the Civil Code, provides:
Art. 256. The child shall be presumed
legitimate, although the mother may have
declared against its legitimacy or may have
been sentenced as an adulteress. 4
To bolster their theory, petitioners presented in evidence the
application for enrolment at Mapua Institute of Technology of
Angelita Libunao, accomplished in 1956, which states:
Father's Name: Jose
Libunao
Occupation: engineer
(mining)
Mother's Name: Honoria
Empaynado 5
as well as Cesar Libunao's 1958 application for
enrolment at the Mapua Institute of Technology, which
states:

Father's Name: Jose


Libunao
Occupation: none
Mother's Name: Honoria
Empaynado 6
Petitioners claim that had Jose Libunao been dead during the
time when said applications were accomplished, the enrolment
forms of his children would have stated so. These not being the
case, they conclude that Jose Libunao must have still been alive
in 1956 and 1958.
Additionally, petitioners presented the joint affidavit of Juan
Quiambao and Alejandro Ramos 7 stating that to their knowledge
Jose Libunao had died in 1971, leaving as his widow, Honoria
Empaynado, and that the former had been interred at the Loyola
Memorial Park.
Lastly, petitioners presented the affidavit of Dr. Pedro
Arenas, 8 Ricardo Abad's physician, declaring that in 1935, he
had examined Ricardo Abad and found him to be infected with
gonorrhea, and that the latter had become sterile as a
consequence thereof.
With these pieces of evidence, petitioners claim that Cecilia and
Marian Abad are not the illegitimate children of Ricardo Abad,
but rather the legitimate children of the spouses Jose Libunao
and Honoria Empaynado.
At the outset, it must be noted that petitioners are disputing the
veracity of the trial court's finding of facts. It is a fundamental
and settled rule that factual findings of the trial court, adopted
and confirmed by the Court of Appeals, are final and conclusive
and may not be reviewed on appeal. 9 Petitioners, however,
argue that factual findings of the Court of Appeals are not
binding on this Court when there appears in the record of the
case some fact or circumstance of weight and influence which
has been overlooked, or the significance of which has been
misinterpreted, that if considered, would affect the result of the
case. 10
This Court finds no justifiable reason to apply this exception to
the case at bar.
First, the evidence presented by petitioners to prove that Jose
Libunao died in 1971 are, to say the least, far from conclusive.
Failure to indicate on an enrolment form that one's parent is
"deceased" is not necessarily proof that said parent was still
living during the time said form was being accomplished.
Furthermore, the joint affidavit of Juan Quiambao and Alejandro
Ramos as to the supposed death of Jose Libunao in 1971 is not

competent evidence to prove the latter's death at that time,


being merely secondary evidence thereof. Jose Libunao's death
certificate would have been the best evidence as to when the
latter died. Petitioners have, however, inexplicably failed to
present the same, although there is no showing that said death
certificate has been lost or destroyed as to be unavailable as
proof of Jose Libunao's death. More telling, while the records of
Loyola Memorial Park show that a certain Jose Bautista Libunao
was indeed buried there in 1971, this person appears to be
different from Honoria Empaynado's first husband, the latter's
name being Jose Santos Libunao. Even the name of the wife is
different. Jose Bautista Libunao's wife is listed as Josefa Reyes
while the wife of Jose Santos Libunao was Honoria Empaynado.
As to Dr. Arenas' affidavit, the same was objected to by private
respondents as being privileged communication under Section
24 (c), Rule 130 of the Rules of Court. 11 The rule on confidential
communications between physician and patient requires that: a)
the action in which the advice or treatment given or any
information is to be used is a civil case; b) the relation of
physician and patient existed between the person claiming the
privilege or his legal representative and the physician; c) the
advice or treatment given by him or any information was
acquired by the physician while professionally attending the
patient; d) the information was necessary for the performance of
his professional duty; and e) the disclosure of the information
would tend to blacken the reputation of the patient. 12
Petitioners do not dispute that the affidavit meets the first four
requisites. They assert, however, that the finding as to Ricardo
Abad's "sterility" does not blacken the character of the
deceased. Petitioners conveniently forget that Ricardo Abad's
"sterility" arose when the latter contracted gonorrhea, a fact
which most assuredly blackens his reputation. In fact, given that
society holds virility at a premium, sterility alone, without the
attendant embarrassment of contracting a sexually-transmitted
disease, would be sufficient to blacken the reputation of any
patient. We thus hold the affidavit inadmissible in evidence. And
the same remains inadmissible in evidence, notwithstanding the
death of Ricardo Abad. As stated by the trial court:
In the case of Westover vs. Aetna Life
Insurance Company, 99 N.Y. 59, it was
pointed out that: "The privilege of secrecy is
not abolished or terminated because of
death as stated in established precedents. It
is an established rule that the purpose of the
law would be thwarted and the policy
intended to be promoted thereby would be
defeated, if death removed the seal of
secrecy, from the communications and
disclosures which a patient should make to
his physician. After one has gone to his
grave, the living are not permitted to impair
his name and disgrace his memory by
dragging to light communications and

disclosures made under the seal of the


statute.
Given the above disquisition, it is clearly apparent that
petitioners have failed to establish their claim by the quantum of
evidence required by law. On the other hand, the evidence
presented by private respondents overwhelmingly prove that
they are the acknowledged natural children of Ricardo Abad. We
quote with approval the trial court's decision, thus:

Savings Account 17348 which has (sic) a


balance of P34,812.28 as of June 30, 1972.
(Exh. 60-B). . .
With the finding that private respondents are the illegitimate
children of Ricardo Abad, petitioners are precluded from
inheriting the estate of their brother. The applicable provisions
are:
Art. 988. In the absence of legitimate
descendants or ascendants, the illegitimate
children shall succeed to the entire estate of
the deceased.

In his individual statements of income and


assets for the calendar years 1958 and
1970, and in all his individual income tax
returns for the years 1964, 1965, 1967,
1968, 1969 and 1970, he has declared
therein as his legitimate wife, Honoria
Empaynado; and as his legitimate
dependent children, Cecilia, Marian (except
in Exh. 12) and Rosemarie Abad (Exhs. 12 to
19; TSN, February 26, 1973, pp. 33-44).
xxx xxx xxx
In December 1959, Ricardo Abad insured his
daughters Cecilia, then eleven (11) years
old, and Marian, then (5) years old, on [a]
twenty (20) year-endowment plan with the
Insular Life Assurance Co., Ltd. and paid for
their premiums (Exh. 34 and 34-A; 34-B to C;
35, 35-A to D; TSN, February 27, 1973, pp. 720).
In 1966, he and his daughter Cecilia Abad
opened a trust fund account of P100,000,00
with the People's Bank and Trust Company
which was renewed until (sic) 1971, payable
to either of them in the event of death
(Exhs. 36-A; 36-E). On January 5, 1971,
Ricardo Abad opened a trust fund of
P100,000.00 with the same bank, payable to
his daughter Marian (Exh. 37-A). On January
4, 1971, Ricardo Abad and his sister Dolores
Abad had (sic) agreed to stipulate in their
PBTC Trust Agreement that the 9% income of
their P100,000.00 trust fund shall (sic) be
paid monthly to the account reserved for
Cecilia, under PBTC Savings Account No.
49053 in the name of Ricardo Abad and/or
Cecilia Abad (Exh. 38) where the income of
the trust fund intended for Cecilia was also
deposited monthly (TSN, February 27, 1973,
pp. 21-36). Ricardo Abad had also deposited
(money) with the Monte de Piedad and
Savings Bank in the name of his daughter
Marian, represented by him, as father, under

Art. 1003. If there are no . . . illegitimate


children, or a surviving spouse, the collateral
relatives shall succeed to the entire estate
of the deceased in accordance with the
following articles. (Emphasis supplied).
As to petitioners' claim that the properties m the name of
Ricardo Abad actually belong to their mother Lucila de Mesa,
both the trial court and the appellate court ruled that the
evidence presented by private respondents proved that said
properties in truth belong to Ricardo Abad. As stated earlier, the
findings of fact by the trial court are entitled to great weight and
should not be disturbed on appeal, it being in a better position to
examine the real evidence, as well as to observe the demeanor
of the witnesses while testifying in the case. 13 In fact, petitioners
seem to accept this conclusion, their contention being that they
are entitled to the subject estate whether the same is owned by
Ricardo Abad or by Lucila de Mesa.
Digressing from the main issue, in its decision dated October 19,
1994, the Court of Appeals affirmed the trial court's order dated
March 21, 1975 denying the appeal of Dolores de Mesa Abad and
Cesar de Mesa Tioseco on the ground that the same was filed out
of time. This affirmance is erroneous, for on July 9, 1985, this
Court had already ruled that the same was not filed out of time.
Well-settled is the dictum that the rulings of the Supreme Court
are binding upon and may not be reversed by a lower court.
WHEREFORE, premises considered, the instant petition is hereby
DENIED. The decision of the Court of Appeals in CA-G.R. CV No.
30184 dated October 19, 1994 is AFFIRMED with the
MODIFICATION that the affirmance of the Order dated March 21,
1975 denying the appeal of Dolores de Mesa Abad and Cesar de
Mesa Tioseco for being filed out of time is SET ASIDE. Costs
against petitioners.
SO ORDERED.

G.R. No. 91114. September 25, 1992.]


NELLY LIM, Petitioner, v. THE COURT OF APPEALS, HON.
MANUEL D. VICTORIO, as Presiding Judge of RTC-Rosales,
Pangasinan, Branch 53, and JUAN SIM, Respondents.
Quisumbing, Torres & Evangelista for Petitioner.
Bince, Oficiana & Dancel for Private Respondent.

SYLLABUS

1. REMEDIAL LAW; ACTIONS; EVIDENCE; PRIVILEGED


COMMUNICATIONS; PHYSICIAN-PATIENT PRIVILEGE; RATIONAL
BEHIND THE RULE. This rule on the physician-patient privilege
is intended to facilitate and make safe full and confidential
disclosure by the patient to the physician of all facts,
circumstances and symptoms, untrammeled by apprehension of
their subsequent and enforced disclosure and publication on the
witness stand, to the end that the physician may form a correct
opinion, and be enabled safely and efficaciously to treat his
patient. It rests in public policy and is for the general interest of
the community.
2. ID.; ID.; ID.; ID.; ID.; SUBJECT TO WAIVER. Since the object
of the privilege is to protect the patient, it may be waived if no
timely objection is made to the physicians testimony.
3. ID.; ID.; ID.; ID.; ID.; REQUISITES. In order that the privilege
may be successfully claimed, the following requisites must
concur: "1. the privilege is claimed in a civil case; 2. the person
against whom the privilege is claimed is one duly authorized to
practice medicine, surgery or obstetrics; 3. such person acquired
the information while he was attending to the patient in his
professional capacity; 4. the information was necessary to
enable him to act in that capacity; and 5. the information was
confidential, and, if disclosed, would blacken the reputation
(formerly character) of the patient."cralaw virtua1aw library
4. ID.; ID.; ID.; ID.; CONDITIONS. These requisites conform with
the four (4) fundamental conditions necessary for the
establishment of a privilege against the disclosure of certain
communications, to wit: "1. The communications must originate
in a confidence that they will not be disclosed. 2. This element of
confidentiality must be essential to the full and satisfactory
maintenance of the relation between the parties. 3. The relation
must be one which in the opinion of the community ought to be
sedulously fostered 4. The injury that would inure to the relation
by the disclosure of the communications must be greater than
the benefit thereby gained for the correct disposal of
litigation."cralaw virtua1aw library
5. ID.; ID.; ID.; ID.; PHYSICIAN-PATIENT PRIVILEGE; SCOPE. The
physician may be considered to be acting in his professional
capacity when he attends to the patient for curative, preventive,
or palliative treatment. Thus, only disclosures which would have
been made to the physician to enable him "safely and
efficaciously to treat his patient" are covered by the privilege. It
is to be emphasized that "it is the tenor only of the

communication that is privileged. The mere fact of making a


communication, as well as the date of a consultation and the
number of consultations, are therefore not privileged from
disclosure, so long as the subject communicated is not
stated."cralaw virtua1aw library

The parties are in agreement as to the following


facts:chanrob1es virtual 1aw library

6. ID.; ID.; ID.; BURDEN OF PROOF AND PRESUMPTIONS; ONE


WHO CLAIMS PRIVILEGED COMMUNICATIONS MUST PROVE
REQUISITES THEREOF. One who claims this privilege must
prove the presence of these aforementioned requisites.

On 25 November 1987, private respondent filed with Branch 53


of the Regional Trial Court (RTC) of Pangasinan a petition for
annulment of such marriage on the ground that petitioner has
been allegedly suffering from a mental illness called
schizophrenia "before, during and after the marriage and until
the present." After the issues were joined and the pre-trial was
terminated, trial on the merits ensued. Private respondent
presented three (3) witnesses before taking the witness stand
himself to testify on his own behalf. On 11 January 1989, private
respondents counsel announced that he would present as his
next witness the Chief of the Female Services of the National
Mental Hospital, Dr. Lydia Acampado, a Doctor of Medicine who
specializes in Psychiatry. Said counsel forthwith orally applied for
the issuance of a subpoena ad testificandum requiring Dr.
Acampado to testify on 25 January 1989. Petitioners counsel
opposed the motion on the ground that the testimony sought to
be elicited from the witness is privileged since the latter had
examined the petitioner in a professional capacity and had
diagnosed her to be suffering from schizophrenia. Over such
opposition, the subpoena was issued on 12 January
1989.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph

7. ID.; ID.; ID.; PRIVILEGED COMMUNICATIONS; PHYSICIANPATIENT PRIVILEGE; INFORMATION GATHERED IN PRESENCE OF
THIRD PARTIES, NOT PRIVILEGED. There is authority to the
effect that information elicited during consultation with a
physician in the presence of third parties removes such
information from the mantle of the privilege: "Some courts have
held that the casual presence of a third person destroys the
confidential nature of the communication between doctor and
patient and thus destroys the privilege, and that under such
circumstances the doctor may testify. Other courts have reached
a contrary result."cralaw virtua1aw library
8. ID.; ID.; ID.; ID.; ID.; PRIVILEGED, WAIVED IN CASE AT BAR.
while it may be true that counsel for the petitioner opposed the
oral request for the issuance of a subpoena ad testificandum to
Dr. Acampado and filed a formal motion for the quashal of the
said subpoena a day before the witness was to testify, the
petitioner makes no claim in any of her pleadings that her
counsel had objected to any question asked of the witness on the
ground that it elicited an answer that would violate the privilege,
despite the trial courts advise that said counsel may interpose
his objection to the testimony "once it becomes apparent that
the testimony, sought to be elicited is covered by the privileged
communication rule." The particular portions of the stenographic
notes of the testimony of Dr. Acampado quoted in the
petitioners Petition and Memorandum, and in the private
respondents Memorandum, do not at all show that any
objections were interposed. Even granting ex gratia that the
testimony of Dr. Acampado could be covered by the privilege,
the failure to seasonably object thereto amounted to a waiver
thereof.

DECISION

DAVIDE, JR., J.:

This petition brings into focus the rule on the confidentiality of


the physician-patient relationship. Petitioner urges this Court to
strike down as being violative thereof the resolution of public
respondent Court of Appeals in C.A.-G.R. SP No. 16991 denying
due course to a petition to annul the order of the trial court
allowing a Psychiatrist of the National Mental Hospital to testify
as an expert witness and not as an attending physician of
petitioner.

Petitioner and private respondent are lawfully married to each


other.

On 24 January 1989, petitioners counsel filed an urgent omnibus


motion to quash the subpoena and suspend the proceedings
pending resolution of the motion.
Before Dr. Acampado took the witness stand on 25 January 1989,
the court heard this urgent motion. Movant argued that having
seen and examined the petitioner in a professional capacity, Dr.
Acampado is barred from testifying under the rule on the
confidentiality of a physician-patient relationship. Counsel for
private respondent contended, however, that Dr. Acampado
would be presented as an expert witness and would not testify
on any information acquired while attending to the petitioner in a
professional capacity. The trial court, per respondent Judge,
denied the motion and allowed the witness to testify. Dr.
Acampado thus took the witness stand, was qualified by counsel
for private respondent as an expert witness and was asked
hypothetical questions related to her field of expertise. She
neither revealed the illness she examined and treated the
petitioner for nor disclosed the results of her examination and
the medicines she had prescribed.
Since petitioners counsel insisted that the ruling of the court on
the motion be reduced to writing, respondent Judge issued the
following Order on the same date:jgc:chanrobles.com.ph
"In his omnibus motion filed with the Court only yesterday,
January 24, 1989, petitioner seeks to prevent Dr. Lydia
Acampado from testifying because she saw and examined
respondent Nelly Lim in her professional capacity perforce her
testimony is covered by the privileged (sic) communication rule.
Petitioner contends that Dr. Acampado is being presented as an
expert witness and that she will not testify on any information
she acquired in (sic) attending to Nelly Lim in her professional
capacity.

Based on the foregoing manifestation of counsel for petitioner,


the Court denied the respondents motion and forthwith allowed
Dr. Acampado to testify. However, the Court advised counsel for
respondent to interpose his objection once it becomes apparent
that the testimony sought to be elicited is covered by the
privileged communication rule.
On the witness box, Dr. Acampado answered routinary (sic)
questions to qualify her as an expert in psychiatry; she was
asked to render an opinion as to what kind of illness (sic) are
stelazine tablets applied to; she was asked to render an opinion
on a (sic) hypothetical facts respecting certain behaviours of a
person; and finally she admitted she saw and treated Nelly Lim
but she never revealed what illness she examined and treated
her (sic); nor (sic) the result of her examination of Nelly Lim, nor
(sic) the medicines she prescribed.
WHEREFORE, the omnibus motion dated January 19, 1989 is
hereby DENIED." 1
On 3 March 1989, petitioner filed with the public respondent
Court of Appeals a petition 2 forcertiorari and prohibition,
docketed therein as C.A.-G.R. SP No. 16991, to annul the
aforesaid order of respondent Judge on the ground that the same
was issued with grave abuse of discretion amounting to lack of
jurisdiction, and to prohibit him from proceeding with the
reception of Dr. Acampados testimony.chanrobles.com : virtual
law library
On 18 September 1989, the Court of Appeals promulgated a
resolution 3 denying due course to the petition on the ground
that "the petitioner failed in establishing the confidential nature
of the testimony given by or obtained from Dr. Acampado when
she testified on January 25, 1989." Hence, the respondent Judge
committed no grave abuse of discretion. In support thereof, the
respondent Court discussed the conditions which would render
as inadmissible testimonial evidence between a physician and
his patient under paragraph (c), Section 24, Rule 130 of the
Revised Rules of Court and made the following
findings:jgc:chanrobles.com.ph
"The present suit is a civil case for annulment of marriage and
the person whose testimony is sought to be stopped as a
privileged communication is a physician, who was summoned by
the patient in her professional capacity for curative remedy or
treatment. The divergence in views is whether the information
given by the physician in her testimony in open court on January
25, 1989 was a privileged communication. We are of the opinion
that they do not fall within the realm of a privileged
communication because the information were (sic) not obtained
from the patient while attending her in her professional capacity
and neither were (sic) the information necessary to enable the
physician to prescribe or give treatment to the patient Nelly Lim.
And neither does the information obtained from the physician
tend to blacken the character of the patient or bring disgrace to
her or invite reproach. Dr. Acampado is a Medical Specialist II
and in-charge (sic) of the Female Service of the National Center
for Mental Health a fellow of the Philippine Psychiatrist
Association and a Diplomate of the Philippine Board of
Psychiatrists. She was summoned to testify as an expert witness
and not as an attending physician of petitioner.
After a careful scrutiny of the transcript of Dr. Acampados
testimony, We find no declaration that touched (sic) or disclosed
any information which she has acquired from her patient, Nelly
Lim, during the period she attended her patient in a professional

capacity. Although she testified that she examined and


interviewed the patient, she did not disclose anything she
obtained in the course of her examination, interview and
treatment of her patient. Given a set of facts and asked a
hypothetical question, Dr. Acampado rendered an opinion
regarding the history and behaviour of the fictitious character in
the hypothetical problem. The facts and conditions alleged in the
hypothetical problem did not refer and (sic) had no bearing to
(sic) whatever information or findings the doctor obtained from
attending the (sic) patient. A physician is not disqualified to
testify as an expert concerning a patients ailment, when he can
disregard knowledge acquired in attending such patient and
make answer solely on facts related in (sic) the hypothetical
question. (Butler v. Role, 242 Pac. 436; Supreme Court of Arizona
Jan. 7, 1926). Expert testimony of a physician based on
hypothetical question (sic) as to cause of illness of a person
whom he has attended is not privileged, provided the physician
does not give testimony tending to disclose confidential
information related to him in his professional capacity while
attending to the patient. (Crago v. City of Cedar Rapids, 98 NW
354, see Jones on Evidence, Vol. 3, p. 843, 3rd Ed.).
The rule on privilege (sic) communication in the relation of
physician and patient proceeds from the fundamental
assumption that the communication to deserve protection must
be confidential in their origin. Confidentiality is not to be blindly
implied from the mere relation of physician and patient. It might
be implied according to circumstances of each case, taking into
consideration the nature of the ailment and the occasion of the
consultation. The claimant of the privilege has the burden of
establishing in each instance all the facts necessary to create the
privilege, including the confidential nature of the information
given." 4
Her motion to reconsider the resolution having been denied,
petitioner took this recourse under Rule 45 of the Rules of Court.
In her view, the respondent Court of Appeals "seriously erred"
:chanrob1es virtual 1aw library
"I.

. . . in not finding that all the essential elements of the rule on


physician-patient privileged communication under Section 21,
Rule 130 of the Rules of Court (Section 24, Rule 130 of the
Revised Rules of Evidence) exist in the case at bar.
II.

. . . in believing that Dr. Acampado was summoned as an expert


witness and not as an attending physician of petitioner.
III.

. . . in concluding that Dr. Acampado made no declaration that


touched (sic) or disclosed any information which she has
acquired from her patient, Nelly Lim, during the period she
attended her patient in a professional capacity.
IV.

. . . in declaring that the petitioner failed in establishing the


confidential nature of the testimony given by or obtained from
Dr. Acampado." 5
We gave due course to the petition and required the parties to
submit their respective Memoranda 6 after the private
respondent filed his Comment 7 and the petitioner submitted her
reply 8 thereto. The parties subsequently filed their separate
Memoranda.
The petition is devoid of any merit. Respondent Court of Appeals
committed no reversible error in its challenged resolution.
The law in point is paragraph (c), Section 24 of the Revised Rules
on Evidence which reads:jgc:chanrobles.com.ph
"SECTION 24. Disqualification by reason of privileged
communication. The following persons cannot testify as to
matters learned in confidence in the following cases:chanrob1es
virtual 1aw library
x

(c) A person authorized to practice medicine, surgery or


obstetrics cannot in a civil case, without the consent of the
patient, be examined as to any advice or treatment given by him
or any information which he may have acquired in attending
such patient in a professional capacity, which information was
necessary to enable him to act in that capacity, and which would
blacken the reputation of the patient." chanrobles virtual
lawlibrary
This is a reproduction of paragraph (c), Section 21, Rule 130 of
the 1964 Revised Rules of Court with two (2) modifications,
namely: (a) the inclusion of the phrase "advice or treatment
given by him," and (b) substitution of the word reputation for the
word character. Said Section 21 in turn is a reproduction of
paragraph (f), Section 26, Rule 123 of the 1940 Rules of Court
with a modification consisting in the change of the phrase "which
would tend to blacken" in the latter to "would blacken." 9 Verily,
these changes affected the meaning of the provision. Under the
1940 Rules of Court, it was sufficient if the information would
tend to blacken the character of the patient. In the 1964 Rules of
Court, a stricter requirement was imposed; it was imperative that
the information would blacken such character. With the advent of
the Revised Rules on Evidence on 1 July 1989, the rule was
relaxed once more by the substitution of the word character with
the word reputation. There is a distinction between these two
concepts." Character is what a man is, and reputation is what
he is supposed to be in what people say he is.Character
depends on attributes possessed, and reputation on attributes
which others believe one to possess. The former signifies reality
and the latter merely what is accepted to be reality at present."
10
This rule on the physician-patient privilege is intended to
facilitate and make safe full and confidential disclosure by the
patient to the physician of all facts, circumstances and
symptoms, untrammeled by apprehension of their subsequent
and enforced disclosure and publication on the witness stand, to
the end that the physician may form a correct opinion, and be
enabled safely and efficaciously to treat his patient. 11 It rests in
public policy and is for the general interest of the community. 12

Since the object of the privilege is to protect the patient, it may


be waived if no timely objection is made to the physicians
testimony. 13
In order that the privilege may be successfully claimed, the
following requisites must concur:jgc:chanrobles.com.ph
"1. the privilege is claimed in a civil case;
2. the person against whom the privilege is claimed is one duly
authorized to practice medicine, surgery or obstetrics;
3. such person acquired the information while he was attending
to the patient in his professional capacity;
4. the information was necessary to enable him to act in that
capacity; and
5. the information was confidential, and, if disclosed, would
blacken the reputation (formerly character) of the patient." 14
These requisites conform with the four (4) fundamental
conditions necessary for the establishment of a privilege against
the disclosure of certain communications, to
wit:jgc:chanrobles.com.ph
"1. The communications must originate in a confidence that they
will not be disclosed.
2. This element of confidentiality must be essential to the full
and satisfactory maintenance of the relation between the
parties.
3. The relation must be one which in the opinion of the
community ought to be sedulously fostered
4. The injury that would inure to the relation by the disclosure of
the communications must be greater than the benefit thereby
gained for the correct disposal of litigation." 15
The physician may be considered to be acting in his professional
capacity when he attends to the patient for curative, preventive,
or palliative treatment. Thus, only disclosures which would have
been made to the physician to enable him "safely and
efficaciously to treat his patient" are covered by the privilege. 16
It is to be emphasized that "it is the tenor only of the
communication that is privileged. The mere fact of making a
communication, as well as the date of a consultation and the
number of consultations, are therefore not privileged from
disclosure, so long as the subject communicated is not stated."
17

propounded to her relating to the hypothetical problem were


influenced by the information obtained from the petitioner.
Otherwise stated, her expert opinion excluded whatever
information or knowledge she had about the petitioner which
was acquired by reason of the physician-patient relationship
existing between them. As an expert witness, her testimony
before the trial court cannot then be excluded. The rule on this
point is summarized as follows:chanrobles virtual lawlibrary
"The predominating view, with some scant authority otherwise,
is that the statutory physician-patient privilege, though duly
claimed, is not violated by permitting a physician to give expert
opinion testimony in response to a strictly hypothetical question
in a lawsuit involving the physical mental condition of a patient
whom he has attended professionally, where his opinion is based
strictly upon the hypothetical facts stated, excluding and
disregarding any personal professional knowledge he may have
concerning such patient. But in order to avoid the bar of the
physician-patient privilege where it is asserted in such a case,
the physician must base his opinion solely upon the facts
hypothesized in the question, excluding from consideration his
personal knowledge of the patient acquired through the
physician and patient relationship. If he cannot or does not
exclude from consideration his personal professional knowledge
of the patients condition he should not be permitted to testify as
to his expert opinion." 19
Secondly, it is quite clear from Dr. Acampados testimony that
the petitioner was never interviewed alone. Said interviews were
always conducted in the presence of a third party,
thus:jgc:chanrobles.com.ph
"Q I am asking you, doctor, whom did you interview?
A I interviewed the husband first, then the father and after
having the history, I interviewed the patient, Nelly.
Q How many times did Juan Sim and Nelly Lim go to your office?
A Now, the two (2) of them came three (3) times. As I have
stated before, once in the month of April of 1987 and two (2)
times for the month of June 1987, and after that, since July of
1987, it was the father of Nelly, Dr. Lim, who was bringing Nelly
to me until November of 1987.
Q Now, Dr. Lim is a fellow physician?
A Yes, I understand.
Q Was there anything that he told you when he visited with you
in a clinic?

One who claims this privilege must prove the presence of these
aforementioned requisites. 18

A I would say that there was none. Even if I asked information


about Nelly, I could not get anything from Dr. Lim.

Our careful evaluation of the submitted pleadings leads Us to no


other course of action but to agree with the respondent Courts
observation that the petitioner failed to discharge that burden. In
the first place, Dr. Acampado was presented and qualified as an
expert witness. As correctly held by the Court of Appeals, she did
not disclose anything obtained in the course of her examination,
interview and treatment of the petitioner; moreover, the facts
and conditions alleged in the hypothetical problem did not refer
to and had no bearing on whatever information or findings the
doctor obtained while attending to the patient. There is, as well,
no showing that Dr. Acampados answers to the questions

Q Now, when Dr. Lim and his daughter went to your clinic, was
there any doctor who was also present during that interview?
A No, sir, I dont remember any." 20
There is authority to the effect that information elicited during
consultation with a physician in the presence of third parties
removes such information from the mantle of the
privilege:jgc:chanrobles.com.ph
"Some courts have held that the casual presence of a third

person destroys the confidential nature of the communication


between doctor and patient and thus destroys the privilege, and
that under such circumstances the doctor may testify. Other
courts have reached a contrary result." 21
Thirdly, except for the petitioners sweeping claim that" (T)he
information given by Dr. Acampado brings disgrace and invite
(sic) reproach to petitioner by falsely making it appear in the
eyes of the trial court and the public that the latter was suffering
from a mental disturbance called schizophrenia which caused,
and continues to cause, irreparable injury to the name and
reputation of petitioner and her family," 22 which is based on
a wrong premise, nothing specific or concrete was offered to
show that indeed, the information obtained from Dr. Acampado
would blacken the formers "character" (or "reputation"). Dr.
Acampado never disclosed any information obtained from the
petitioner regarding the latters ailment and the treatment
recommended therefor.chanrobles.com : virtual law library
Finally, while it may be true that counsel for the petitioner
opposed the oral request for the issuance of a subpoena ad
testificandum to Dr. Acampado and filed a formal motion for the
quashal of the said subpoena a day before the witness was to
testify, the petitioner makes no claim in any of her pleadings that
her counsel had objected to any question asked of the witness
on the ground that it elicited an answer that would violate the
privilege, despite the trial courts advise that said counsel may
interpose his objection to the testimony "once it becomes
apparent that the testimony, sought to be elicited is covered by
the privileged communication rule." The particular portions of
the stenographic notes of the testimony of Dr. Acampado quoted
in the petitioners Petition 23 and Memorandum, 24 and in the
private respondents Memorandum, 25 do not at all show that
any objections were interposed. Even granting ex gratia that the
testimony of Dr. Acampado could be covered by the privilege,
the failure to seasonably object thereto amounted to a waiver
thereof.
WHEREFORE, the instant petition is DENIED for lack of merit.
Costs against petitioner.
SO ORDERED.

G.R. No. 108854 June 14, 1994


MA. PAZ FERNANDEZ KROHN, petitioner,
vs.
COURT OF APPEALS and EDGAR KROHN, JR., respondents.
Cruz, Durian, Agabin, Atienza, Alday and Tuason for petitioner.
Oscar F. Martinez for private respondent.

BELLOSILLO, J.:
A confidential psychiatric evaluation report is being presented in
evidence before the trial court in a petition for annulment of
marriage grounded on psychological incapacity. The witness
testifying on the report is the husband who initiated the
annulment proceedings, not the physician who prepared the
report.
The subject of the evaluation report, Ma. Paz Fernandez Krohn,
invoking the rule on privileged communication between
physician and patient, seeks to enjoin her husband from
disclosing the contents of the report. After failing to convince the
trial court and the appellate court, she is now before us on a
petition for review on certiorari.
On 14 June 1964, Edgar Krohn, Jr., and Ma. Paz Fernandez were
married at the Saint Vincent de Paul Church in San Marcelino,
Manila. The union produced three children, Edgar Johannes, Karl
Wilhelm and Alexandra. Their blessings notwithstanding, the
relationship between the couple developed into a stormy one. In
1971, Ma. Paz underwent psychological testing purportedly in an
effort to ease the marital strain. The effort however proved futile.
In 1973, they finally separated in fact.
In 1975, Edgar was able to secure a copy of the confidential
psychiatric report on Ma. Paz prepared and signed by Drs.
Cornelio Banaag, Jr., and Baltazar Reyes. On 2 November 1978,
presenting the report among others, he obtained a decree
("Conclusion") from the Tribunal Metropolitanum Matrimoniale in
Manila nullifying his church marriage with Ma. Paz on the ground
of "incapacitas assumendi onera conjugalia due to lack of due
discretion existent at the time of the wedding and
thereafter." 1 On 10 July 1979, the decree was confirmed and
pronounced "Final and Definite." 2
Meanwhile, on 30 July 1982, the then Court of First Instance (now
Regional Trial Court) of Pasig, Br. II, issued an order granting the
voluntary dissolution of the conjugal partnership.

On 23 October 1990, Edgar filed a petition for the annulment of


his marriage with Ma. Paz before the trial court. 3In his petition,
he cited the Confidential Psychiatric Evaluation Report which Ma.
Paz merely denied in her Answer as "either unfounded or
irrelevant." 4
At the hearing on 8 May 1991, Edgar took the witness stand and
tried to testify on the contents of the Confidential Psychiatric
Evaluation Report. This was objected to on the ground that it
violated the rule on privileged communication between physician
and patient. Subsequently, Ma. Paz filed a Manifestation
expressing her "continuing objection" to any evidence, oral or
documentary, "that would thwart the physician-patient privileged
communication rule," 5 and thereafter submitted a Statement for
the Record asserting among others that "there is no factual or
legal basis whatsoever for petitioner (Edgar) to claim
'psychological incapacity' to annul their marriage, such ground
being completely false, fabricated and merely an
afterthought." 6 Before leaving for Spain where she has since
resided after their separation, Ma. Paz also authorized and
instructed her counsel to oppose the suit and pursue her
counterclaim even during her absence.
On 29 May 1991, Edgar opposed Ma. Paz' motion to disallow the
introduction of the confidential psychiatric report as
evidence, 7 and afterwards moved to strike out Ma. Paz'
Statement for the Record. 8
On 4 June 1991, the trial court issued an Order admitting the
Confidential Psychiatric Evaluation Report in evidence and ruling
that
. . . the Court resolves to overrule the
objection and to sustain the Opposition to
the respondent's Motion; first, because the
very issue in this case is whether or not the
respondent had been suffering from
psychological incapacity; and secondly,
when the said psychiatric report was
referred to in the complaint, the respondent
did not object thereto on the ground of the
supposed privileged communication
between patient and physician. What was
raised by the respondent was that the said
psychiatric report was irrelevant. So, the
Court feels that in the interest of justice and
for the purpose of determining whether the
respondent as alleged in the petition was
suffering from psychological incapacity, the
said psychiatric report is very material and
may be testified to by petitioner (Edgar
Krohn, Jr.) without prejudice on the part of
the respondent to dispute the said report or
to cross-examination first the petitioner and

later the psychiatrist who prepared the same


if the latter will be presented. 9
On 27 November 1991, the trial court denied the Motion to
Reconsider Order dated June 4, 1991, and directed that the
Statement for the Record filed by Ma. Paz be stricken off the
record. A subsequent motion for reconsideration filed by her
counsel was likewise denied.
Counsel of Ma. Paz then elevated the issue to respondent Court
of Appeals. In a Decision promulgated 30 October 1992, the
appellate court dismissed the petition for certiorari. 10 On 5
February 1993, the motion to reconsider the dismissal was
likewise denied. Hence, the instant petition for review.
Petitioner now seeks to enjoin the presentation and disclosure of
the contents of the psychiatric report and prays for the
admission of her Statement for the Record to form part of the
records of the case. She argues that since
Sec. 24, par. (c), Rule 130, of the Rules of Court 11 prohibits a
physician from testifying on matters which he may have acquired
in attending to a patient in a professional capacity, "WITH MORE
REASON should be third person (like respondent-husband in this
particular instance) be PROHIBITED from testifying on privileged
matters between a physician and patient or from submitting any
medical report, findings or evaluation prepared by a physician
which the latter has acquired as a result of his confidential and
privileged relation with a patient." 12 She says that the reason
behind the prohibition is
. . . to facilitate and make safe, full and
confidential disclosure by a patient to his
physician of all facts, circumstances and
symptoms, untrammeled by apprehension of
their subsequent and enforced disclosure
and publication on the witness stand, to the
end that the physician may form a correct
opinion, and be enabled safely and
efficaciously to treat his patient. 13
She further argues that to allow her husband to testify on the
contents of the psychiatric evaluation report "will set a very bad
and dangerous precedent because it abets circumvention of the
rule's intent in preserving the sanctity, security and confidence
to the relation of physician and his patient." 14 Her thesis is that
what cannot be done directly should not be allowed to be done
indirectly.
Petitioner submits that her Statement for the Record simply
reiterates under oath what she asserted in her Answer, which
she failed to verify as she had already left for Spain when her
Answer was filed. She maintains that her "Statement for the
Record is a plain and simple pleading and is not as it has never

been intended to take the place of her testimony;" 15 hence,


there is no factual and legal basis whatsoever to expunge it from
the records.

certain forms of antisocial behavior may be prevented by


encouraging those in need of treatment for emotional problems
to secure the services of a psychotherapist.

Private respondent Edgar Krohn, Jr., however contends that "the


rules are very explicit: the prohibition applies only to a physician.
Thus . . . the legal prohibition to testify is not applicable to the
case at bar where the person sought to be barred from testifying
on the privileged communication is the husband and not the
physician of the petitioner." 16 In fact, according to him, the Rules
sanction his testimony considering that a husband may testify
against his wife in a civil case filed by one against the other.

Petitioner's discourse while exhaustive is however


misplaced. Lim v. Court of Appeals 22 clearly lays down the
requisites in order that the privilege may be successfully
invoked: (a) the privilege is claimed in a civil case; (b) the person
against whom the privilege is claimed is one duly authorized to
practice medicine, surgery or obstetrics; (c) such person
acquired the information while he was attending to the patient in
his professional capacity; (d) the information was necessary to
enable him to act in that capacity; and, (e) the information was
confidential and, if disclosed, would blacken the reputation
(formerly character) of the patient.

Besides, private respondent submits that privileged


communication may be waived by the person entitled thereto,
and this petitioner expressly did when she gave her
unconditional consent to the use of the psychiatric evaluation
report when it was presented to the Tribunal Metropolitanum
Matrimoniale which took it into account among others in deciding
the case and declaring their marriage null and void. Private
respondent further argues that petitioner also gave her implied
consent when she failed to specifically object to the admissibility
of the report in her Answer where she merely described the
evaluation report as "either unfounded or irrelevant." At any
rate, failure to interpose a timely objection at the earliest
opportunity to the evidence presented on privileged matters may
be construed as an implied waiver.
With regard to the Statement for the Record filed by petitioner,
private respondent posits that this in reality is an amendment of
her Answer and thus should comply with pertinent provisions of
the Rules of Court, hence, its exclusion from the records for
failure to comply with the Rules is proper.
The treatise presented by petitioner on the privileged nature of
the communication between physician and patient, as well as
the reasons therefor, is not doubted. Indeed, statutes making
communications between physician and patient privileged are
intended to inspire confidence in the patient and encourage him
to make a full disclosure to his physician of his symptoms and
condition. 17 Consequently, this prevents the physician from
making public information that will result in humiliation,
embarrassment, or disgrace to the patient. 18 For, the patient
should rest assured with the knowledge that the law recognizes
the communication as confidential, and guards against the
possibility of his feelings being shocked or his reputation
tarnished by their subsequent disclosure. 19 The physicianpatient privilege creates a zone of privacy, intended to preclude
the humiliation of the patient that may follow the disclosure of
his ailments. Indeed, certain types of information communicated
in the context of the physician-patient relationship fall within the
constitutionally protected zone of privacy, 20 including a patient's
interest in keeping his mental health records
confidential. 21 Thus, it has been observed that the
psychotherapist-patient privilege is founded upon the notion that

In the instant case, the person against whom the privilege is


claimed is not one duly authorized to practice medicine, surgery
or obstetrics. He is simply the patient's husband who wishes to
testify on a document executed by medical practitioners. Plainly
and clearly, this does not fall within the claimed prohibition.
Neither can his testimony be considered a circumvention of the
prohibition because his testimony cannot have the force and
effect of the testimony of the physician who examined the
patient and executed the report.
Counsel for petitioner indulged heavily in objecting to the
testimony of private respondent on the ground that it was
privileged. In his Manifestation before the trial court dated 10
May 1991, he invoked the rule on privileged communications but
never questioned the testimony as hearsay. It was a fatal
mistake. For, in failing to object to the testimony on the ground
that it was hearsay, counsel waived his right to make such
objection and, consequently, the evidence offered may be
admitted.
The other issue raised by petitioner is too trivial to merit the full
attention of this Court. The allegations contained in the
Statement for the Records are but refutations of private
respondent's declarations which may be denied or disproved
during the trial.
The instant appeal has taken its toll on the petition for
annulment. Three years have already lapsed and private
respondent herein, as petitioner before the trial court, has yet to
conclude his testimony thereat. We thus enjoin the trial judge
and the parties' respective counsel to act with deliberate speed
in resolving the main action, and avoid any and all stratagems
that may further delay this case. If all lawyers are allowed to
appeal every perceived indiscretion of a judge in the course of
trial and include in their appeals depthless issues, there will be
no end to litigations, and the docket of appellate courts will
forever be clogged with inconsequential cases. Hence, counsel
should exercise prudence in appealing lower court rulings and
raise only legitimate issues so as not to retard the resolution of

cases. Indeed, there is no point in unreasonably delaying the


resolution of the petition and prolonging the agony of the
wedded couple who after coming out from a storm still have the
right to a renewed blissful life either alone or in the company of
each other. 23
WHEREFORE, the instant petition for review is DENIED for lack of
merit. The assailed Decision of respondent Court of Appeals
promulgated on 30 October 1992 is AFFIRMED.
SO ORDERED.

G.R. No. 131636

March 5, 2003

PEOPLE OF THE PHILIPPINES, appellee,


vs.
ARTEMIO INVENCION Y SORIANO, appellant.
DAVIDE, JR., C.J.:
Before us for automatic review1 is the Decision2 dated 22
September 1997 of the Regional Trial Court of Tarlac, Tarlac,
Branch 65, in Criminal Case No. 9375, finding accused-appellant
Artemio Invencion y Soriano guilty beyond reasonable doubt of
the crime of rape committed against his 16-year-old daughter
Cynthia P. Invencion, and sentencing him to suffer the penalty of
death and to pay Cynthia the sum of P50,000 as moral damages
and P25,000 as exemplary damages, as well as the costs of suit.
Artemio was charged before the Regional Trial Court of Tarlac
with thirteen counts of rape in separate complaints docketed as
Criminal Cases Nos. 9363 to 9375, all dated 17 October 1996.
The cases were consolidated and jointly tried. At his arraignment
Artemio entered a plea of not guilty in each case.
The witnesses presented by the prosecution in its evidence in
chief were Elven Invencion, Eddie Sicat, Gloria Pagala, Dr. Rosario
Fider, and Atty. Florencio Canlas. Presented as rebuttal witnesses
were Gloria Pagala and Celestino Navarro.
Elven Invencion, an 8-year-old grade two pupil of Sapang Tagalog
Elementary School in Tarlac, Tarlac, testified that he is a halfbrother of Cynthia and son of Artemio with his second commonlaw wife. Sometime before the end of the school year in 1996,
while he was sleeping in one room with his father Artemio,
Cynthia, and two other younger brothers, he was awakened by
Cynthias loud cries. Looking towards her, he saw his father on
top of Cynthia, doing a pumping motion. After about two
minutes, his father put on his short pants.3
Elven further declared that Artemio was a very strict and cruel
father and a drunkard. He angrily prohibited Cynthia from
entertaining any of her suitors. Whenever he was drunk, he
would maul Elven and quarrel with his stepfather, Celestino
Navarro.4
Eddie Sicat, a 40-year-old farmer and neighbor of Artemio in
Barangay Sapang Tagalog, Tarlac, Tarlac, testified that on the
second week of March 1996, between 6:00 and 7:00 a.m., while
he was passing by the house of Artemio on his way to the field to
catch fish, he heard somebody crying. He then peeped through a
small opening in the destroyed portion of the sawali wall of
Artemios house. He saw Cynthia lying on her back and crying,
while her father was on top of her, doing a pumping motion.

Eddie observed them for about fifteen seconds, and then he left
and proceeded to the field to catch fish.5 He reported what he
had witnessed to Artemios stepfather, Celestino, later that
morning.6
Gloria Pagala, the mother of Cynthia and former common-law
wife of Artemio, testified that she and Artemio started living
together in Guimba, Nueva Ecija, in February 1969. Out of their
common-law relationship, they had six children, one of whom
was Cynthia. In March 1982, she and Artemio parted ways
permanently. Later, Gloria and her children lived in Pura, Tarlac.
When Artemios mother died sometime in 1996, Cynthia lived
with Artemio in a small one-room dwelling owned by Celestino
and located in Barangay Sapang Tagalog, Tarlac, Tarlac.7 On 30
August 1996, her son Novelito told her that Cynthia was
pregnant. Gloria then went to the house of Artemio and asked
Cynthia about her condition. The latter confessed that she had
been sexually abused by her father. Gloria then went to the
office of the National Bureau of Investigation (NBI) in Tarlac and
reported what Artemio had done to their daughter Cynthia.8
Dr. Rosario Fider of Tarlac Provincial Hospital testified that she
examined Cynthia on 16 September 1996. She found Cynthia to
be five to six months pregnant and to have incomplete, healed
hymenal lacerations at 3, 5, 8 oclock positions, which could
have been caused by sexual intercourse or any foreign body
inserted in her private part.9
Atty. Florencio Canlas, an NBI agent, testified that on 18
September 1996, Cynthia, accompanied by her mother,
complained before him and NBI Supervising Agent Rolando
Vergara that she was raped by her father Artemio. She then
executed a written statement,10 which she subscribed and sworn
to before Atty. Canlas.11
The defense did not present Artemio as a witness. Instead, his
counsel de parte, Atty. Isabelo Salamida, took the witness stand
and testified for the defense. He declared that on 24 June 1997
(the same day when he testified before the court), between
10:45 and 11:00 a.m., he and his secretary went to the house of
Artemio in Barangay Sapang Tagalog. The hut was made of
sawali. Its door was padlocked, and its windows were shut. When
he went around the house and tried to peep through the old
sawali walls on the front and left and right sides of the hut, he
could not see anything inside the room where Artemio and his
children used to sleep. Although it was then about noontime, it
was dark inside.12 Atty. Salamida then concluded that prosecution
witness Eddie Sicat was not telling the truth when he declared
having seen what Artemio did to Cynthia when he peeped
through a small opening in the sawali wall of the house in the
early morning sometime on the second week of March 1996.

On rebuttal, Gloria Pagala testified that the house where Artemio


used to live was a small hut with some destroyed portions in its
sawali walls. When she went there to visit her children sometime
in December 1995, there was a hole in front and at the sidewall
of the hut facing a vacant lot where people passed by to fish in a
nearby brook.13When she went to the place again sometime in
September 1996 after she was informed of Cynthias pregnancy,
she noticed that the destroyed portions of the huts sawali walls
were not yet repaired.14
The second rebuttal witness Celestino Navarro, stepfather of
Artemio, testified that he is the owner of the small house where
Artemio and his children used to reside. At the time that Artemio
and his children, including Cynthia, were living in that house, the
huts old sawali walls had some small holes in them, thus
confirming the testimony of Eddie Sicat. After Artemio was
arrested on the basis of Cynthias complaint before the NBI,
Celestino made some repairs in the hut by, among other things,
placing galvanized iron sheets to cover the holes at the
destroyed portions of the sawali walls. Thereafter, a person
named Alvin occupied the house.15
In its Decision of 22 September 1997, the trial court convicted
Artemio in Criminal Case No. 9375. It, however, acquitted him in
all the other twelve cases for lack of evidence.
In his Appellants Brief, Artemio contends that the trial court
erred in
I
x x x BELIEVING THE TESTIMONIES OF THE
PROSECUTION WITNESSES;
II
x x xNOT DISMISSING THIS CASE FOR FAILURE OF THE
PROSECUTION TO PROVE [HIS] GUILT x x x BEYOND
REASONABLE DOUBT.
Artemio attacks the competency and credibility of Elven as a
witness. He argues that Elven, as his son, should have been
disqualified as a witness against him under Section 20(c), Rule
130 of the Rules of Court.16 Besides, Elvens testimony appears
not to be his but what the prosecution wanted him to say, as the
questions asked were mostly leading questions. Moreover, Elven
had ill-motive in testifying against him, as he (Artemio) was cruel
to him.
In another attempt to cast doubt on the credibility of the
prosecution witnesses, Artemio points to the following

inconsistencies in their testimonies: (1) as to the time of the


commission of the crime, Elven testified having seen Artemio on
top of his sister one night in March 1996, while Eddie Sicat
testified having seen them in the same position between 6:00
and 7:00 a.m. in the second week of March 1996; (2) as to the
residence of Cynthia in 1996, Gloria testified that the former was
living with her in Guimba from November 1995 to September
1996, while Elven and Eddie declared that she was in Sapang
Tagalog in March 1996; and (3) as to the residence of Artemio, Jr.,
Gloria stated that he was living with the appellant, but later she
declared that he was living with her in Pura.
Artemio also argues that since his house had no electricity and
was dark even at daytime, it was impossible for Elven and Eddie
to see him allegedly doing pumping motion on top of Cynthia. In
his Reply Brief, he likewise urges us to disregard the testimonies
of rebuttal witnesses Celestino and Gloria. According to him,
Celestino had an ax to grind against him (Artemio) because he
had been badgering Celestino for his share of the lot where the
hut stands, which was owned by Artemios deceased mother. On
the other hand, Gloria wanted to get rid of Artemio because she
was already cohabiting with another man.
In the Appellees Brief, the Office of the Solicitor General (OSG)
prays for the affirmation of Artemios conviction and sentence,
but recommends that a civil indemnity in the amount of P75,000
be awarded in addition to the awards of moral and exemplary
damages.
We find no cogent reason to overturn the findings of the trial
court on the culpability of Artemio.
It is doctrinally settled that the factual findings of the trial court,
especially on the credibility of the witnesses, are accorded great
weight and respect and will not be disturbed on appeal. This is so
because the trial court has the advantage of observing the
witnesses through the different indicators of truthfulness or
falsehood, such as the angry flush of an insisted assertion, the
sudden pallor of a discovered lie, the tremulous mutter of a
reluctant answer, the forthright tone of a ready reply, the furtive
glance, the blush of conscious shame, the hesitation, the yawn,
the sigh, the candor or lack of it, the scant or full realization of
the solemnity of an oath, or the carriage and mien.17 This rule,
however, admits of exceptions, as where there exists a fact or
circumstance of weight and influence that has been ignored or
misconstrued by the court, or where the trial court has acted
arbitrarily in its appreciation of the facts. 18 We do not find any of
these exceptions in the case at bar.
As to the competency of Elven to testify, we rule that such is not
affected by Section 25, Rule 130 of the Rules of
Court,19 otherwise known as the rule on "filial privilege." This rule
is not strictly a rule on disqualification because a descendant is
not incompetent or disqualified to testify against an
ascendant.20 The rule refers to a privilege not to testify, which

can be invoked or waived like other privileges. As correctly


observed by the lower court, Elven was not compelled to testify
against his father; he chose to waive that filial privilege when he
voluntarily testified against Artemio. Elven declared that he was
testifying as a witness against his father of his own accord and
only "to tell the truth."21

Elven could not have been mistaken in his identification of


Artemio because he had known the latter for a long time.
Moreover, Elven was at the time only two meters away from
Cynthia and Artemio. Even without sufficient illumination, Elven,
who was jostled out of his sleep by Cynthias loud cry, could
observe the pumping motion made by his father.27

Neither can Artemio challenge the prosecutions act of


propounding leading questions on Elven. Section 10(c) of Rule
132 of the Rules of Court22 expressly allows leading questions
when the witness is a child of tender years like Elven.

The alleged ill-motives on the part of Gloria and Celestino were


not sufficiently proved. Nothing in the records suggests any
reason that would motivate Gloria to testify falsely against
Artemio, who is the father of her other children. Moreover, we
have repeatedly held that no mother would subject her child to
the humiliation, disgrace, and trauma attendant to the
prosecution for rape if she were not motivated solely by the
desire to have the person responsible for her childs defilement
incarcerated.28 As for Celestino, he testified that the lot where
the hut stands is owned by his daughter Erlinda, and not by
Artemios mother.29 At any rate, even without Celestinos
testimony, Artemios conviction would stand.

The alleged ulterior motive of Elven in testifying against his


father also deserves scant consideration. Such insinuation of illmotive is too lame and flimsy. As observed by the OSG, Elven,
who was of tender age, could not have subjected himself to the
ordeal of a public trial had he not been compelled by a motive
other than to bring to justice the despoiler of his sisters virtue.
There is no indication that Elven testified because of anger or
any ill-motive against his father, nor is there any showing that he
was unduly pressured or influenced by his mother or by anyone
to testify against his father. The rule is that where there is no
evidence that the principal witness for the prosecution was
actuated by improper motive, the presumption is that he was not
so actuated and his testimony is entitled to full credence.23
We find as inconsequential the alleged variance or difference in
the time that the rape was committed, i.e., during the night as
testified to by Elven, or between 6:00 and 7:00 a.m. per the
testimony of Eddie. The exact time or date of the commission of
rape is not an element of the crime. What is decisive in a rape
charge is that the commission of the rape by the accused has
been sufficiently proved. Inconsistencies and discrepancies as to
minor matters irrelevant to the elements of the crime cannot be
considered grounds for acquittal.24 In this case, we believe that
the crime of rape was, indeed, committed as testified to by Elven
and Eddie.
The alleged inconsistencies in the testimonies of both Elven and
Gloria do not impair the credibility of these witnesses. We agree
with the trial court that they are minor inconsistencies, which do
not affect the credibility of the witnesses. We have held in a
number of cases that inconsistencies in the testimonies of
witnesses that refer to minor and insignificant details do not
destroy the witnesses credibility.25 On the contrary, they may
even be considered badges of veracity or manifestations of
truthfulness on the material points in the testimonies. What is
important is that the testimonies agree on essential facts and
substantially corroborate a consistent and coherent whole.26
Artemios allegation that it was impossible for both Elven and
Eddie to have seen and witnessed the crime because the room
was dark even at daytime was convincingly disputed by rebuttal
witnesses Gloria Pagala and Celestino Navarro. Furthermore, as
observed by the OSG, even if the hut was without electricity,

The remaining issue for our resolution is the correctness of the


penalty of death imposed by the trial court. The death penalty
was imposed because of the trial courts appreciation of the
special qualifying circumstances that Artemio is the father of the
victim and the latter was less than 18 years old at the time the
crime was committed.
Article 335 of the Revised Penal Code, as amended by R.A. No.
7659, which is the governing law in this case, pertinently reads:
Article 335. When and how rape is committed.
The crime of rape shall be punished by reclusion
perpetua.
xxx
The death penalty shall also be imposed if the crime of
rape is committed with any of the following
circumstances:
1. when the victim is under eighteen (18)
years of age and the offender is a parent,
ascendant, step-parent, guardian, relative
by consanguinity or affinity within the third
civil degree, or the common-law spouse of
the parent of the victim.
To justify the imposition of the death penalty in a rape committed
by a father on a daughter, the minority of the victim and her
relationship with the offender, which are special qualifying
circumstances, must be alleged in the complaint or information
and proved by the prosecution during the trial by the quantum of

proof required for conviction. The accusatory portion of the


complaint in Criminal Case No. 9375 reads as follows:
That on or about the month of March 1996 at Sapang
Tagalog, Municipality of Tarlac, Province of Tarlac,
Philippines, and within the jurisdiction of this
Honorable Court, the said accused Artemio S.
Invencion did then and there willfully, unlawfully and
feloniously by using force and intimidation have carnal
knowledge of his daughter Cynthia P. Invencion who
was sixteen (16) years old, in their house.
CONTRARY TO LAW.30
Although the relationship of Cynthia with her father Artemio was
alleged in the complaint and duly established by evidence during
trial, the allegation in the complaint regarding her age was not
clearly proved.
In the very recent case of People v. Pruna,31 we set the
guidelines in appreciating age either as an element of the crime
or as a qualifying circumstance:
1. The best evidence to prove the age of the offended
party is an original or certified true copy of the
certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar
authentic documents such as baptismal certificate and
school records which show the date of birth of the
victim would suffice to prove age.
3. If the certificate of live birth or authentic document
is shown to have been lost or destroyed or otherwise
unavailable, the testimony, if clear and credible, of the
victims mother or a member of the family either by
affinity or consanguinity who is qualified to testify on
matters respecting pedigree such as the exact age or
date of birth of the offended party pursuant to Section
40, Rule 130 of the Rules on Evidence shall be
sufficient under the following circumstances:
a. If the victim is alleged to be below 3 years
of age and what is sought to be proved is
that she is less than 7 years old;
b. If the victim is alleged to be below 7 years
of age and what is sought to be proved is
that she is less than 12 years old;

c. If the victim is alleged to be below 12


years of age and what is sought to be
proved is that she is less than 18 years old.

the sums of P50,000 as indemnity; P50,000 as moral damages;


and P25,000 as exemplary damages.
Costs de oficio.

4. In the absence of a certificate of live birth, authentic


document, or the testimony of the victims mother or
relatives concerning the victims age, the
complainants testimony will suffice provided that it is
expressly and clearly admitted by the accused.
5. It is the prosecution that has the burden of proving
the age of the offended party. The failure of the
accused to object to the testimonial evidence
regarding age shall not be taken against him.
6. The trial court should always make a categorical
finding as to the age of the victim.
In the present case, no birth certificate or any similar authentic
document was presented and offered in evidence to prove
Cynthias age. The statement in the medical certificate showing
Cynthias age is not proof thereof, since a medical certificate
does not authenticate the date of birth of the victim. Moreover,
pursuant to Pruna, Glorias testimony regarding Cynthias age
was insufficient, since Cynthia was alleged to be 16 years old
already at the time of the rape and what is sought to be proved
is that she was then 18 years old. Moreover, the trial court did
not even make a categorical finding on Cynthias minority.
Finally, the silence of Artemio or his failure to object to the
testimonial evidence regarding Cynthias age could not be taken
against him.
It must be stressed that the severity of death penalty, especially
its irreversible and final nature once carried out, makes the
decision-making process in capital offenses aptly subject to the
most exacting rules of procedure and evidence.32 Accordingly, in
the absence of sufficient proof of Cynthias minority, Artemio
cannot be convicted of qualified rape and sentenced to suffer the
death penalty. He should only be convicted of simple rape and
meted the penalty of reclusion perpetua.
As regards the civil liability of Artemio, the awards of moral
damages in the amount of P50,000 and exemplary damages in
the amount of P25,000 are insufficient. Civil indemnity, which is
mandatory upon the finding of the fact of rape,33 should also be
awarded. In simple rape, the civil indemnity for the victim shall
not be less than P50,000.
WHEREFORE, the decision of the Regional Trial Court, Branch
65, Tarlac, Tarlac, in Criminal Case No. 9375 is hereby AFFIRMED
with the modification that that accused Artemio Invencion y
Soriano is held guilty beyond reasonable doubt as principal of
the crime of simple rape, and is sentenced to suffer the penalty
of reclusion perpetua and to pay the victim Cynthia Invencion

SO ORDERED.

G.R. No. 136051

June 8, 2006

ALFREDO P. ROSETE, OSCAR P. MAPALO and CHITO P.


ROSETE, Petitioners,
vs.
JULIANO LIM and LILIA LIM, Respondents.
DECISION

Reconsideration filed by petitioners15 and BPI,16 which


respondents opposed,17 were also denied in an Order dated 24
May 1996.18
On 6 June 1996, BPI filed its Answer with Compulsory
Counterclaim and Cross-claim19 to which respondents filed their
Reply and Answer to Counterclaim.20 Respondents also filed a
Motion21 to Serve Supplemental Allegation against BPI and
petitioner Chito Rosete which the trial court granted in an order
dated 28 July 1996.22

CHICO-NAZARIO, J.:
Before Us is a petition for review on certiorari which seeks to set
aside the Decision1 of the Court of Appeals in CA-G.R. SP No.
45400 dated 24 August 1998 which upheld the Orders of Branch
77 of the Regional Trial Court (RTC) of Quezon City in Civil Case
No. Q-95-25803 dated 22 July 19972 and 27 August
1997,3 allowing the taking of deposition upon oral examination of
petitioners Oscar P. Mapalo and Chito P. Rosete, and its
Resolution4 dated 19 October 1998 denying petitioners Motion
for Reconsideration.
Relevant to the petition are the following antecedents:
On 5 December 1995, respondents Juliano Lim and Lilia Lim filed
before Branch 77 of the RTC of Quezon City a Complaint for
Annulment, Specific Performance with Damages against AFP
Retirement and Separation Benefits System (AFP-RSBS), Espreme
Realty and Development Corporation (Espreme Realty), Alfredo P.
Rosete, Maj. Oscar Mapalo, Chito P. Rosete, Bank of the Philippine
Islands (BPI), and Register of Deeds of the Province of Mindoro
Occidental, docketed as Civil Case No. Q-95-25803.5 It asked,
among other things, that the Deed of Sale executed by AFP-RSBS
covering certain parcels of lands in favor of Espreme Realty and
the titles thereof under the name of the latter be annulled; and
that the AFP-RSBS and Espreme Realty be ordered to execute the
necessary documents to restore ownership and title of said lands
to respondents, and that the Register of Deeds be ordered to
cancel the titles of said land under the name of Espreme Realty
and to transfer the same in the names of respondents.
On 18 January 1996, petitioners filed a Motion to Dismiss on the
grounds that the court has no jurisdiction over the subject matter
of the action or suit and that venue has been improperly laid.6 A
Supplemental Motion to Dismiss was filed by petitioner Alfredo P.
Rosete on 23 January 1996.7 Respondents opposed the Motion to
Dismiss filed by petitioners8 to which petitioners filed their
Reply.9 Respondents filed a Comment on the Reply.10AFPRSBS,11 Espreme Realty,12 and, BPI13 filed their respective
Motions to Dismiss which respondents opposed.
In an Order dated 12 March 1996, the Motions to Dismiss filed by
all the defendants were denied.14 The Motions for

On 7 June 1996, petitioners manifested that on 5 June 1996, they


filed a Petition23 for Certiorari and Prohibition in the Court of
Appeals, docketed as CA-G.R. SP No. 40837, challenging the trial
courts Orders dated 12 March 1996 and 24 May 1996 that
denied their Motions to Dismiss and Reconsideration,
respectively.24 They likewise informed the trial court that on 6
June 1996, they filed an Ex-Parte Motion25 to Admit Answers Ex
Abudanti Cautela.26lavvphi1.net
On 7 August 1996, petitioner Chito Rosete filed a motion asking
that the order granting the Motion to Serve Supplemental
Allegation against BPI and him be reconsidered and set aside,
and that respondents be ordered to reduce their supplemental
allegations in the form and manner required by the Rules of
Court.27 Same was denied in an order dated 12 August
1996.28 This denial was appealed to the Court of Appeals on 26
August 1996, which was docketed as CA-G.R. SP No. 41821.29
Petitioner Chito Rosete filed his Supplemental Answer (Ex
Abudanti Cautela) on 9 September 1996.30
On 28 May 1997, respondents filed a Notice to Take Deposition
Upon Oral Examination giving notice that on June 18 and 20,
1997 at 9:00 a.m., they will cause the deposition of petitioners
Oscar Mapalo and Chito Rosete.31
On 13 June 1997, petitioners filed an Urgent Ex-Parte Motion and
Objection to Take Deposition Upon Oral Examination.32 They
argued that the deposition may not be taken without leave of
court as no answer has yet been served and the issues have not
yet been joined since their Answer was filed ex abudanti cautela,
pending resolution of the Petition for Certiorari challenging the
orders dated 12 March 1996 and 24 May 1996 that denied their
Motions to Dismiss and for Reconsideration, respectively. This is
in addition to the fact that they challenged via a Petition for
Certiorari before the Court of Appeals the lower courts Orders
dated 23 July 1996 and 12 August 1996 which, respectively,
granted respondents Motion to Serve Supplemental Allegation
Against Defendants BPI and Chito Rosete, and for the latter to
plead thereto, and denied Chito Rosetes Motion for
Reconsideration of the order dated 23 July 1996. Moreover, they
contend that since there are two criminal cases pending before

the City Prosecutors of Mandaluyong City and Pasig City


involving the same set of facts as in the present case wherein
respondent Juliano Lim is the private complainant and petitioners
are the respondents, to permit the taking of the deposition would
be violative of their right against self-incrimination because by
means of the oral deposition, respondents would seek to
establish the allegations of fact in the complaint which are also
the allegations of fact in the complaint-affidavits in the said
criminal cases.
Respondents filed their Comment on the Objection to Deposition
Taking33 to which petitioners filed their Reply.34
In an Order dated 22 July 1997, the lower court denied
petitioners motion and objection to take deposition upon oral
examination, and scheduled the taking thereof.35 On 7 August
1997, petitioners filed a Motion for Reconsideration. 36 They filed
a Supplemental Motion for Reconsideration on 11 August 1997.37
On 13 August 1997, petitioners filed an Urgent Ex-parte Motion
to Cancel or Suspend the Taking of the Deposition Upon Oral
Examination.38
In an Order dated 27 August 1997, the lower court denied
petitioners Motion for Reconsideration and Supplemental Motion
for Reconsideration, and scheduled the taking of the Deposition
Upon Oral Examination.39
On 22 September1997, respondents filed an Omnibus Motion: (1)
To Strike Out Answer of Defendants Mapalo and Chito Rosete; (2)
to Declare Defendants Mapalo and Chito Rosete In Default; and
(3) For Reception of Plaintiffs Evidence Ex-parte, 40 which
petitioners opposed.41
On 29 September 1997, petitioners filed with the Court of
Appeals a Petition for Certiorari and Prohibition (CA-G.R. SP No.
45400) assailing the Orders of the lower court dated 22 July 1997
and 27 August 1997.42
In an Order dated 29 October 1997, the lower court: (1) ordered
the striking out from the record of the Answer ex abudanti
cautela filed by petitioners Mapalo and Chito Rosete for their
continued unjustified refusal to be sworn pursuant to Rule 29 of
the 1997 Rules of Civil Procedure; (2) declared defendants
Mapalo and Chito Rosete in default; and I allowed plaintiffs to
present their evidence ex-parte as regards the latter.43 On 25
November 1997, petitioners filed an Urgent Ex-parte Omnibus
Motion (1) For Reconsideration; (2) To Lift Order of Default; and
(3) To Hold In Abeyance Presentation of Plaintiffs Evidence Exparte.44 The day after, petitioners filed an Amended Omnibus
Motion.45

On 28 November 1997, respondents filed a Motion to Set Case


for Ex-parte Presentation of Evidence46 which the lower court set
for 11 December 1997.47
In an Order dated 11 December 1997, the lower court denied
petitioners urgent ex-parte omnibus motion.48 On even date, the
ex-parte presentation of evidence against petitioners Mapalo and
Chito Rosete was terminated.49
On 10 February 1998, petitioners filed a Petition50 for Certiorari
and Prohibition before the Court of Appeals (CA-G.R. SP No.
46774) questioning the lower courts Orders dated 29 October
1997 and 11 December 1997.51
On 24 August 1998, the Court of Appeals dismissed the Petition
for Certiorari and Prohibition, and upheld the Orders of the lower
court dated 22 July 1997 and 27 August 1997 (CA-G.R. SP No.
45400).52 The Motion for Reconsideration53 which was
opposed54 by respondents was denied on 19 October 1998.55
Petitioners assail the ruling of the Court of Appeals via a Petition
for Review on Certiorari. They anchor their petition on the
following grounds:
I.
THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF
JURISDICTION IN DECLARING IN ITS ORDER DATED AUGUST 27,
1997 THAT THE CONSTITUTIONAL RIGHT AGAINST SELF
INCRIMINATION OF OSCAR MAPALO AND CHITO ROSETE WOULD
NOT BE VIOLATED BY THE TAKING OF THEIR DEPOSITION IN THE
CIVIL CASE FILED IN THE LOWER COURT ALTHOUGH THEY ARE
ALSO RESPONDENTS OR DEFENDANTS IN THE AFOREMENTIONED
CRIMINAL CASES FILED BY HEREIN PRIVATE RESPONDENT
JULIANO LIM INVOLVING THE SAME OR IDENTICAL SET OF FACTS;
AND
II.
THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF
JURISDICTION IN DECLARING IN ITS ORDER DATED JULY 22, 1997
THAT (A) THE NOTICE TO TAKE DEPOSITION UPON ORAL
EXAMINATION NEED NOT BE WITH LEAVE OF COURT BECAUSE AN
ANSWER EX ABUDANTE CAUTELA HAS BEEN FILED; AND (B)
JOINDER OF ISSUES IS NOT REQUIRED IN ORDER THAT THE
SECTION 1, RULE 2356 OF THE RULES OF CIVIL PROCEDURE MAY
BE AVAILED OF.
Petitioners argue that the Court of Appeals gravely erred when it
found that the trial court did not abuse its discretion when it
refused to recognize petitioners Oscar Mapalo and Chito Rosetes

constitutional right against self-incrimination when, through its


Orders dated 22 July 1997 and 27 August 1997, it allowed and
scheduled the taking of their depositions by way of oral
examination. They explain they refuse to give their depositions
due to the pendency of two criminal cases against them, namely,
Batasan Pambansa Blg. 22 and Estafa, because their answers
would expose them to criminal action or liability since they would
be furnishing evidence against themselves in said criminal cases.
They allege there can be no doubt that the questions to be asked
during the taking of the deposition would revolve around the
allegations in the complaint in the civil case which are identical
to the allegations in the complaint-affidavits in the two criminal
cases, thus, there is a tendency to incriminate both Oscar
Mapalo and Chito Rosete. Moreover, they explain that while an
ordinary witness may be compelled to take the witness stand
and claim the privilege against self-incrimination as each
question requiring an incriminating answer is shot at him, an
accused may altogether refuse to answer any and all questions
because the right against self-incrimination includes the right to
refuse to testify.
In short, petitioners Mapalo and Chito Rosete refuse to have their
depositions taken in the civil case because they allegedly would
be incriminating themselves in the criminal cases because the
testimony that would be elicited from them may be used in the
criminal cases. As defendants in the civil case, it is their claim
that to allow their depositions to be taken would violate their
constitutional right against self-incrimination because said right
includes the right to refuse to take the witness stand.
In order to resolve this issue, we must determine the extent of a
persons right against self-incrimination. A persons right against
self-incrimination is enshrined in Section 17, Article III of the
1987 Constitution which reads: "No person shall be compelled to
be a witness against himself."
The right against self-incrimination is accorded to every person
who gives evidence, whether voluntary or under compulsion of
subpoena, in any civil, criminal or administrative proceeding. The
right is not to be compelled to be a witness against himself. It
secures to a witness, whether he be a party or not, the right to
refuse to answer any particular incriminatory question, i.e., one
the answer to which has a tendency to incriminate him for some
crime. However, the right can be claimed only when the specific
question, incriminatory in character, is actually put to the
witness. It cannot be claimed at any other time. It does not give
a witness the right to disregard a subpoena, decline to appear
before the court at the time appointed, or to refuse to testify
altogether. The witness receiving a subpoena must obey it,
appear as required, take the stand, be sworn and answer
questions. It is only when a particular question is addressed to
which may incriminate himself for some offense that he may
refuse to answer on the strength of the constitutional guaranty.57

As to an accused in a criminal case, it is settled that he can


refuse outright to take the stand as a witness. In People v.
Ayson,58 this Court clarified the rights of an accused in the matter
of giving testimony or refusing to do so. We said:
An accused "occupies a different tier of protection from an
ordinary witness." Under the Rules of Court, in all criminal
prosecutions the defendant is entitled among others
1) to be exempt from being a witness against himself,
and
2) to testify as witness in his own behalf; but if he
offers himself as a witness he may be cross-examined
as any other witness; however, his neglect or refusal
to be a witness shall not in any manner prejudice or be
used against him.
The right of the defendant in a criminal case "to be exempt from
being a witness against himself" signifies that he cannot be
compelled to testify or produce evidence in the criminal case in
which he is the accused, or one of the accused. He cannot be
compelled to do so even by subpoena or other process or order
of the Court. He cannot be required to be a witness either for the
prosecution, or for a co-accused, or even for himself. In other
words unlike an ordinary witness (or a party in a civil action)
who may be compelled to testify by subpoena, having only the
right to refuse to answer a particular incriminatory question at
the time it is put to him the defendant in a criminal action can
refuse to testify altogether. He can refuse to take the witness
stand, be sworn, answer any question. X x x (Underscoring
supplied.)
It is clear, therefore, that only an accused in a criminal case can
refuse to take the witness stand. The right to refuse to take the
stand does not generally apply to parties in administrative cases
or proceedings. The parties thereto can only refuse to answer if
incriminating questions are propounded. This Court applied the
exception a party who is not an accused in a criminal case is
allowed not to take the witness stand in administrative
cases/proceedings that partook of the nature of a criminal
proceeding or analogous to a criminal proceeding.59 It is likewise
the opinion of the Court that said exception applies to parties in
civil actions which are criminal in nature. As long as the suit is
criminal in nature, the party thereto can altogether decline to
take the witness stand. It is not the character of the suit involved
but the nature of the proceedings that controls.60
In the Ayson case, it is evident that the Court treats a party in a
civil case as an ordinary witness, who can invoke the right
against self-incrimination only when the incriminating question is
propounded. Thus, for a party in a civil case to possess the right
to refuse to take the witness stand, the civil case must also
partake of the nature of a criminal proceeding.

In the present controversy, the case is civil it being a suit for


Annulment, Specific Performance with Damages. In order for
petitioners to exercise the right to refuse to take the witness
stand and to give their depositions, the case must partake of the
nature of a criminal proceeding. The case on hand certainly
cannot be categorized as such. The fact that there are two
criminal cases pending which are allegedly based on the same
set of facts as that of the civil case will not give them the right to
refuse to take the witness stand and to give their depositions.
They are not facing criminal charges in the civil case. Like an
ordinary witness, they can invoke the right against selfincrimination only when the incriminating question is actually
asked of them. Only if and when incriminating questions are
thrown their way can they refuse to answer on the ground of
their right against self-incrimination.
On the second assigned error, petitioners contend that the
taking of their oral depositions should not be allowed without
leave of court as no answer has yet been served and the issues
have not yet been joined because their answers were filed ex
abudanti cautela pending final resolution of the petition for
certiorari challenging the trial courts Orders dated 12 March
1996 and 24 May 1996 that denied their motions to dismiss and
for reconsideration, respectively.
Section 1 of Rule 2461 of the Revised Rules of Court reads:
Section 1. Depositions pending action, when may be taken. By
leave of court after jurisdiction has been obtained over any
defendant or over property which is the subject of the action, or
without such leave after an answer has been served, the
testimony of any person, whether a party or not, may be taken,
at the instance of any party, by deposition upon oral examination
or written interrogatories. The attendance of witnesses may be
compelled by the use of a subpoena as provided in Rule 23.
Depositions shall be taken only in accordance with these rules.
The deposition of a person confined in prison may be taken only
by leave of court on such terms as the court prescribes.
From the quoted section, it is evident that once an answer has
been served, the testimony of a person, whether a party or not,
may be taken by deposition upon oral examination or written
interrogatories. In the case before us, petitioners contend they
have not yet served an answer to respondents because the
answers that they have filed with the trial court were made ex
abudanti cautela. In other words, they do not consider the
answers they filed in court and served on respondents as
answers contemplated by the Rules of Court on the ground that
same were filed ex abudanti cautela.
We find petitioners contention to be untenable. Ex abudanti
cautela means "out of abundant caution" or "to be on the safe
side."62 An answer ex abudanti cautela does not make their
answer less of an answer. A cursory look at the answers filed by
petitioners shows that they contain their respective defenses. An

answer is a pleading in which a defending party sets forth his


defenses63 and the failure to file one within the time allowed
herefore may cause a defending party to be declared in
default.64 Thus, petitioners, knowing fully well the effect of the
non-filing of an answer, filed their answers despite the pendency
of their appeal with the Court of Appeals on the denial of their
motion to dismiss.
Petitioners argument that the issues of the case have not yet
been joined must necessarily fail in light of our ruling that
petitioners have filed their answers although the same were
made ex abudanti cautela. Issues are joined when all the parties
have pleaded their respective theories and the terms of the
dispute are plain before the court.65 In the present case, the
issues have, indeed, been joined when petitioners, as well as the
other defendants, filed their answers. The respective claims and
defenses of the parties have been defined and the issues to be
decided by the trial court have been laid down.
We cannot also sustain petitioners contention that the lower
court erred when it said that the joinder of issues is not required
in order that Section 1, Rule 23 of the 1997 Rules of Civil
Procedure may be availed of. Under said section, a deposition
pending action may be availed of: (1) with leave of court when
an answer has not yet been filed but after jurisdiction has been
obtained over any defendant or property subject of the action, or
(2) without leave of court after an answer to the complaint has
been served. In the instant case, the taking of the deposition
may be availed of even without leave of court because
petitioners have already served their answers to the complaint.
WHEREFORE, all the foregoing considered, the instant petition is
dismissed for lack of merit.
SO ORDERED.

G.R. No. 85215 July 7, 1989

(Printed)
At the
F. close
Ramos
of the people's case, the private prosecutors made a
written offer of evidence dated June 21, 1988, 6which included
"the (above mentioned) statement of accused Felipe J. Ramos
THE PEOPLE OF THE PHILIPPINES, petitioner,
At the investigation of February 9, 1986, conducted by the PAL
taken on February 9, 1986 at PAL Baguio City Ticket Office,"
vs.
Branch Manager in Baguio City, Edgardo R. Cruz, in the presence
which had been marked as Exhibit A, as well as his "handwritten
HON. JUDGE RUBEN AYSON, Presiding over Branch 6,
of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo
admission x x given on February 8, 1986," also above referred to,
Regional Trial Court, First Judicial Region, Baguio City,
Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe
which had been marked as Exhibit K.
and FELIPE RAMOS, respondents.
Ramos was informed "of the finding of the Audit Team."
Thereafter, his answers in response to questions by Cruz, were
taken down in writing. Ramos' answers were to the effect inter
The defendant's attorneys filed "Objections/Comments to Plaintiff
Nelson Lidua for private respondent.
alia that he had not indeed made disclosure of the tickets
s Evidence." 7 Particularly as regards the peoples' Exhibit A, the
mentioned in the Audit Team's findings, that the proceeds had
objection was that "said document, which appears to be a
been "misused" by him, that although he had planned on paying
confession, was taken without the accused being represented by
back the money, he had been prevented from doing so, "perhaps
a lawyer." Exhibit K was objected to "for the same reasons
(by) shame," that he was still willing to settle his obligation, and
interposed under Exhibits 'A' and 'J.'
NARVASA, J.:
proferred a "compromise x x to pay on staggered basis, (and) the
amount would be known in the next investigation;" that he
By Order dated August 9, 1988, 8 the respondent judge admitted
What has given rise to the controversy at bar is the equation by
desired the next investigation to be at the same place, "Baguio
all the exhibits "as part of the testimony of the witnesses who
the respondent Judge of the right of an individual not to "be
CTO," and that he should be represented therein by "Shop
testified in connection therewith and for whatever they are
compelled to be a witness against himself" accorded by Section
stewardees ITR Nieves Blanco;" and that he was willing to sign
worth," except Exhibits A and K, which it rejected. His Honor
20, Article III of the Constitution, with the right of any
his statement (as he in fact afterwards did). 4 How the
declared Exhibit A "inadmissible in evidence, it appearing that it
person "under investigation for the commission of an offense . . .
investigation turned out is not dealt with the parties at all; but it
is the statement of accused Felipe Ramos taken on February 9,
to remain silent and to counsel, and to be informed of such
would seem that no compromise agreement was reached much
1986 at PAL Baguio City Ticket Office, in an investigation
right," granted by the same provision. The relevant facts are not
less consummated.
conducted by the Branch Manager x x since it does not appear
disputed.
that the accused was reminded of this constitutional rights to
About two (2) months later, an information was filed against
remain silent and to have counsel, and that when he waived the
Private respondent Felipe Ramos was a ticket freight clerk of the
Felipe Ramos charging him with the crime of estafa allegedly
same and gave his statement, it was with the assistance actually
Philippine Airlines (PAL), assigned at its Baguio City station. It
committed in Baguio City during the period from March 12, 1986
of a counsel." He also declared inadmissible "Exhibit K, the
having allegedly come to light that he was involved in
to January 29, 1987. In that place and during that time,
handwritten admission made by accused Felipe J. Ramos, given
irregularities in the sales of plane tickets, 1 the PAL management
according to the indictment, 5 he (Ramos)
on February 8, 1986 x x for the same reason stated in the
notified him of an investigation to be conducted into the matter
exclusion of Exhibit 'A' since it does not appear that the accused
of February 9, 1986. That investigation was scheduled in
was assisted by counsel when he made said admission."
.. with unfaithfulness and/or abuse of
accordance with PAL's Code of Conduct and Discipline, and the
confidence, did then and there willfully ...
Collective Bargaining Agreement signed by it with the Philippine
defraud the Philippine Airlines, Inc., Baguio
The private prosecutors filed a motion for reconsideration. 9 It
Airlines Employees' Association (PALEA) to which Ramos
Branch,
...
in
the
following
manner,
to
wit:
was denied, by Order dated September 14, 1988. 10 In
pertained. 2
said accused ... having been entrusted with
justification of said Order, respondent Judge invoked this Court's
and received in trust fare tickets of
rulings in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA
On the day before the investigation, February 8,1986, Ramos
passengers for one-way trip and round-trip
538, People v. Galit, 135 SCRA 467, People. v. Sison, 142 SCRA
gave to his superiors a handwritten notes 3 reading as follows:
in the total amount of P76,700.65, with the
219, and People v. Decierdo, 149 SCRA 496, among others, to
express obligation to remit all the proceeds
the effect that "in custodial investigations the right to counsel
of the sale, account for it and/or to return
may be waived but the waiver shall not be valid unless made
2-8-86
those unsold, ... once in possession thereof
with the assistance of counsel," and the explicit precept in the
and instead of complying with his obligation,
present Constitution that the rights in custodial investigation
TO WHOM IT MAY CONCERN:
with intent to defraud, did then and there ...
"cannot be waived except in writing and in the presence of
misappropriate, misapply and convert the
counsel." He pointed out that the investigation of Felipe Ramos
value of the tickets in the sum of P76,700.65
at the PAL Baguio Station was one "for the offense of allegedly
THE UNDERSIGNED WOULD LIKE TO STATE
and in spite of repeated demands, ... failed
misappropriating the proceeds of the tickets issued to him' and
THAT HE IS WILLING TO SETTLE
and refused to make good his obligation, to
therefore clearly fell "within the coverage of the constitutional
IRREGULARITIES ALLEGEDLY CHARGED VS.
the damage and prejudice of the offended
provisions;" and the fact that Ramos was not detained at the
HIM IN THE AMT. OF P 76,000 (APPROX.)
party .. .
time, or the investigation was administrative in character could
SUBJECT TO CONDITIONS AS MAY BE
not operate to except the case "from the ambit of the
IMPOSED BY PAL ON OR BEFORE 1700/9 FEB
constitutional provision cited."
86.
On arraignment on this charge, Felipe Ramos entered a plea of
"Not Guilty," and trial thereafter ensued. The prosecution of the
case was undertaken by lawyers of PAL under the direction and
These Orders, of August 9, 1988 and September 14, 1988 are
(s) Felipe Ramos
supervision of the Fiscal.
now assailed in the petition for certiorari and prohibition at bar,

filed in this Court by the private prosecutors in the name of the


People of the Philippines. By Resolution dated October 26, 1988,
the Court required Judge Ayson and Felipe Ramos to comment on
the petition, and directed issuance of a "TEMPORARY
RESTRAINING ORDER . . . ENJOINING the respondents from
proceeding further with the trial and/or hearing of Criminal Case
No. 3488-R (People ... vs. Felipe Ramos), including the issuance
of any order, decision or judgment in the aforesaid case or on
any matter in relation to the same case, now pending before the
Regional Trial Court of Baguio City, Br. 6, First Judicial Region."
The Court also subsequently required the Solicitor General to
comment on the petition. The comments of Judge Ayson, Felipe
Ramos, and the Solicitor General have all been filed. The Solicitor
General has made common cause with the petitioner and prays
"that the petition be given due course and thereafter judgment
be rendered setting aside respondent Judge's Orders . . . and
ordering him to admit Exhibits 'A' and 'K' of the prosecution." The
Solicitor General has thereby removed whatever impropriety
might have attended the institution of the instant action in the
name of the People of the Philippines by lawyers de parte of the
offended party in the criminal action in question.
The Court deems that there has been full ventilation of the issue
of whether or not it was grave abuse of discretion for
respondent Judge to have excluded the People's Exhibits A and K.
It will now proceed to resolve it.
At the core of the controversy is Section 20, Article IV of the
1973 Constitution, 11 to which respondent Judge has given a
construction that is disputed by the People. The section reads as
follows:
SEC. 20. No person shall be compelled to be
a witness against himself Any person under
investigation for the commission of an
offense shall have the right to remain silent
and to counsel, and to be informed of such
right. No force, violence, threat, intimidation,
or any other means which vitiates the free
will shall be used against him. Any
confession obtained in violation of this
section shall be inadmissible in evidence.
It should at once be apparent that there are two (2) rights, or
sets of rights, dealt with in the section, namely:
1) the right against self-incrimination i.e.,
the right of a person not to be compelled to
be a witness against himself set out in the
first sentence, which is a verbatim
reproduction of Section 18, Article III of the
1935 Constitution, and is similar to that
accorded by the Fifth Amendment of the
American Constitution, 12 and

2) the rights of a person in custodial


interrogation, i.e., the rights of every
suspect "under investigation for the
commission of an offense."

or in behalf of the witness, the protection does not come into


play. It follows that the right may be waived, expressly, or
impliedly, as by a failure to claim it at the appropriate time. 18
Rights in Custodial Interrogation

Parenthetically, the 1987 Constitution indicates much more


clearly the individuality and disparateness of these rights. It has
placed the rights in separate sections. The right against selfincrimination, "No person shall be compelled to be a witness
against himself," is now embodied in Section 17, Article III of the
1987 Constitution. The lights of a person in custodial
interrogation, which have been made more explicit, are now
contained in Section 12 of the same Article III. 13

Section 20, Article IV of the 1973 Constitution also treats of a


second right, or better said, group of rights. These rights apply to
persons "under investigation for the commission of an offense,"
i.e., "suspects" under investigation by police authorities; and this
is what makes these rights different from that embodied in the
first sentence, that against self-incrimination which, as
aforestated, indiscriminately applies to any person testifying in
any proceeding, civil, criminal, or administrative.

Right Against Self-Incrimination


The first right, against self-incrimination, mentioned in Section
20, Article IV of the 1973 Constitution, is accorded to every
person who gives evidence, whether voluntarily or under
compulsion of subpoena, in any civil, criminal, or administrative
proceeding. 14 The right is NOT to "be compelled to be a witness
against himself"
The precept set out in that first sentence has a settled
meaning. 15 It prescribes an "option of refusal to answer
incriminating questions and not a prohibition of inquiry." 16 It
simply secures to a witness, whether he be a party or not, the
right to refue to answer any particular incriminatory question,
i.e., one the answer to which has a tendency to incriminate him
for some crime. However, the right can be claimed only when the
specific question, incriminatory in character, is actually put to
the witness. It cannot be claimed at any other time. It does not
give a witness the right to disregard a subpoena, to decline to
appear before the court at the time appointed, or to refuse to
testify altogether. The witness receiving a subpoena must obey
it, appear as required, take the stand, be sworn and answer
questions. It is only when a particular question is addressed to
him, the answer to which may incriminate him for some offense,
that he may refuse to answer on the strength of the
constitutional guaranty.
That first sentence of Section 20, Article IV of the 1973
Constitution does not impose on the judge, or other officer
presiding over a trial, hearing or investigation, any affirmative
obligation to advise a witness of his right against selfincrimination. It is a right that a witness knows or should know,
in accordance with the well known axiom that every one is
presumed to know the law, that ignorance of the law excuses no
one. Furthermore, in the very nature of things, neither the judge
nor the witness can be expected to know in advance the
character or effect of a question to be put to the latter. 17
The right against self-incrimination is not self- executing or
automatically operational. It must be claimed. If not claimed by

This provision granting explicit rights to persons under


investigation for an offense was not in the 1935 Constitution. It is
avowedly derived from the decision of the U.S. Supreme Court in
Miranda v. Arizona, 19 a decision described as an "earthquake in
the world of law enforcement." 20
Section 20 states that whenever any person is "under
investigation for the commission of an offense"-1) he shall have the right to remain silent
and to counsel, and to be informed of such
right, 21
2) nor force, violence, threat, intimidation, or
any other means which vitiates the free will
shall be used against him; 22 and
3) any confession obtained in violation of x x
(these rights shall be inadmissible in
evidence. 23
In Miranda, Chief Justice Warren summarized the procedural
safeguards laid down for a person in police custody, "in-custody
interrogation" being regarded as the commencement of an
adversary proceeding against the suspect.24
He must be warned prior to any questioning that he has the right
to remain silent, that anything he says can be used against him
in a court of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires.
Opportunity to exercise those rights must be afforded to him
throughout the interrogation. After such warnings have been
given, such opportunity afforded him, the individual may
knowingly and intelligently waive these rights and agree to
answer or make a statement. But unless and until such warnings
and waivers are demonstrated by the prosecution at the trial, no

evidence obtained as a result of interrogation can be used


against him.
The objective is to prohibit "incommunicado interrogation of
individuals in a police-dominated atmosphere, resulting in selfincriminating statement without full warnings of constitutional
rights." 25
The rights above specified, to repeat, exist only in "custodial
interrogations," or "in-custody interrogation of accused
persons." 26 And, as this Court has already stated, by custodial
interrogation is meant "questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way." 27 The
situation contemplated has also been more precisely described
by this Court." 28
.. . After a person is arrested and his
custodial investigation begins a
confrontation arises which at best may be
tanned unequal. The detainee is brought to
an army camp or police headquarters and
there questioned and "cross-examined" not
only by one but as many investigators as
may be necessary to break down his morale.
He finds himself in strange and unfamiliar
surroundings, and every person he meets he
considers hostile to him. The investigators
are well-trained and seasoned in their work.
They employ all the methods and means
that experience and study have taught them
to extract the truth, or what may pass for it,
out of the detainee. Most detainees are
unlettered and are not aware of their
constitutional rights. And even if they were,
the intimidating and coercive presence of
the officers of the law in such an
atmosphere overwhelms them into silence.
Section 20 of the Bill of Rights seeks to
remedy this imbalance.
Not every statement made to the police by a person involved in
some crime is within the scope of the constitutional protection. If
not made "under custodial interrogation," or "under investigation
for the commission of an offense," the statement is not
protected. Thus, in one case, 29 where a person went to a police
precinct and before any sort of investigation could be initiated,
declared that he was giving himself up for the killing of an old
woman because she was threatening to kill him by barang, or
witchcraft, this Court ruled that such a statement was
admissible, compliance with the constitutional procedure on
custodial interrogation not being exigible under the
circumstances.
Rights of Defendant in Criminal Case

As Regards Giving of Testimony


It is pertinent at this point to inquire whether the rights just
discussed, i.e., (1) that against self-incrimination and (2) those
during custodial interrogation apply to persons under preliminary
investigation or already charged in court for a crime.
It seems quite evident that a defendant on trial or under
preliminary investigation is not under custodial interrogation. His
interrogation by the police, if any there had been would already
have been ended at the time of the filing of the criminal case in
court (or the public prosecutors' office). Hence, with respect to a
defendant in a criminal case already pending in court (or the
public prosecutor's office), there is no occasion to speak of his
right while under "custodial interrogation" laid down by the
second and subsequent sentences of Section 20, Article IV of the
1973 Constitution, for the obvious reason that he is no longer
under "custodial interrogation."
But unquestionably, the accused in court (or undergoing
preliminary investigation before the public prosecutor), in
common with all other persons, possesses the right against selfincrimination set out in the first sentence of Section 20 Article IV
of the 1973 Constitution, i.e., the right to refuse to answer a
specific incriminatory question at the time that it is put to him. 30
Additionally, the accused in a criminal case in court has other
rights in the matter of giving testimony or refusing to do so. An
accused "occupies a different tier of protection from an ordinary
witness." Under the Rules of Court, in all criminal prosecutions
the defendant is entitled among others1) to be exempt from being a witness against himself, 31 and 2)
to testify as witness in his own behalf; but if he offers himself as
a witness he may be cross-examined as any other witness;
however, his neglect or refusal to be a witness shall not in any
manner prejudice or be used against him. 32
The right of the defendant in a criminal case "to be exempt from
being a witness against himself' signifies that he cannot be
compelled to testify or produce evidence in the criminal case in
which he is the accused, or one of the accused. He cannot be
compelled to do so even by subpoena or other process or order
of the Court. He cannot be required to be a witness either for the
prosecution, or for a co-accused, or even for himself. 33 In other
words unlike an ordinary witness (or a party in a civil action)
who may be compelled to testify by subpoena, having only the
right to refuse to answer a particular incriminatory question at
the time it is put to him-the defendant in a criminal action can
refuse to testify altogether. He can refuse to take the witness
stand, be sworn, answer any question. 34 And, as the law
categorically states, "his neglect or refusal to be a witness shall
not in any manner prejudice or be used against him." 35

If he should wish to testify in his own behalf, however, he may do


so. This is his right. But if he does testify, then he "may be crossexamined as any other witness." He may be cross-examined as
to any matters stated in his direct examination, or connected
therewith . 36 He may not on cross-examination refuse to answer
any question on the ground that the answer that he will give, or
the evidence he will produce, would have a tendency to
incriminate him for the crime with which he is charged.
It must however be made clear that if the defendant in a criminal
action be asked a question which might incriminate him, not for
the crime with which he is charged, but for some other crime,
distinct from that of which he is accused, he may decline to
answer that specific question, on the strength of the right
against self-incrimination granted by the first sentence of Section
20, Article IV of the 1973 Constitution (now Section 17 of the
1987 Constitution). Thus, assuming that in a prosecution for
murder, the accused should testify in his behalf, he may not on
cross-examination refuse to answer any question on the ground
that he might be implicated in that crime of murder; but he may
decline to answer any particular question which might implicate
him for a different and distinct offense, say, estafa.
In fine, a person suspected of having committed a crime and
subsequently charged with its commission in court, has the
following rights in the matter of his testifying or producing
evidence, to wit:
1) BEFORE THE CASE IS FILED IN COURT (or
with the public prosecutor, for preliminary
investigation), but after having been taken
into custody or otherwise deprived of his
liberty in some significant way, and on being
interrogated by the police: the continuing
right to remain silent and to counsel, and to
be informed thereof, not to be subjected to
force, violence, threat, intimidation or any
other means which vitiates the free will; and
to have evidence obtained in violation of
these rights rejected; and
2) AFTER THE CASE IS FILED IN COURT

37

a) to refuse to be a
witness;
b) not to have any
prejudice whatsoever
result to him by such
refusal;
c) to testify in his own
behalf, subject to cross-

examination by the
prosecution;
d) WHILE TESTIFYING, to
refuse to answer a
specific question which
tends to incriminate him
for some crime other
than that for which he is
then prosecuted.
It should by now be abundantly apparent that respondent Judge
has misapprehended the nature and import of the disparate
rights set forth in Section 20, Article IV of the 1973 Constitution.
He has taken them as applying to the same juridical situation,
equating one with the other. In so doing, he has grossly erred. To
be sure, His Honor sought to substantiate his thesis by
arguments he took to be cogent and logical. The thesis was
however so far divorced from the actual and correct state of the
constitutional and legal principles involved as to make
application of said thesis to the case before him tantamount to
totally unfounded, whimsical or capricious exercise of power. His
Orders were thus rendered with grave abuse of discretion. They
should be as they are hereby, annulled and set aside.
It is clear from the undisputed facts of this case that Felipe
Ramos was not in any sense under custodial interrogation, as the
term should be properly understood, prior to and during the
administrative inquiry into the discovered irregularities in ticket
sales in which he appeared to have had a hand. The
constitutional rights of a person under custodial interrogation
under Section 20, Article IV of the 1973 Constitution did not
therefore come into play, were of no relevance to the inquiry. It is
also clear, too, that Ramos had voluntarily answered questions
posed to him on the first day of the administrative investigation,
February 9, 1986 and agreed that the proceedings should be
recorded, the record having thereafter been marked during the
trial of the criminal action subsequently filed against him as
Exhibit A, just as it is obvious that the note (later marked as
Exhibit K) that he sent to his superiors on February 8,1986, the
day before the investigation, offering to compromise his liability
in the alleged irregularities, was a free and even spontaneous act
on his part. They may not be excluded on the ground that the socalled "Miranda rights" had not been accorded to Ramos.
His Honor adverts to what he perceives to be the "greater
danger x x (of) the violation of the right of any person against
self-incrimination when the investigation is conducted by the
complaining parties, complaining companies, or complaining
employers because being interested parties, unlike the police
agencies who have no propriety or pecuniary interest to protect,
they may in their over-eagerness or zealousness bear heavily on
their hapless suspects, whether employees or not, to give
statements under an atmosphere of moral coercion, undue
ascendancy and undue influence." It suffices to draw attention to

the specific and peremptory requirement of the law that


disciplinary sanctions may not be imposed on any employee by
his employer until and unless the employee has been accorded
due process, by which is meant that the latter must be informed
of the offenses ascribed to him and afforded adequate time and
opportunity to explain his side. The requirement entails the
making of statements, oral or written, by the employee under
such administrative investigation in his defense, with opportunity
to solicit the assistance of counsel, or his colleagues and friends.
The employee may, of course, refuse to submit any statement at
the investigation, that is his privilege. But if he should opt to do
so, in his defense to the accusation against him, it would be
absurd to reject his statements, whether at the administrative
investigation, or at a subsequent criminal action brought against
him, because he had not been accorded, prior to his making and
presenting them, his "Miranda rights" (to silence and to counsel
and to be informed thereof, etc.) which, to repeat, are relevant
only in custodial investigations. Indeed, it is self-evident that the
employee's statements, whether called "position paper,"
"answer," etc., are submitted by him precisely so that they may
be admitted and duly considered by the investigating officer or
committee, in negation or mitigation of his liability.
Of course the possibility cannot be discounted that in certain
instances the judge's expressed apprehensions may be realized,
that violence or intimidation, undue pressure or influence be
brought to bear on an employee under investigation or for
that matter, on a person being interrogated by another whom he
has supposedly offended. In such an event, any admission or
confession wrung from the person under interrogation would be
inadmissible in evidence, on proof of the vice or defect vitiating
consent, not because of a violation of Section 20, Article IV of the
1973 Constitution, but simply on the general, incontestable
proposition that involuntary or coerced statements may not in
justice be received against the makers thereof, and really should
not be accorded any evidentiary value at all.
WHEREFORE, the writ of certiorari is granted annulling and
setting aside the Orders of the respondent Judge in Criminal
Case No. 3488-R, dated August 9, 1988 and September 14,
1988, and he is hereby ordered to admit in evidence Exhibits "A"
and "K" of the prosecution in said Criminal Case No. 3488-R, and
thereafter proceed with the trial and adjudgment thereof. The
temporary restraining order of October 26, 1988 having become
functus officio, is now declared of no further force and effect.
Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

G.R. No. 127073 January 29, 1998


JOSE P. DANS, JR., petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
G.R. No. 126995 January 29, 1998
IMELDA R. MARCOS, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN (FIRST DIVISION), AND
THE PEOPLE OF THE PHILIPPINES,respondents.

ROMERO, J.:
A man's signature, even if merely a flourish or even if
indecipherable, may signify authority, agreement,
acknowledgment and ownership. As indelible as his fingerprints,
dental records or DNA genetic map, it denotes trust and honor.
But the same trust and honor may be tainted by polluted
intentions, as when signing is done in bad faith, or to perpetrate
a fraud, to deceive others, or to commit a crime. The petitions at
bar will illustrate how one's John Hancock can bring a man, or a
woman for that matter, to ruin.
Sometime in 1984, then Minister of Human Settlements Imelda
R. Marcos and then Transportation and Communications Minister
Jose P. Dans, Jr., petitioners herein, entered into several contracts
involving the Light Rail Transit Authority (LRTA) and the Philippine
General Hospital Foundation, Inc. (PGHFI). Concurrently and
respectively, Marcos and Dans served as ex-oficio Chairman
and ex-oficio Vice-Chairman of the LRTA, and as Chairman and
Director of the Board of Trustees of the PGHFI. By virtue of these
agreements, which were authorized and in fact ratified by the
LRTA Board of Directors, two vacant LRTA lots consisting of a
7,340-square meter parcel of land located in Pasay City (the
Pasay lot), and a 1,141.20-square meter lot in Carriedo, Sta.
Cruz, Manila (the Sta. Cruz lot), were leased out to the PGHFI.
Specifically, the LRTA and the PGHFI, represented by Dans and
Marcos, respectively, approved three deeds, namely, an
"Agreement for the Development of the Areas Adjacent to the
Light Rail Transit System Stations and the Management and
Operation of the Concession Areas Therein," 1 and two lease
agreements 2 dated June 8 and June 18, 1984, covering the Pasay
and the Sta. Cruz lots. The terms of the lease agreements were
identical except as to the price: the lease would be good for 25
years subject to an annual escalation of 7.5%; PGHFI had the
right to sublease the lots; and the monthly lease was
P102,760.00 for the Pasay lot and P92,437.20 for the Sta. Cruz
lot. Within the same month, the Pasay lot was subleased by
PGHFI, through Marcos to Transnational Construction Corporation
(TNCC) 3 for P734,000.00 a month, while the Sta. Cruz lot was
allegedly 4 subleased to Joy Mart Consolidated Corporation (Joy
Mart) 5 for P199,710.00 per month.
Because of these deeds, petitioners were charged on January 14,
1992, with a violation of Republic Act No. 3019 (the Anti-Graft
and Corrupt Practices Act), to wit:
Criminal Case No. 17449
The undersigned Special Prosecution Officer
I, Office of the Special Prosecutor, hereby
accuses IMELDA R. MARCOS and JOSE P.
DANS, JR. of Violation of Section 3(g) of RA
3019, as amended, committed as follows:

That on or about September 8, 1982, and for


sometime prior or subsequent thereto, in
Manila, Philippines, and within the
jurisdiction of this Honorable Court, the
accused IMELDA R. MARCOS and JOSE P.
DANS, JR., public officers, being then the
Chairman and Vice-Chairman, respectively,
of the Light Rail Transit Authority (LRTA), a
government corporate entity created under
Executive Order No. 603 of the former
President Ferdinand E. Marcos, while in the
performance of their official functions,
taking advantage of their positions and
committing the crime in relation to their
offices, did then and there wilfully,
unlawfully and criminally conspiring with one
another, enter on behalf of the aforesaid
government corporation into an agreement
for the development of the areas adjacent to
the LRTA stations and the management and
operation of the concession areas therein,
with the Philippine General Hospital
Foundation, Inc. (PGHFI), a private
enterprise, under terms and conditions
manifestly and grossly disadvantageous to
the government.

The undersigned Special Prosecution Officer


I, Office of the Special Prosecutor, hereby
accuses IMELDA R. MARCOS of Violation of
Section 3(d) of RA 3019, as amended,
committed as follows:

CONTRARY TO LAW.

That on or about June 8, 1984, and for


sometime prior or subsequent thereto, in
Makati, Metro Manila, Philippines, and within
the jurisdiction of this Honorable Court, the
accused IMELDA R. MARCOS, a public officer,
being then the Chairman of the Light Rail
Transit Authority (LRTA), a government
corporate entity created under Executive
Order No. 603 of the former President
Ferdinand E. Marcos, while in the
performance of her official functions, taking
advantage of her position and committing
the offense in relation to her office, did then
and there wilfully, unlawfully and criminally
accepted employment and/or acted as
Chairman of (the) Philippine General
Hospital Foundation, Inc. (PGHFI), a private
corporation duly organized under the laws of
the Philippines, which private enterprise
had, at that time(,) pending business
transactions with the accused, in her
capacity as Chairman of LRTA.

Criminal Case No. 17450

CONTRARY TO LAW.

The undersigned Special Prosecution Officer


I, Office of the Special Prosecutor, hereby
accuses IMELDA R. MARCOS and JOSE P.
DANS, JR. of Violation of Section 3(g) of RA
3019, as amended, committed as follows:

Criminal Case No. 17452

That on or about June 8, 1984, and for


sometime prior or subsequent thereto, in
Makati, Metro Manila, Philippines, and within
the jurisdiction of this Honorable Court, the
accused IMELDA R. MARCOS and JOSE P.
DANS, JR., public officers, being then the
Chairman and Vice-Chairman, respectively,
of the Light Rail Transit Authority (LRTA), a
government corporate entity created under
Executive Order No. 603 of the former
President Ferdinand E. Marcos, while in the
performance of their official functions,
taking advantage of their positions and
committing the crime in relation to their
offices, did then and there wilfully,
unlawfully and criminally conspiring with one
another, enter on behalf of the aforesaid
government corporation into a Lease
Agreement covering LRTA property located
in Pasay City, with the Philippine General
Hospital Foundation, Inc. (PGHFI), a private
enterprise, under terms and conditions
manifestly and grossly disadvantageous to
the government.

The undersigned Special Prosecution Officer


I, Office of the Special Prosecutor, hereby
accuses JOSE P. DANS, JR. of Violation of
Section 3(d) of RA 3019, as amended,
committed as follows:
That on or about June 8, 1984, and for
sometime prior or subsequent thereto, in
Makati, Metro Manila, Philippines, and within
the jurisdiction of this Honorable Court, the
accused JOSE P. DANS, JR., a public officer,
being then the Vice-Chairman of the Light
Rail Transit Authority (LRTA), a government
corporate entity created under Executive
Order No. 603 of the former President
Ferdinand E. Marcos, while in the
performance of his official functions, taking
advantage of his position and committing
the offense in relation to his office, did then
and there wilfully, unlawfully and criminally
accepted employment and/or acted as
Director of (the) Philippine General Hospital
Foundation, Inc. (PGHFI), a private
corporation duly organized under the laws of
the Philippines, which private enterprise
had, at that time(,) pending business
transactions with the accused, in his
capacity as Vice-Chairman of LRTA.

CONTRARY TO LAW.

CONTRARY TO LAW.

Criminal Case No. 17451

Criminal Case No. 17453

The undersigned Special Prosecution Officer,


Office of the Special Prosecutor, hereby
accuses IMELDA R. MARCOS and JOSE P.
DANS, JR. of Violation of Section 3(g) of RA
3019, as amended, committed as follows:
That on or about June 18, 1984, and for
sometime prior or subsequent thereto, in
Makati, Metro Manila, Philippines, and within
the jurisdiction of this Honorable Court, the
accused IMELDA R. MARCOS and JOSE P.
DANS, JR., public officers, being then the
Chairman and Vice-Chairman, respectively,
of the Light Rail Transit Authority (LRTA), a
government corporate entity created under
Executive Order No. 603 of the former
President Ferdinand E. Marcos, while in the
performance of their official functions,
taking advantage of their positions and
committing the crime in relation to their
offices, did then and there wilfully,
unlawfully and criminally conspiring with one
another, enter on behalf of the aforesaid
government corporation into a Lease
Agreement covering LRTA property located
in Sta. Cruz, Manila, with the Philippine
General Hospital Foundation, Inc. (PGHFI), a
private enterprise, under terms and
conditions manifestly and grossly
disadvantageous to the government.
CONTRARY TO LAW.
In short, Marcos and Dans were separately charged under
Criminal Case Nos. 17451 and 17452 for accepting employment
in and/or acting as Chairman and Director, respectively, of the
PGHFI while the latter had pending business (the lease
agreements) with the LRTA, which they both also headed. With
regard to the other cases, Criminal Case Nos. 17449, 17450 and
17453, the accusations against both of them stemmed from the
contracts they signed in representation of the LRTA and of the
PGHFI which were allegedly entered into "under terms and
conditions manifestly and grossly disadvantageous to the
government."
When arraigned, petitioners pleaded "not guilty" to all of the
charges. Before trial could commence, Dans moved for the
advance examination of defense witness Ramon F. Cuervo, Jr., a
real estate broker, appraiser and friend of Dans who, as an
expert witness, was in a position to inform court that the agreed
lease prices stated in the subject agreements were fair based on
standard industry valuation standards. The court a quo granted
said motion, and Cuervo was allowed to testify on August 12, 13,
and 19, 1992. During this time, Marcos never questioned Cuervo
and later expressed that she had no desire to further examine
him. 6 Five days after the final hearing of Cuervo's testimony, the
trial of the five cases opened with the formal offer of the
prosecution's documentary evidence, which included, inter alia,
the five agreements mentioned earlier. On November 23, 1992,
the court issued an order admitting all the exhibits except
Exhibits "D" and "E" as to Dans, who challenged the two
sublease agreements, and Exhibit "E-1" as to Marcos, who, while
accepting the validity of said sublease agreements, nevertheless
questioned the authenticity of her signature thereon.
In Criminal Case No. 17543, Dans filed a Motion to Dismiss
(demurrer to evidence) dated December 7, 1992, but the court

denied the same, as well as his motion for reconsideration


thereof.
By the time the case was submitted for decision, Marcos had
neither submitted a formal offer of evidence, despite notice of
the court's orders 7 to do so, nor the required memorandum. She
did file a motion for inhibition of the justices of the
Sandiganbayan's First Division on the ground of pre-judgment of
her case based on the court's denial of Dans' demurrer to
evidence, but this was denied in the court's resolution of May 20,
1993.
On September 24, 1993, the court a quo rendered
judgment, 8 acquitting petitioners in Criminal Case Nos. 17449,
17451, and 17452, but convicting them in Criminal Case Nos.
17450 and 17453. The decretal portion of the assailed decision is
reproduced hereunder:
WHEREFORE, judgment is now rendered.
1. ACQUITTING the accused IMELDA R.
MARCOS and the accused JOSE P. DANS, JR.
of the charge in Criminal Case No. 17449,
there being no manifest and gross
disadvantage brought about by the contract
dated September 8, 1982.
2. ACQUITTING accused IMELDA R. MARCOS
in Criminal Case No. 17451, it not having
been demonstrated that the Information
charging her had given her adequate notice
of the acts for which she could be held liable
under the law;
3. ACQUITTING accused JOSE P. DANS, JR. in
Criminal Case No. 17452, it not having been
demonstrated that the Information charging
him had given him adequate notice of the
acts for which he could be held liable under
the law;
and considering that the charges against
them have been proved beyond reasonable
doubt.
4. CONVICTING accused IMELDA R. MARCOS
and JOSE P. DANS, JR. in Criminal Case No.
17450 under Sec. 3(g) of R.A. No. 3019,
otherwise known as the Anti-Graft and
Corrupt Practices Act, and hereby imposes
upon each accused the penalty of
imprisonment for an indeterminate period of
nine (9) years and one (1) day as minimum
to twelve (12) years and ten (10) days as
maximum.
Both accused shall also suffer the additional
penalty of perpetual disqualification from
public office as provided in Sec. 9 of R.A. No.
3019;
5. CONVICTING accused IMELDA R. MARCOS
and JOSE P. DANS, JR. in Criminal Case No.
17453 under Sec. 3(g) of R.A. No. 3019,
otherwise known as the Anti-Graft and
Corrupt Practices Act, and hereby imposes
upon each accused the penalty of
imprisonment for the indeterminate period

of nine (9) years and one (1) day as


minimum to twelve (12) years and ten (10)
days as maximum.
Both accused shall also suffer the additional
penalty of perpetual disqualification from
public office as provided in Sec. 9 of R.A. No.
3019.
The Ombudsman is given thirty (30) days
from today within which to make a
determination of whether or not the other
members of the Board of Directors of the
Light Rail Transit Authority during the
relevant periods with respect to the lease
contracts dated June 8, 1984 and June 18,
1984 executed by said Authority with the
Philippine General Hospital Foundation, Inc.
may also be prosecuted under Sec. 3(g) of
R.A. No 3019, and to report to this Court at
the end of said period whatever
determination he has made including the
steps intended to be taken hereon towards a
new preliminary investigation, if the same is
appropriate.
The bonds posted for the provisional liberty
of accused IMELDA R. MARCOS and accused
JOSE P. DANS, JR. in Criminal Case No.
17449, No. 17451 and No. 17452 are hereby
CANCELLED.
SO ORDERED.
Petitioners filed their respective motions for reconsideration of
the court's decision on October 8, 1993. The Office of the
Solicitor General also filed a motion for partial reconsideration on
the same date, seeking civil indemnity for the People of the
Philippines. On November 13, 1996, respondent court
promulgated two resolutions, one denying the motion of
Dans, 9 and another denying that of Marcos and modifying the
assailed September 24, 1993, decision with the addition of a
sixth paragraph in the dispositive portion which dealt with the
civil liability of petitioners, viz.: 10
6. Accused IMELDA R. MARCOS and JOSE P.
DANS, JR. are hereby ordered jointly and
solidarily to reimburse the Light Railway
Transit Authority for the prejudice that they
have accused to said Light Railway Transit
Authority through the lease contracts which
they executed.
(a) Under Criminal Case No. 17450, the sum
of THIRTY TWO MILLION ONE HUNDRED
SEVENTY TWO THOUSAND PESOS
(P32,172,000.00);
(b) Under Criminal Case No. 17453, the sum
of NINETY TWO MILLION TWO HUNDRED
SIXTY EIGHT THOUSAND EIGHT HUNDRED
FORTY PESOS (P92,268840.00).
Aggrieved, petitioners separately elevated their case to this
Court for a review on the following grounds:
G.R. No. 127073

I. Respondent Court erred in denying


petitioner's demurrer to evidence in Criminal
Case No. 17453 on the basis of baseless
assumptions and conjectures not
established by evidence. Worse, in violation
of mandatory rules of evidence, the denial of
the demurrer was made to rest on the
advance, conditional testimony of defense
witness Ramon Cuervo which had not yet
been offered in evidence.
II. Respondent Court erred in concluding that
the two lease contracts in question were
manifestly and grossly disadvantageous to
the government despite unrebutted
evidence that their terms and conditions
were fair and reasonable and did not
prejudice the Government.
III. Respondent Court erred when it assumed
without evidentiary basis that LRTA had put
up or would put up buildings on the leased
land.
IV. Respondent Court erred in holding that
the lease contracts were also grossly
disadvantageous to the Government
because "non-payment of rentals . . . was
not actionable unless the rentals were in
arrears for one year", citing the stipulation.
"Should there be a delay in any payment of
the rental consideration equivalent to one
year, the lessor shall have the right to take
possession of the premises, the property
and improvements thereon, the ownership
of all improvements thereby accruing to the
lessor. (Stip. II, par. 4).
V. Assuming without admitting that LRTA
would receive less than fair rental under the
disputed lease contracts, respondent Court
erred when it considered injury to LRTA as
necessarily an injury to the Government,
notwithstanding that such supposed injury
to LRTA was offset by the corresponding
benefit enuring to the Philippine General
Hospital (a government hospital funded by
government funds), which is inconsistent
with the theory that the disputed lease
contracts were disadvantageous to "the
Government." Under Sec. 3(g) of R.A. No.
3019 which seeks to protect public interest
in general by condemning contracts
disadvantageous to the Government, the
term "government" is used in its widest
sense so as to include "the national
government, the government-owned and
government-controlled corporations, and all
other instrumentalities or agencies of the
Republic of the Philippines and their
branches." [Sec. 2(a)].
VI. While respondent Court was duty-bound
to be just and impartial, it failed to give
petitioner a fair trial, who was thereby
denied due process of law. Respondent
Court was plainly biased against, if not

downright hostile to, petitioner; it unfairly


allied itself with the prosecution, which
made it prosecutor and judge at the same
time.
VII. Aside from the foregoing, the appealed
decision is flawed by fatal infirmities which
have effectively denied petitioner due
process of law.
G.R. No. 126995
A. The questioned Decision is a nullity
because Section 3 (g) of the Anti-Graft and
Corrupt Practices Act (RA 3019, as
amended) is unconstitutional for being, on
its face, void for vagueness.
B. The questioned Decision is a nullity
because Section 3 (g) of the Anti-Graft and
Corrupt Practices Act (RA 3019, as
amended) is unconstitutional for being a
"rider."
C. The questioned Decision is a nullity
because the Informations in SB Criminal
Cases Nos. 17450 and 17453 did not state
all the essential facts constituting the
offense but instead stated conclusions of
law, thereby denying the Petitioner her
constitutional right to be informed of "the
nature and the cause of the accusation"
against her (Sec. 14 (2), Bill of Rights).
D. The questioned Decision is a nullity
because the Information in said SB Criminal
Cases Nos. 17450 and 17453 charged only
two of the total number of members in the
Board of Directors of the LRTA and the Board
of Directors of the PGH Foundation, who had
participated in the collective acts, thereby
singling Petitioner and her companion for
discriminatory prosecution, in violation of
her right to Equal protection of the Laws,
which violation existed from the filing of the
information and cannot be cured by
post hoc proceedings.
E. The questioned Decision is a nullity
because of the participation therein of Mr.
Justice Garchitorena, whose long-standing
bias and hostility towards President Marcos
and Petitioner Imelda R. Marcos prevented
him from having the requisite "cold
neutrality of an impartial judge," violation of
her right as an accused person to procedural
Due Process of Law.
F. The questioned Decision is a nullity
because Petitioner was denied of her
Constitutional Right to counsel.
1. Facts of record
showing that Petitioner
was deprived of and
denied her Right to
Counsel.

2. Under the
circumstances of record,
the absence of counsel
resulting from
imposition of
suspension from the
practice of law upon her
retained counsel,
constituted deprivation
of or denial of the Right
to Counsel.
3. Facts of record
showing legal
representation of
Petitioner Imelda
Marcos was not
adequate.
G. The questioned Decision is premature and
had disregarded the constitutional right of
the Petitioner to present evidence in her
behalf. Her right to testify in her own behalf
is a guaranteed right, the exercise of which
is her personal choice alone, and which
counsel had no authority to waive in her
behalf. Besides, counsel being suspended,
he could not have made a waiver. This
constitutional right "to be heard by himself
and counsel" she is invoking now, as part of
her right to due process (Sec. 14 (1) and (2),
Bill of Rights).
H. The questioned Decision is a nullity for it
was rendered in derogation of Petitioner's
subsisting right to be heard and to submit
evidence in her defense. The finding of
waiver is a prejudicial error. The evidence
thereof on the record is tenuous. A waiver by
an accused person of the right to be heard
in her defense, including her right to testify
in her own behalf must be indubitable, and
is valid only if personally exercised through
her own manifestation in open court.
I. The questioned Decision is a nullity
because the crime charged was not proven
beyond a reasonable doubt, and the
presumption of innocence was not
overcome, which is required by Due Process.
1. There was no disadvantage to the
Government.
i. PGH Foundation is
part of the
"Government".
ii. There was no
disadvantage to the
"Government" because
the PGH, which is part
of the Government
benefitted.
iii. Facts of record,
especially the

questioned leases, show


no disadvantage.
iv. Conviction was based
on pure speculation.
v. Respondent
Sandiganbayan (First
Division) erred in
holding the leases
disadvantageous as to
rental in absence of
evidence existing at the
time that higher rentals
should have been paid.
vi. Respondent
Sandiganbayan erred in
holding that rentals for
sub-leases were
evidence of
disadvantage when
such sub-leases were
made later and
negotiated by a
charitable foundation
deserving of support
through higher rentals.
2. Assuming arguendo alleged
disadvantage, the same was not manifest
nor gross.
3. Petitioner Marcos did not enter into the
questioned lease contracts on behalf of the
Government.
4. The charge of conspiracy was not proved
hence no basis for liability.
5. Conviction was based on weakness of
defense evidence and not (on) strength of
prosecution's evidence.
J. The questioned Decision and Resolution
are null and void because the Respondent
Sandiganbayan (First Division) acted without
jurisdiction in issuing the questioned
Decision and Resolution since the records
clearly show that the Court with jurisdiction
over these cases is the Special Division of
Five Justices created by Admin. Order 288-93
pursuant to Sec. 5 of PD 1606 as amended
and not Respondent Sandiganbayan (First
Division).
The Court resolved to consolidate the two cases inasmuch as
they raise similar issues and seek the same reliefs. The
questions may be stated thus:
1) Was respondent court correct in denying the demurrer to
evidence of petitioner Dans in Criminal Case No.17453?
After the prosecution had rested its case, Dans filed a Motion to
Dismiss (Demurrer to Evidence) dated December 7, 1992, based
on Section 15, Rule 119 of the Rules of Court. 11 He argued that
the prosecution failed to establish the fact that the lease
agreement covering the Sta. Cruz lot (Exhibit "C") was manifestly
and grossly disadvantageous to the government. 12

On February 10, 1993, the court a quo denied the said motion in
this wise:
Since per testimony of witness Ramon
Cuervo, Jr. (tsn, pp. 20 to 26, August 13,
1992) that considering the nature of the
terminal at the Sta. Cruz Station, which
would be (the) subject of the lease contract
between the Light Rail Transit Authority and
the PGH Foundation, Inc. (Exhibit "C"), the
rental of the premises in question could go
up to P400,000.00 per month if the LRTA
would put up the building as against the
stipulated rental of P92,437.00 actually
entered into between the parties, there
would appear cause to believe that the lease
contract in question was grossly
disadvantageous for (sic) the government.
For this reason, the Demurrer to Evidence of
accused Jose P. Dans, Jr. dated December 7,
1992, is DENIED for lack of merit.
Dans questioned the denial on the ground that the demurrer
should have been resolved solely on the basis of the
prosecution's evidence and even assuming that it could be
resolved using the evidence for the defense, the latter must
have been previously formally offered. 13
These arguments are specious and must, therefore, be rejected.
Although a demurrer to evidence must be resolved based on the
evidence of the prosecution, there is nothing in the rules which
would bar the court from taking cognizance of any matter taken
up during the trial or which has become part of the records of the
case, especially in this instance where the disputed evidence
was taken in advance at the request of the defendant himself .
Additionally it is erroneous to suppose that Cuervo's testimony
was not formally offered at the time because "(t)estimonial
evidence is formally offered by the calling of the witness to the
stand." 14 Thus, we find merit in the manner by which the trial
court justified the denial of Dans' demurrer to evidence,15 viz.:
First, the advance testimony of Mr. Cuervo
taken at the instance of Engr. Dans on
August 12 and 13, 1992, was already part of
the record(s) in these cases when the
Demurrer to Evidence was filed by Engr.
Dans on December 7, 1992. The testimony
was introduced into the record in exactly the
same manner as any other testimony would
be presented in evidence during trial. . . . .
Being already part of the record in these
cases, the advance testimony of Mr. Cuervo
could be taken judicial notice of.
xxx xxx xxx
. . . . (J)udicial notice takes the place of proof
and is of equal force. As a means of
establishing facts it is therefore superior to
evidence. In its appropriate field it displaces
evidence since, as it stands for proof, it
fulfills the objects which the evidence is
designed to fulfill and makes evidence
unnecessary.16 Consequently, "the party
desiring to establish a fact is relieved, when

judicial notice is taken of the fact, from


introducing evidence to prove it." 17
Second, having been given in the course of
the proceedings in these cases, the
testimony of Mr. Cuervo constitutes judicial
admission of Engr. Dans who made it part of
the record of these cases.
xxx xxx xxx
As in judicial notice of a fact, "admissions
made in the course of the judicial
proceedings are substitutes for, and
dispense with, the actual proof of
facts." 18 The party benefited by the
admission is relieved of the duty of
presenting evidence of the admitted fact
and "(t)he court, for the proper decision of
the case, may and should consider, without
the introduction of evidence, the fact
admitted by the parties." 19
Third, since the advance testimony of Mr.
Cuervo was given in open court and duly
recorded, the Court could not just ignore the
solemn declarations therein on the
technicality that the testimony had not been
formally offered evidence. . . .
In any event, even if the testimony of Cuervo were to be
excluded, there was enough evidence proffered by the
prosecution, particularly Exhibits "B" (the lease agreement in
favor of the PGHFI) and "D" (the sublease agreement in favor of
TNCC) which would have more than justified the denial of the
demurrer. In other words, notwithstanding Cuervo's testimony,
these exhibits constitute solid documentary proof of petitioners'
liability under Section 3(g) of R.A. No. 3019, as amended, as will
be shown later in our discussion of Issue No. 5, "Was the
evidence properly appreciated by respondent court?"
2) Were the informations filed in Criminal Case Nos. 17450 and
17453 sufficient in form?
There appears to be no doubt that the questioned informations
are reasonably adequate as to apprise Marcos on the nature and
cause of the accusations against her. In the case of Luciano
v. Estrella, 20 the Court had occasion to enumerate the elements
of the crime under Section 3(g), R.A. No. 3019, namely, (1) that
the accused is a public officer; (2) that he entered into a contract
or transaction on behalf of the government; and (3) that such
contract or transaction is grossly and manifestly
disadvantageous to the government. The allegations in the two
informations are hereby reproduced for quick reference:
That on or about June 8 [18], 1984, and for
sometime prior or subsequent thereto, in
Makati, Metro Manila, Philippines, and within
the jurisdiction of this Honorable Court, the
accused IMELDA R. MARCOS and JOSE P.
DANS, JR., public officers, being then the
Chairman and Vice-Chairman, respectively,
of the Light Rail Transit Authority (LRTA), a
government corporate entity created under
Executive Order No. 603 of the former
President Ferdinand E. Marcos, while in the
performance of their official functions,
taking advantage of their positions and

committing the crime in relation to their


offices, did then and there wilfully,
unlawfully and criminally conspiring with one
another, enter on behalf of the aforesaid
government corporation into a Lease
Agreement covering LRTA property located
in Pasay City [Sta. Cruz, Manila], with the
Philippine General Hospital Foundation, Inc.
(PGHFI), a private enterprise, under terms
and conditions manifestly and grossly
disadvantageous to the
government. 21 (Emphasis supplied).
As can be readily observed, the informations meet the minimum
requirements for them to be upheld in court.
It is also alleged that "for a criminal complaint or information to
sufficiency inform the accused of the nature and cause of the
accusation against him, all the essential facts constituting the
offense must be stated therein, and not mere conclusions of
law. 22
Assuming that the matters which Marcos wanted to see alleged
in the informations are not evidentiary in character, and that
they are really vague and ambiguous, other courses of action
could have been taken, such as filing a motion for a bill of
particulars. This is what the Court precisely suggested in People
v. Arlegui, 23 viz.:
A bill of particulars while provided for under
Section 6 of Rule 116 is not a popular
procedure among lawyers for the accused in
criminal cases. For one thing, it may invite
an amended information which is not only
clearer but may also be stronger and more
incriminating. However, it would have
clarified and corrected at any early stage
the kind of doubt which the accused in this
particular case alleged to have entertained.
Section 6 of Rule 116 provides:
Sec. 6. Bill of Particulars. Defendant may,
at any time on or before arraignment, mover
for or demand a more definite statement or
a bill of particulars of any matter which is
not averred with sufficient definiteness or
particularity to enable him properly to plead
or prepare for trial. The motion shall point
out the defects complained of and the
details desired. 24
The more appropriate procedure under the
circumstances would have been an order
from the court directing the Fiscal to amend
the information because the defect, if there
aver was one, was curable by the simplest
of amendments or clarifications. (Emphasis
supplied)
In fact, the records reveal that Marcos did file such a
motion. 25 After the prosecution had filed its answer
thereto, she was given an opportunity to file a reply,
but she did not, thereby indicating that she was
satisfied with what was already stated in the answer.
3) Is Section 3(g), R.A. No. 3019, as amended, constitutional?

The validity of this provision is being assailed by petitioner


Marcos on grounds of vagueness and superfluity. She claims that
the phrase "manifestly and grossly disadvantageous to the
government" is vague for it does not set a definite standard by
which the court will be guided, thus, leaving it open to human
subjectivity.
There is, however, nothing "vague" about the statute. The
assailed provision answers the basic query "What is the
violation?" Anything beyond this, the "how's" and the "why's,"
are evidentiary matters which the law itself cannot possibly
disclose in view of the uniqueness of every case. The
"disadvantage" in this instance is something that still has to be
addressed by the State's evidence as the trial progresses. It may
be said that the law is intended to be flexible in order to allows
the judge a certain latitude in determining if the disadvantage to
the government occasioned by the act of a public officer in
entering into a particular contract is, indeed, gross and manifest.
The personal circumstances of an accused are, in this regard,
also immaterial, because of the nature of the statute. As the
Court declared in Luciano. 26
. . . In other words, the act treated
thereunder partakes of the nature of
a malum prohibitum; it is the commission of
that act as defined by the law, not the
character or effect thereof, that determines
whether or not the provision has been
violated. And this construction would be in
consonance with the announced purpose for
which Republic Act (No.) 3019 was enacted,
which is the repression of certain acts of
public officers and private persons
constituting graft or corrupt practices or
which may lead thereto. Note that the law
does not merely contemplate repression of
acts that are unlawful or corruptper se, but
even of those that may lead to or result in
graft and corruption. Thus, to require for
conviction under the Anti-Graft and Corrupt
Practices Act that the validity of the contract
or transaction be first proved would be to
enervate, if not defeat, the intention of the
Act.
We, therefore, affirm the constitutionality of Section 3(g) of R.A
No. 3019, as amended.
4) Was petitioner deprived of her constitutional right to be heard
by herself or counsel?
Marcos claims that she was not adequately represented by
counsel at the trial due to the suspension from the practice of
law of her counsel of record, Atty. Antonio Coronel. It appears
from the records, however, that during the absence of Atty.
Coronel and sometime thereafter, she was still represented by
other lawyers, including Renato Dilag, Luis Sillano, Perfecto V.
Fernandez, Jose and Cristobal Fernandez, Vicente D. Millora, Juan
T. David, Balbino Diego, and the law firm of Manuel M. Lazaro
and Associates. The representation of Atty. Millora and the
Fernandezes subsisted even in this Court, where they were later
substituted by Atty. Estelito Mendoza. In any event, at the time
Atty. Coronel and his replacements withdrew their respective
appearances, all evidence had already been presented. It is just
that Marcos opted not to present any evidence for her defense,
relying perhaps, on what she perceived to be glaringly weak

prosecution evidence. Or it is not impossible or far-fetched that


her refusal may have been due to her indifference to or open
defiance of the justice system.
5) Was the evidence properly appreciated by respondent court?
In proclaiming his innocence, Dans relied only on his and
Cuervo's testimony. Marcos, on the other hand, presented no
evidence at all, claiming that she had been prejudged by
respondent court. The prosecution submitted documentary
evidence and nothing else. The question that must first be
answered, thereto, is: Was the State's evidence sufficient to
prove beyond a shadow of a doubt that the accused, petitioners
herein, committed the crimes for which they were held
accountable?
Petitioners were charged with and found guilty of violating
Section 3(g) of R.A. No. 3019, as amended. It states thus:
Sec. 3. Corrupt practices of public officers.
In addition to acts or omissions of public
officers already penalized by existing law,
the following shall constitute corrupt
practices of any public officer and are
hereby declared to be unlawful:
xxx xxx xxx
(g) Entering, on behalf of the Government,
into any contract or transaction manifestly
and grossly disadvantageous to the same,
whether or not the public officer profited or
will profit thereby.
It is clear that for liability to attach under the aforequoted
provision, the public officer concerned must have entered into a
contract which is "manifestly and grossly disadvantageous" to
the Government. The court a quophrased the focal issue in these
petitions in this wise: "(A)re exhibits 'A,' 'B' and 'C', the Lease
Agreements executed by the LRTA with the PGH Foundation over
the LRT property at the stations in Pasay City and Sta. Cruz
(Manila) 'manifestly and grossly disadvantageous to the
government'?"
A perusal of the prosecution's documentary evidence would
readily reveal, even from a layman's perspective, that the
Government was seriously prejudiced in the transactions under
review.
We concur with the observation of the court a quo that, by itself,
Exhibit "A," the "mother contract" which initially granted the
PGHFI a virtual exclusive license or franchise over the subject
properties, "would neither be prejudicial (n)or beneficial to
anybody," because it did not refer to any specific property or
consideration. Hence, petitioners were correctly acquitted in
Criminal Case No. 17449, which was based on this agreement.
With regard to Criminal Case Nos. 17450 and 17453, the Court is
likewise constrained to agree with the trial court that the
Government suffered a manifest and gross disadvantage with
the execution of the two lease agreements, Exhibits "B" and "C."
The facts in this regard are undisputed.
The monthly rental price agreed upon between the LRTA and the
PGHFI for the lease of the Pasay lot was P102,760.00, and for the
Sta. Cruz lot, it was P92,437.20. Barely ten days later, the very
same properties were subleased by PGHFI to private entities for
P734,000.00 (for the Pasay lot) and P199,710.00 (for the Sta.
Cruz lot). The difference in the lease price is too enormous to

ignore, for no market force could possibly have raised the rental
cost in the same site by that margin in just over a week. Even by
conservative estimates, the properties could have originally been
leased out for at least P500,000.00 27 more. The Government
was thereby deprived of at least an additional half a million
pesos per month.
Indubitably, there was some kind of conflict of interest in the
premises. Marcos and Dans, who were then Cabinet members,
occupied the highest positions in the Boards of the LRTA and the
PGHFI in a concurrent capacity at the time the questioned deals
were made. They were, as it were, playing both ends; but on
paper, one was acting for the lessor and the other for the lessee.
The fact that petitioners were cleared of the charge that they
acted improperly in accepting seats in the PGHFI Board of
Trustees at the time when it had pending business transactions
with the LRTA, of which they were also officers is of no moment.
First, their acquittal in Criminal Case No. 17451 and No. 17452
was simply due to the insufficiency of informations. Second, the
accusation in said informations have no bearing whatsoever on
the subject matter of the other cases filed against them as
signatories to the assailed lease agreements. Even Justice
Garchitorena had occasion to advert to this conflict of interest in
his resolution of November 13, 1996. 28
The focus now shifts to the testimony of defense witness Ramon
Cuervo. An examination of the pleadings filed in these petitions,
including all their attachments, would demonstrate the confusion
sown by Cuervo's expert opinion. Petitioners insist that Cuervo
confirmed their allegation that the lease price stated in the
questioned agreements was a fair valuation based on the
comparative rental costs in the immediate vicinity of the subject
properties. This inference was drawn from Cuervo's calculation of
the fair monthly rental value of the Pasay lot at P73,400.00 29and
the Sta. Cruz lot at P80,825.64, 30 using standard appraisal
techniques in the industry.
The court, on the other hand, interpreted his testimony
differently and arrived at a much higher valuation, that is,
P210,000.00 a month for the Pasay lot and P400,000.00 monthly
for the Sta. Cruz lot.
In view of this conflict in opinion, with petitioners and respondent
court holding steadfast to their respective interpretations of
Cuervo's testimony, this Court has no alternative but to fall back
on the documentary evidence.
Dans, in his motion to dismiss dated December 7, 1992, actually
made an implied recognition that the prosecution was able to
establish the manifest and gross disadvantage to the
government brought about by the lease agreement over the
Pasay lot (Exhibit "B"), when he raised no objection to the
presentation by the prosecution of the sublease agreement
between the PGHFI and TNCC over the same property (Exhibit
"D"). Just as he read the lease and sublease agreements over the
Sta. Cruz lot (Exhibits "C" and "E") together in order to
demonstrate to the court that the prosecution's evidence in
Criminal Case No. 17453 was weak, Exhibit "B" must also be
appreciated in connection with Exhibit "D" so that the "gross and
manifest" disadvantage to the government in Criminal Case No.
17450 can be established.
It must be noted that Dans objected vigorously to Exhibit "E" on
the ground that it was a mere photocopy of the original. Despite
diligent efforts to locate an original duplicate or an authentic
copy, the prosecution could not produce one, so that as to Dans,
said exhibit was not admitted. The same cannot be said of

Marcos who never challenged the authenticity of Exhibit "E,"


although she contested the validity of her signature thereon as
representative of the PGHFI, the lessor
For a better appreciation of the evidence at hand, the lease
agreements (Exhibits "B" and "C") must be read simultaneously
with the sublease agreements (Exhibits "D" and "E"). While Dans
signed the lease agreements in behalf of the LRTA, he apparently
had no hand in the ensuing sublease of the properties, as
indicated by the absence of his signature from the two
subsequent agreements. Marcos, on the other hand, represented
the PGHFI twice, first in the lease contract and later in the
sublease agreements. Within the very brief period of time that
separated the lease and the sublease of the LRTA's prime lots,
Marcos inevitably generated a situation where the LRTA, a
government corporation, 31 lost out to the, PGHFI, a private
enterprise 32 headed by Marcos herself.
But, considering that there is an allegation of conspiracy in the
informations, the sufficiency of which we have earlier upheld,
should the liability of Dans be the same as that of Marcos?
The court a quo entertained no doubt that the prosecution's
evidence amply established a conspiracy between Dans and
Marcos, thus:
. . . (T)he avowed purpose of both accused
in entering into the Lease Agreements was
not to earn additional income for the use of
the LRTA in its operations, but to give
financial assistance to the PGHF in the
pursuit of its charitable objectives.
xxx xxx xxx
This expressly admitted purpose explains
why the rentals stipulated in the Lease
Agreements were so low that when
compared with the rentals provided in the
Sub-Lease Agreements, the latter
deceivingly appear, to borrow the words of
Mr. Cuervo, to be "extra-ordinarily high." To
have fixed much higher rentals would have
been to reduce the income which both the
accused would like the PGHF to earn from
the lease contracts. And the rentals in the
Lease Agreements all the more became very
low in light of the fact that the Agreement
for the development of
the areas adjacent to the LRT stations was
without any valuable consideration. 33
xxx xxx xxx
In these cases, Engr. Dans and Mrs. Marcos
had a common objective, namely, to lease in
favor of the PGHF the Pasay City and Sta.
Cruz properties under such terms and
conditions so favorable to the PGHF as to
result in manifest and gross disadvantage to
the LRTA. This common purpose they
pursued together and in concert with each
other, being in the position to do so because
they were both ranking officials of the LRTA
and the PGHF.
Thus, on September 8, 1982, avowedly
desirous to extend financial support to the

PGHF (not to the PGH), Engr. Dans,


representing the LRTA, and Mrs. Marcos, as
chairman of the PGHF, executed an
agreement wherein without any valuable
consideration, the latter was granted
(exclusive) authority to develop areas
adjacent to the LRT stations and to operate
commercial concessions therein.
In furtherance of their common design and
pursuant to their intention to financially
benefit the PGHF, Engr. Dans and Mrs.
Marcos, acting in their said representative
capacities, entered into a Lease Agreement
on June 8, 1984, over the Pasay City area for
P102,760.00 a month and another Lease
Agreement ten days later over the Sta. Cruz
Area for P92,437.20 per month. As already
demonstrated, the monthly rentals and
other stipulations in both contracts placed
the LRTA in a manifestly and grossly
disadvantageous position.
Engr. Dans and Mrs. Marcos were, therefore,
both co-conspirators for having acted in
conspiracy with each other and co-principals
by direct participation for having taken
direct part in the execution of the acts
charged. Engr. Dans could not have
committed the offenses without Mrs. Marcos
and vice-versa.34
While these observations cannot be said to be flawed, they were
made only after the trial, in fact, after the assailed decision was
promulgated, and these conclusions are the court's alone. The
prosecution never attempted to establish a connection between
the two defendants in committing the acts for which they were
charged. It is a fundamental rule, however, that a charge of
conspiracy must be proven just like any other criminal
accusation, that is, "independently and beyond reasonable
doubt." 35 In this regard, therefore, this Court's opinion that the
alleged conspiracy between the petitioners was not sufficiency
established by the State's evidence.
6) Were the members of the Sandiganbayan's First Division
biased against petitioners? Consequently, is the assailed
decision dated September 24, 1993, valid?
Petitioners consider erroneous the active participation of the
members of the Sandiganbayan's First Division during the
hearing of Cuervo's testimony. The records reveal that, indeed,
the court a quo may have participated more actively than usual
in the examination of Cuervo in order to elicit from him the
information that would nail down the prosecution's basic theory,
thus rendering unassailable the conclusions which are now being
impugned by petitioners who argue that the extensive
questioning of Cuervo 36 made the Sandiganbayan, particularly
Justice Garchitorena, not only a judge, but a prosecutor as well.
To be sure, instead of being satisfied with Cuervo's testimonial
affirmation of what it had all along considered to be the fair
rental value of the properties, the court a quo relied on his
responses to numerous postulated queries thereby concluding
there was a "gross disparity" in the lease price, as agreed upon
by the parties, and the projected rental price, as estimated by
Cuervo. Indeed, if the trial court's conclusions were to be
followed, the Pasay lot should fetch a monthly rental of

P210,000.00 and the Sta. Cruz lot, P400,000.00. These figures


are extrapolated from the potential rental price of the lots,
considering its location.
Petitioners point out that the limitations on the right of judges to
ask questions during the trial were not observed by the
Sandiganbayan. They accuse Justice Garchitorena of acting more
of a prosecutor than the impartial judge he is supposed to be,
particularly during the examination of Cuervo. Lest we be
distracted by this allegation of bias on the part of respondent
court, it must be remembered that petitioners were never
prejudiced by such questioning, 37 which is about the only thing
that would make a string of queries by a judge objectionable. As
the following discussion will reveal, the trial court's interpretation
of Cuervo's testimony is immaterial because of the sufficiency of
the documentary evidence of the questions prosecution to prove
the charges against herein petitioners.
In view of the circumstances obtaining here, we find that the trial
court's active role in this regard was necessary to clarify
the mostly technical aspect of Cuervo's testimony. Respondent
court defended its action by declaring that:
It was precisely for the reason that Mr.
Cuervo was merely asked by Engr. Dans'
lawyer as to the fair and reasonable rentals
of the leased premises as without
improvements, without the LRT stations
being adjacent thereto, and no parts of
commercial centers, that the Court, through
Presiding Justice Garchitorena, was
constrained to propound questions on the
fair and reasonable rentals of the leased
areas by considering them as not ordinary
parcels of land. 38
The Court notes that while petitioners have been making such an
outcry since the promulgation of the questioned judgment
regarding the line of questioning followed by respondent court,
none of them ever objected to such queries during the trial.
Neither did they attempt to salvage the situation by asking
questions on re-direct examination if they harbored the
impression that the court's cross-examination seriously
prejudiced their case. This observation was likewise made by the
court a quo, to wit:
It is now too late in the day to object to the
alleged leading, misleading, and badgering
questions of the Presiding Justice
Garchitorena and to ask (the court) to
expunge the answers thereto from the
record. Needless to say, Engr. Dans (and
Marcos, for that matter) should have done
so when the supposed objectionable nature
of the questions and/or answers were
propounded or given. (Section 36, Rule 132,
1985 Rules on Evidence). As it happened, he
(and she) did not even raise his (and her)
objections at the close of the testimony of
Mr. Cuervo. He (and she) did not also ask redirect questions to correct whatever
mistakes or misimpressions allegedly crept
into Mr. Cuervo's testimony. Instead, he
formally offered the entire testimony without
making any exceptions or reservations. 39

We should stress that in affirming the conviction of petitioner


Marcos, this Court relies mainly on the prosecution's
documentary evidence showing the chasmic disparity between
the P102,760.00 monthly rental stipulated in Exhibit "B" and the
P734,000.00 monthly rental provided in Exhibit "D." The
testimony of Cuervo is, at best, opinion only, but the amounts
mentioned in the said two exhibits are facts which cannot be
altered by opinion, however "expert." Regardless of Cuervo's
expert opinion on the probable rental rate of the Pasay lot, the
stubborn fact and cold reality is that the PGHFI was able to lease
it out for an amount that was seven times more than what it
stipulated to pay the government. The sublease (Exhibit "D") is
the best monument to the "gross and manifest disadvantage"
suffered by the government due to the willful actions of Marcos.
Hence, even if the questions of Justice Garchitorena and the
answers thereto of Cuervo were totally ignored by this Court, the
prosecution's evidence would still firmly stand, and would
definitely be more than sufficient to warrant a conviction beyond
reasonable doubt.
Going further, petitioners insist that some impropriety attended
the promulgation of the challenged decision. This allegation
stems from the dissolution of the Special Division earlier created
by Justice Garchitorena because of the lack of unanimity among
the members of the First Division.
It appears from the records that Justice Narciso T. Atienza initially
wanted to acquit the defendants in Criminal Case Nos. 17449,
17451 and 17452, while Justices Garchitorena and Balajadia
wanted to convict them in Criminal Case Nos. 17450, 17451,
17452 and 17453. There was, therefore, no unanimous vote in
Criminal Case Nos. 17451 and 17452. Thereupon, a Special
Division was constituted, with the addition of Justices Augusto M.
Amores and Cipriano A. del Rosario. Over an informal luncheon
among the members of the newly-created Special
Division, 40 however, where the merits of the cases were
incidentally discussed, an understanding was reached whereby
the two newly-appointed members agreed with Justice Atienza
that the defendants should be cleared of the charges in Criminal
Case Nos. 17451 and 17452. The stance of those present was
that if the actual voting were to take place, the majority would
acquit the defendants in Criminal Case Nos. 17451 and 17452.
Consequently, Justices Garchitorena and Balajadia decided to
change their opinions in said two cases, thus giving the First
Division a unanimous vote in all the cases. There seemed to be
no further need for the Special Division; hence, it was dissolved.
The result is the assailed decision promulgated, as scheduled, on
September 24, 1993.
Petitioners point out that once the Special Division was created,
the First Division was thereby divested of jurisdiction to decide
the case. They also maintain that the informal discussion of the
merits of the cases inside a restaurant was unofficial business
and, therefore, should have no binding effect.
While it is true that under Section 5 of Presidential Decree No.
1606, as amended, when a unanimous vote is not reached by a
division, two other justices shall be designated by the Presiding
Justice to sit in a special division, and their majority vote shall be
required to reach a valid verdict, this provision does not totally
rule out a situation where all members of the 3-justice division
eventually come to a common agreement to reach a unanimous
decision, thus, making another division's participation in these
cases redundant. This is exactly what transpired in this case. The
change of heart of Justices Garchitorena and Balajadia, though
reached unofficially, may be perceived as a supervening event
which rendered the Special Division's functions superfluous. In

any case, the fact that Justice Atienza signed his concurrence
cured the defect, if any, in the questioned judgment; again, an
illustration of the "curative" effect of one's signature. Petitioners
are of the impression that this chain of events was meant to
'railroad' their conviction, thus making the magistrates
concerned vulnerable to criticism. While the Court is averse to
encouraging this kind of behavior in judges, it is of the view,
however, that the assailed decision is in harmony with the basic
right of an accused to a speedy disposition of his case. This, to
our mind, is more important than any consideration of technical
impropriety in resolving a case.
Summing up, was the guilt of petitioners proved beyond a
reasonable doubt by the prosecution?
We distinguish.
In Criminal Case No. 17453, we do not concur with the
conclusions reached by the court a quo. The culpability of
petitioners in this case stems from their entering into the lease
agreement (Exhibit "C") over the Sta. Cruz lot under terms and
conditions manifestly and grossly disadvantageous to the
government, which, in this instance, is the LRTA. To prove this
assertion, the prosecution presented in evidence the sublease
agreement (Exhibit "E") over the same property showing the
disparity in the rental price. While the authenticity of Exhibit "D,"
which was used to prove the manifest and gross disadvantage to
the government occasioned by Exhibit "B," was admitted by the
court and by the parties themselves, the validity of Exhibit "E"
cannot, even up to this point, be determined with certainty
because it is a mere uncertified photocopy of the original. Thus,
the "gross and manifest" disadvantage to the government, which
Exhibit "E" was supposed to engender, remains an allegation
which cannot be proved by other direct evidence. The fact that
only Dans objected to its admissibility does not mean that it is
valid as to Marcos. As a result, both petitioners should be, as
they are hereby, acquitted in Criminal Case No. 17453 on ground
of reasonable doubt.
In Criminal Case No. 17450, we must further qualify our
judgment.
As regards petitioner Dans, the Court is of the opinion that the
prosecution failed to prove his guilt in committing the offenses
charged beyond a reasonable doubt. We believe that his liability,
if any, could only stem from a knowledge of the terms of the
sublease agreements, Exhibits "D" and "E," which formed the
core of the Court's appraisal of the manifest and gross
disadvantage to the government. Exhibit "E," as already
discussed, was correctly disregarded by the court a quo for being
unauthenticated. Even though he was a Board Director of the
PGHFI, Dans denied any knowledge of the execution of Exhibits
"D" and "E," and his denial was never disproved by the
prosecution. In fact, his signature does not appear in either
sublease agreements. Neither was the alleged conspiracy
between him and Marcos established by the prosecution.
It is this Court's opinion, however, that the guilt of petitioner
Marcos was proved by the State beyond reasonable doubt. She
was charged with violation of Section 3(g) of R.A. No. 3019, as
amended, for executing a lease agreement (Exhibit "B") in behalf
of the PGHFI, a private enterprise of which she was the
Chairman, over a lot located in Pasay City owned by the LRTA, a
government corporation of which she was undeniably also the
Chairman. The consideration therefor was shown to be unfair and
unreasonable upon comparison with the rental price stipulated in
the sublease agreement (Exhibit "D") which she subsequently

signed for the PGHFI in favor of TNCC. That she should be held
responsible is shown by the presence of her signature in Exhibits
"A" to "E," where she acts in different capacities. She cannot,
under these circumstances, claim ignorance of the great
disparity between the rental price stipulated in the lease and the
sublease agreements. Consequently, in Criminal Case No. 17450,
the conviction of petitioner Marcos should be, as it is hereby,
upheld.

SO ORDERED.
Narvasa, C.J. and Panganiban, J., concur.

I, however, strongly disagree with the ponencia's stand on the


following points:
Separate Opinions

Finally, the Court observes that the Sandiganbayan awarded


damages to the People in the amount of P32,172,000.00 in
Criminal Case No. 17450 and P92,268,840.00 in Criminal Case
No. 17453. This must be accordingly corrected.

FRANCISCO, J., concurring and dissenting:

Considering that petitioners were acquitted in Criminal Case No.


17453 due to lack of evidence, the Court deems them likewise
free from any civil liability since the fact from which such liability
might arise no longer exists. 41

I join the ponencia in the acquittal of petitioner Jose P. Dans, Jr.


but find myself unable to agree with the conviction of petitioner
Imelda R. Marcos, in the light of the peculiar circumstances
attendant herein.

On the other hand, in Criminal Case No. 17450, the Court


observes that an error has been committed in the computation
of the damages to be awarded to the People. The trial court
based its figures on the amount it perceived to be the fair rental
value of the Pasay lot, as estimated by Cuervo, less the rental
price stated in Exhibit "B." Thus, it deducted P102,760.00 (the
stipulated monthly rental for the Pasay lot) from P210,000.00
(Cuervo's estimate, as interpreted by the court a quo) to arrive
at a difference of P107,240.00, which was multiplied by 12
months to reach an "annual loss" of P1,286,880.00. 42 This
amount was then multiplied by the life span of the lease
contract, which is 25 years, to come up with the final award of
P32,172,000.00. 43

This controversy raises seven issues:

Since the estimates of Cuervo were found to be mere


"estimates," it is difficult to imagine why the trial court used
them as basis for its calculation of damages. As we have already
demonstrated, the gross and manifest disadvantage to the
government in Criminal Case No. 17450 was determined by
comparing Exhibits "B" and "D." The conviction of Marcos was
predicated on the nexus between these two documents, as well
as on her obvious conflict of interest in entering into them. By
the same token, her civil liability must also be made to depend
on these two pieces of evidence. The correct figures should be
those stated in Exhibits "B" and "D," to wit: P734,000.00 (the
stipulated monthly sublease rental for the Pasay lot) less
P102,760.00 (the agreed monthly lease price for said property)
times 12 months times 25 years. Thus, P734,000.00 P102,760.00 = P631,240.00 x 12 months = P7,574,880.00 x 25
years = P189,372,000.00.

6.) appreciation/weight of the evidence, and

WHEREFORE, judgment is hereby rendered:


1) AFFIRMING the CONVICTION of petitioner Imelda R. Marcos in
Criminal Case No. 17450, with the modification that said
petitioner is hereby ordered to pay the Light Rail Transit
Authority (LRTA) the amount of ONE HUNDRED EIGHTY-NINE
MILLION, THREE HUNDRED SEVENTY-TWO THOUSAND PESOS
(P189,372,000.00), as and by way of reimbursement for the
prejudice caused thereto resulting from the execution of the
lease contract dated June 8, 1984; and
2) REVERSING the CONVICTION of petitioner Imelda R. Marcos in
Criminal Case No. 17453 and of petitioner Jose P. Dans, Jr. in
Criminal Case No. 17450 and No. 17453, on ground of
reasonable doubt.
Costs against petitioners.

therefor. In any case, petitioner Marcos failed to show


a clear case of unconstitutionality of Section 3(g) and
thus was not able to rebut, even by a mere scintilla of
evidence or argument, the presumption of
constitutionality of the assailed provision.

1.) the constitutionality of Sec. 3(g) of Anti-Graft and Corrupt


Practices Act,
2.) the sufficiency of the criminal informations,
3.) whether petitioner Marcos was properly represented by
counsel during the trial,
4.) the validity of the decision rendered by the First Division of
Sandiganbayan,
5.) the denial of petitioner Dans' demurrer,

7.) the alleged lack of fair trial.


I concede the correctness of the ponencia's findings as to the: (a)
constitutionality of Sec. 3(g) of Anti-Graft and Corrupt Practices
Act, (b) sufficiency of the informations, and (c) proper
representation of petitioner Marcos by counsel. However, with
respect to the constitutionality issued, I hasten to add that
contrary to petitioner Marcos' claim, Sec. 3(g) is not a rider and
therefore is not violative of the "one-title-one-subject" provision
of the Constitution. There is nothing in the subject of Section
3(g), which reads:
(g) Entering, on behalf of the Government,
into any contract or transaction manifestly
and grossly disadvantageous to the same,
whether or not the public officer profited or
will profit thereby.
that is not germane to the title of RA 3019 which is
"Anti-Graft and Corrupt Practices Act". This law covers
wrongdoings committed by public officers. Section 3(g)
does not deal with "negligence/mistake" as
erroneously argued by petitioner Marcos. Rather it
deals with a public officer's act of entering into a
"dishonest transaction in relation to official acts" per
petitioner Marcos' own definition of
"corruption." 1 Even assuming arguendo, that the act
punished under Section 3(g) may be considered as
negligent by nature, yet the opening statement of
Section 3 clearly defined and classified it as one
"constituting a corrupt practice." 2 It is within the
province of the legislative body to define and describe
what acts are criminal and to prescribe the penalty

1. Re: Demurrer
The Sandiganbayan Resolution dated February 10, 1993 denying
petitioner Dans' demurrer to evidence, reads.
Since per testimony of witness Ramon
Cuervo, Jr. (tsn., pp. 20 to 26, August 13,
1992) that considering the nature of the
terminal at the Sta. Cruz Station, which
would be subject of the lease contract
between the Light Rail Transit Authority and
the PGH Foundation Inc. (Exhibit C), the
rental of the premises in question could go
up to P400,000.00 per month if the LRTA
would put up the building as against the
stipulated rental of P92,437.00 actually
entered into between the parties, there
would appear cause to believe that the lease
contract in question was grossly
disadvantageous for the government.
For this reason, the Demurrer to Evidence of
accused Jose P. Dans, Jr., dated December 7,
1992 is DENIED for lack of merit.
It was highly improper for the Sandiganbayan to have
ruled on the demurrer on the basis of the advanced
testimony of defense witness Cuervo. A demurrer tests
the sufficiency or insufficiency solely of the
prosecution evidence and the trial court's resolution in
connection therewith should be strictly limited to that.
This is unmistakably deducible from Section 15, Rule
119 of the Revised Rules of Criminal Procedure, which
states that a demurrer is filed and resolved when it is
only the prosecution that has rested its case. Thus:
Sec. 15. Demurrer to evidence. After the
prosecution has rested its case, the court
may dismiss the case on the ground of
insufficiency of evidence; (1) on its own
initiative after giving the prosecution an
opportunity to be heard; or (2) on motion of
the accused filed with prior leave of court.
If the court denies the motion for dismissal,
the accused may adduce evidence in his
defense. When the accused files such
motion to dismiss without express leave of
court, he waives the right to present
evidence and submits the case for judgment
on the basis of the evidence for the
prosecution.
That witness Cuervo's testimony was taken in advance which the
Sandiganbayan took judicial notice of, is no justification at all for
the premature consideration of said defense evidence. For
otherwise, it is tantamount to an adjudication on the merits even
before the defense takes its turn to present all evidence it deems
necessary to its cause.

2. The jurisdictional fiasco between the First and Special Division.


There is merit in petitioner Marcos' contention that it should not
be the First Division (with 3 members namely, Justices
Garchitorena, Balajadia and Atienza) but the Special Division
(with 5 members namely, Justices Garchitorena, Balajadia,
Atienza, Del Rosario and Amores) that has jurisdiction to render a
"decision" on the case. The legal requirement of the unanimity in
the votes of three members of the (First) Division was not
obtained due to the dissent of Justice Atienza. As culled from the
"Response" of Justice Garchitorena 3 to petitioner Marcos' motion
for his inhibition, in the initial voting, Justices Garchitorena and
Balajadia voted to convict petitioner Marcos in Criminal Cases
17450, 17451 and 17449 and to acquit her in Criminal Case
17453, whereas Justice Atienza voted to convict her in Criminal
Cases 17450 and 17453 and acquit her in Criminal Cases 17449
and 17451. Thus, on September 15, 1993, Justice Garchitorena
issued Administrative Order 288-93 forming a Special Division
and designated Justices Amores and Del Rosario to "sit and
participate in the rendition of a decision in Criminal Cases 17449
17453 People of the Philippines v. Imelda Marcos and Jose
Dans." 4 On September 21, 1993, Justices Garchitorena, Balajadia
and Del Rosario, in the presence of another Sandiganbayan
Justices 5 not a member of either the First or Special Division,
discussed their respective positions while having lunch in a
Quezon City restaurant. Justice Del Rosario had similar
conclusions with that of Justice Atienza. That same day
(September 21), Justice Amores sent a written request that he be
given 15 days before submitting his "manifestation" which
request was considered by Justice Garchitorena as "pointless
because of the agreement of Justice Balajadia and the
undersigned with the conclusion reached by Justice
Atienza." 6 Upon arriving at the Sandiganbayan office on the
same day of September 21, 1993 Justice Garchitorena issued
Administrative Order 293-93 7dissolving the Special Division
"after deliberation and discussion among the members of the
First Division," thus, not only pre-empting whatever opinion
Justice Amores might render in his manifestation but likewise
rendering nugatory the formation of the special division. A
decision was earlier scheduled for promulgation on September
24, 1993 which turned out to be the now-assailed decision of
the Sandiganbayan First Division.
From the foregoing, it is very disturbing why it was the First
Division which rendered a "decision" notwithstanding the fact
that the Special Division had already been created precisely
because the First Division could no longer render any "decision"
for lack of unanimity among its members, as required by Section
5 of the Sandiganbayan law (P.D. 1606 as amended), which
reads:
Sec. 5. Proceedings, how conducted; votes
required. The unanimous votes of the
three justices in a division shall be
necessary for the pronouncement of a
judgment. In the event that the three
justices do not reached a unanimous vote,
the Presiding Justice shall designate two
other justices from among the members of
the Court to sit temporarily with them,
forming a division of five justices, and the
concurrence of a majority of such
division shall be necessary for rendering a
judgment. (emphasis supplied).
Verily, by virtue of the creation of the Special Division,
it is axiomatic that the First Division is divested of

jurisdiction to pass judgment over the case in favor of


the Special Division. And there is nothing in the law or
rules that allows the original division to "re-render" a
decision once a Special Division is already in place.
Moreover, it was too speculative for Justice
Garchitorena to consider as pointless Justice Amores'
manifestation. Who knows, Justice Amores' opinion
could have swayed the other Justices, and thus a
different outcome may have possibly resulted.
Another point. The Sandiganbayan law provides that:
The Sandiganbayan shall have its principal
office in the Metro Manila area and shall hold
sessions thereat for the trial and
determination of all cases filed with it
irrespective of the place where they may
have arisen, . . . . 8
And its Rules of Procedure particularly clarifies that:
sessions of the Sandiganbayan, whether en
banc or division, shall be held in its principal
office in the Metropolitan Manila area
where it shall try and determine all
cases filed with it . . . . 9 (Emphasis supplied)

Now to the heart of Cuervo's testimony, hereby reduced to its


simplest presentation. In determining fair rental value of
properties, first to be determined is the fair market value (FMV)
of the property. FMV of properties already for sale in the market
is based on the market data approach which considers how much
properties in that particular area were sold, how much properties
were being offered for sale in said area and also inputs from
fellow appraisers and brokers. 13 The size, shape, frontage and
configuration of the property are also very relevant in
determining FMV. 14 Fair rental is then computed on 6% to 8% of
the FMV of the property, this being the most reasonable and
commonly used value for long-term leases of land in areas where
the value of the land appreciates more rapidly. 15
Thus, for the 7,340 sq. m. Pasay property, which is bare, Cuervo
determined its FMV at P1,000.00 to P1,500.00 per square
meter. 16 This valuation considered offers for sale, actual sales
and appraisal jobs by witness Cuervo's own real estate firm of
comparable lots in the same vicinity which, as testified to by
witness Cuervo and summarized by the Sandiganbayan, are:
Offers for sale in the "Bulletin Today"
On January 20, 1984
629
sq.
m.
loca
ted
alo
ng
Taft
Ave
nue
Pas
ay
City
,
offe
red
for
sale
by
Pol
o
Ma
nriq
ue
Rea
lty
wit
h
an
aski
ng
pric
e of
P2,
500
per
squ
are
met
er.

The Quezon City restaurant where Justices


(Garchitorena, Balajadia and Del Rosario) took lunch
and where they, as per Justice Garchitorena's account,
"discussed their positions in these cases" 10 is not the
principal office or an extension of the Sandiganbayan.
Neither was there any prior valid authorization to hold
sessions therein. Clearly then, whatever discussion
and agreement was made among the abovementioned Justices present in that restaurant cannot
be considered as "official business" therefore, had no
binding effect.
Moreover, the presence of a non-member of the First Division in
the deliberation of the cases likewise taints the decision with
irregularity. Needless to state, the actual decision-making
process is supposed to be conducted onlyby the designated
members of the First Division in strict confidentiality. The "nonmember" justice's presence in said deliberation is tantamount to
a public disclosure of court proceedings that require utmost
secrecy. This, and the jurisdictional fiasco between the First and
Special Division as previously discussed, rendered the assailed
decision, sad to say, void.
3. Appreciation/Weight of evidence.
The centerpiece evidence for petitioners is the testimony of Mr.
Cuervo who, in the light of his unquestioned credentials as a
reputable veteran real estate broker and appraiser, 11 qualified
as an expert witness. He gave a brief description of what a real
estate broker and an appraiser do. A broker earns his living
through services by offering for sale properties that had been
entrusted to him, or to lease or administer them, or even for
mortgage purposes. An appraiser, witness Cuervo continues,
gives a knowledgeable opinion on what would be a fair market
value for a specific property whether it be for sale, lease,
mortgage or exchange. He also gives an opinion on what should
be a fair rental for the property, or what should be the selling
price of a property if the owner wishes to sell or exchange it with
another property. 12
On October 16, 1983

RG
V
Rea
lty
offe
red
for
sale
1,0
00
sq.
m.
wit
h
imp
rov
em
ent
ther
eon
alo
ng
Taft
Ave
nue
,
Pas
ay
City
, at
P1.
7
mill
ion
or
an
ave
rag
e
per
squ
are
met
er
of
P1,
688
.

lot
loca
ted
on
F.B.
Har
riso
n
nea
r
Lib
erta
d
St.,
Pas
ay
City
, for
P1,
500
per
squ
are
met
er.
The firm of the witness itself had also made
the following appraisal jobs:
On June 7, 1984
Pro
pert
y
alo
ng
EDS
A
and
Vizc
arra
St.
clos
e to
Taft
Ave
nue
wit
h
an
are
a of
823
sq.
m.
at
P2,
500
per
squ
are
met
er.

On September 4, 1984
R.F.
Pul
a,
ano
ther
bro
ker,
offe
red
for
sale
300
sq.
m.
of

On June 6, 1984

25
con
tigu
ous
lots
alo
ng
Taft
Ave
nue
,
Mar
ia
Lim
and
Don
ada
Stre
ets
nea
r
De
la
Sall
e
Coll
ege
wit
ha
tota
l
are
a of
12,
000
sq.
m.
at
P1,
129
per
squ
are
met
er,
wit
h
the
are
a
alo
ng
Taft
Ave
nue
corr
esp
ond
ing
to
2,1
56
squ
are
met
ers

at
P1,
700
per
squ
are
met
er.

For the 1,141.2 sq. m. Sta. Cruz property, Cuervo assigned


P10,000.00 to P15,000.00 as FMV per square meter, also by
means of "comparables" of offers for sale, appraisals made and
information from fellow realtors/appraisers, such as:
On May 28, 1983
604
sq.
m.
lot
loca
ted
alo
ng
Esc
olta
offe
red
by
UniInv
est
Ma
nag
em
ent
Cor
por
atio
n at
P6,
000
per
squ
are
met
er;

On June 1, 1984
6
con
tigu
ous
lots
alo
ng
Taft
Ave
nue
,
Bue
ndi
a
and
Don
ada
Sts.
wit
h
an
are
a of
3,7
72
sq.
m.
at a
tota
l
val
ue
of
P7,
964
,90
0 or
an
ave
rag
e of
P2,
111
.58
per
squ
are
met
er. 1
7

FMV of the entire land, computed on P1,500.00/sq. m.,


is therefore, P11,010,000.00. Multiplied by the higher
value of 8%, P880,800.00 then will be the fair rental
value of the Pasay property per annum, 18 or
P73,400.00 a month.

Pul
a at
P18
,57
5.0
0
per
squ
are
met
er;
On April 5, 1982
439
sq.
m.
lot
alo
ng
Ech
agu
e
St.
in
Qui
apo
offe
red
for
sale
by
Hon
oria
Dev
elo
pm
ent
at
P12
,00
0
per
squ
are
met
er.

On June 13, 1982


323
sq.
m.
lot
alo
ng
Car
ried
o
Stre
et
nea
r
Plaz
a
Mir
and
a
offe
red
for
sale
by
Rea
ltor
R.F.

His company, the Cuervo Appraisers


Company, appraised two (2) properties in
that year, viz:
On August 1, 1984
for
pur
pos
es
of
selli
ng,
the
Ode
on
The
ater
at

Riz
al
Ave
nue
cor.
Rec
to
Ave
nue
wit
h
an
are
a of
1,5
80
sq.
m.
app
rais
ed
at
P14
,50
0
per
squ
are
met
er
(ex
clu
din
g
the
mo
vie
hou
se);
and
On March 19, 1984
The
Phil
ippi
ne
Co
mm
erci
al
Inte
rnat
ion
al
(sic
)
Ban
k's
site
at
Plaz
a
Sta.
Cru
z,

mor
e or
less
dia
gon
ally
acr
oss
Das
mar
ias
,
wit
h
an
are
a of
679
sq.
m.
was
app
rais
ed
at
P8,
500
per
squ
are
met
er. 1
9

Fair rental value for this property was pegged at


P969,907.68 per annum, or P80,825.64 a
month. 20 This assumed that the FMV per sq. m. is
P10,623.76 at the same value of 8%.

much as the stipulated rental in the lease


agreement. "It would be that way, your
Honor, if they would put up the shops . . . ."
(p. 25, id.)
In sum, according to witness Ramon F.
Cuervo, Jr., whom accused Dans qualified as
a real estate broker and appraiser,
(a) the LRTA property in Pasay City was
leased to the PGH Foundation at 1/2 of what
the property should have been leased out
for; and
(b) the Sta. Cruz property was leased to the
PGH Foundation for 1/4 of what that
property should have been leased out for.
Obviously there is gross disparity here. 21
The problem with the Sandiganbayan's findings is that
it completely ignored the unchallenged testimony of
witness Cuervo and instead supplanted the same with
valuations based on unfounded assumptions and/or
hypothetical situations. For the Pasay property, for
instance the Sandiganbayan particularly Justice
Garchitorena, proceeded from his insistent assumed
premise that the property was with "substantial
amount of improvement." We quote the pertinent
sequence of questioning from the transcript of
stenographic notes,viz:
ATTY. BELO
Q What percent
therefore of the fair
market value constitute
the rental of this
property we are talking
about?

The defense's position, in sum, is that the two (2) lease


agreements could not have been grossly disadvantageous to the
government since the stipulated rentals for the Pasay and Sta.
Cruz properties (P102,760.00/month and P92,437.20/month,
respectively) in fact exceed the uncontradicted fair rental values
assigned by expert witness Cuervo for both properties
(P73,400.00/month and P80,825.64/month, respectively). The
lease agreements, obviously, generated very fair rentals for the
government.

A P880,800 per annum,


which would be a fair
rental.

But the Sandiganbayan, in convicting petitioners, found a much


higher valuation. It said.

Q So the rental
stipulated in the
contract exceeds what
you call fair rental for
this property?

So we summarize.
Considering the real estate values given by
appraiser Cuervo,

Q On the other hand,


the rental stipulated in
this contract is what?
A P1,233,120.00, sir.

A Yes, sir.

(1) compared with the fair rental value of


P80,825.65 under moral circumstances for
ordinary properties there, the rental value
the Sta. Cruz area of the LRTA property
(Exhibit "E") would go up by 5 times or up to
P400,000 "if they would use that space
available for shops" (p. 23, TSN, August 13,
1992); and

PJ GARCHITORENA

(2) the estimate given by witness Cuervo for


the Pasay City Station would still be twice as

A Yes, your Honor.

Q That is on the
presumption that there
are no buildings on the
land you are renting?
WITNESS

Q However, here we are


talking of property with
substantial amount of
improvement?
A I am computing it
based on bare land,
your
Honor. 22 (Emphasis
supplied).
xxx xxx xxx
PJ GARCHITORENA
Now, the Court will ask
questions.
Q Mr. Cuervo, when you
were talking about real
estate both in Pasay
and in Sta. Cruz, you
were talking about
buildings and properties
that are either empty or
of buildings in the same
vein of no useful
construction or else of
ordinary construction.
WITNESS
A In this particular
property, the one in Sta.
Cruz, the building was
demolished.
PJ GARCHITORENA
Q We are talking of
Pasay.
WITNESS
A The one in Pasay, I
was told some
improvements there
were not yet existing at
that time.
Q Obviously from your
information the
construction were of no
significant value?
A Right.
Q We, of course, know
that these properties
are. These were the
terminals, the important
stations of the Light
Railway Transport
System, and if we did
not know then, we know
now that these
constructions were of
heavy designs and
because of the nature

of the activity there it


will be a higher
pedestrian traffic area
which for retail
purposes would be,
presumably, a very
important valuable
piece of property, do
you agree with that?
A Yes, for retail
specially.
Q In that light, are you
still prepared to tell us
that insofar as Pasay is
concerned, your
appraisal in 1984 would
still be rated at the
same level that you
were rating similar
property which were
listed among realtors in
1984?
A The value that I gave
between P1,000 to
P1,500?
Q Yes.
A That is because those
improvements were not
yet there. I am giving
the value of the land as
fair (sic, should be bare)
not as already a station.
Q So that while, as a
general statement, you
would say for ordinary
realtor in the Pasay
area, your listing on
Exhibit 4 would be valid.
In fact, everybody in
this courtroom knows
that the property we are
discussing here was not
an ordinary piece of
land?
A Was never an ordinary
piece of property before
it was built. . . .
Q Insofar as the subject
matter now is
concerned which is an
LRT terminal?
A Yes, sir.
Q Will you now be in a
position to make a
statement as to what a
fair market value of the
property would be, if
not for

acquisition, . . . . . what
would be the value
which would give you a
fair rental?
A If that land would fair
now?
Q Considering what it is
being used for.
A The only thing that
could be of value is the
potential of what rental
it could get by retailing
but not as station.
Q So, as a retail outlet,
or whatever, supposing
you are going to lease it
so that you could turn
around and use it for
advertising space, use it
for particular stalls,
stores, may be jeepney
or tricycle terminal or
whatever because it is
an exchange, would you
be in a position to do
appraisals for rental
value?
A Yes, your Honor.
Q Supposing the LRT at
that time had engaged
you and say, "Mr.
Cuervo, we want to
make money
additionally out of this
area, can you consult
with us"?
A We would go on
hypothetical. If there
were no stores there at
this point and time,
then we will consider
the rental rates of
commercial properties
of the immediate area,
and with the market
there we will also go to
hypothetical approach
to this area. Considering
that it is a catchment
area where thousands
of people would be
passing by in front
of . . . . .
PJ GARCHITORENA
Q Have you thought of
what values you would
put there?

A No I did not get to


that point.
Q Would you be in a
position, no you would
not. But obviously, it
would be much more
than the values you
gavr (sic) us on the
basis of your listings?
A The value that I gave
you in 1983?
Q We are talking of
1984. We are talking
about whether Mr. Dans
was remiss in that
property in 1984. What
would be the multiples
that you would use if
you were the consultant
of the LRTA?

Q No, Mr. Cuervo, we


are taking this out in
testimony and we want
to be able to read well.
What was your
estimates for the fair
rental value per square
meter of Pasay, the one
that you gave us
yesterday.
You gave us a figure
yesterday. You were
telling us that your land
value is ranged from
P1,000 to P1,500 in that
area. Under this
circumstances, what
would be your fair rental
at that time?
You can use your
calculator.

A I would go to the
prevailing rental rates of
CANTIMAR (sic) and all
the other stores, and
the Baclaran activity,
and then . . . .

A Taking a high figure of


P1,500 times .08 would
be P120.00 per square
meter, your Honor.

Q Can you given (sic) us


the multiples that you
would use if this is the
latest rental ub (sic) the
area, would it be more,
the same or less?

A Yes, your Honor.

A Definitely more
comparing it to
Cantimar (sic) and the
Baclaran area would
probably be 2 to 3 times
more.
Q Alright, let's take it at
3. So, your testimony
yesterday was what? Do
you recall? Your
estimate yesterday
without inputing the
LRT, was what again?
A P63,039.00
PJ GARCHITORENA
Q That was your
assumed fair market
value for what period?
A Then we have
P425,885.
Q Would be for what
period, monthly period?
A That is the valuation.

Q Rental?

Q So, for the entire


property of 7,340
square meters
A P10.00 per square
meter.
Q P10.00 per square
meter would be fair
rental?
A Fair rental at that time
Q With an area of 7,340,
you were saying that
73,400 would be of the
ordinary property then?
A Yes, your Honor.
Q Now, if we talk of a
multiple of 3, then we
are talking of P210,000
more or less?
PJ GARCHITORENA
Q Per month, what was
the rental agreement
under Exhibit 3-C?
ATTY. BELO
It was P102,760
monthly.
PJ GARCHITORENA

Q So, if we are going to


look at your figures,
your estimated rental of
P210,000 per month
would be twice as much
as the rental fixed in the
Lease Contract of the
LRTA with the PGH
Foundation?
A Yes, your
Honor. 23 (Emphasis
supplied)
From the assumption/hypothesis that the Pasay
property was with "substantial amount of
improvement" ("LRT station" of "heavy design" which
makes it a "higher pedestrian traffic area"), the
Sandiganbayan was able to extract from witness
Cuervo a valuation "2 to 3 times more" of Cuervo's
original input of P73,400.00/month. The court then
multiplied P73,400.00 by the higher multiple of 3,
yielding the figure "P210,000.00 more or less" which
led it to conclude that the P102,760.00/month lease of
the Pasay property is only "1/2 of what the property
should have been leased out for." Certainly, witness
Cuervo had no choice but to give answers to the series
of hypothetical questions hurled by the
Sandiganbayan. It is evident, however, that witness
Cuervo was keen enough to protect his original figures
from being lost in the court's sea of assumptions, as
he vigilantly pointed out, at certain points, that:
(1) his computation is based on bare land, 24 and not as station
because the improvements mentioned by the Sandiganbayan
(LRT terminals, constructions of heavy designs) were not yet
there, 25
(2) that some improvements on the property were of no
significant value, 26 and
(3) he and the Sandiganbayan were "going on hypothetical". 27
Similar state of affairs was present in connection with the Sta.
Cruz property. Here, the Sandiganbayan arrived at
P400,000.00/month rental for the property, or about 5 times
witness Cuervo's valuation of P80,654.64/month, on the same
assumed premise that the property was with "substantial
amount of improvement." We go again to the transcript of
stenographic notes:
Q Now with regard to
the Sta. Cruz terminal,
again the figures you
gave us in Exhibit 7
which is the lower half
of your listings were
again on the basis of
the property as based
on the environment
there, all the way to
Escolta and going all
the way to North to
Recto, and the fair lease
rental that you gave us,
at that time, would have
been what?

A We came out with


P969,970 against the
P1,109,246 which was
the contract.
Q So the contract was . .
..
A Was a little bit high.
Q So the contract was
reading at P1.1 million?
A That is right, your
Honor?.
Q That was the lease
rental of LRTA in favor of
PGH Foundation. But we
are talking about a
general situation. Now,
we have this particular
station which was not
only terminal but a
crossroad really
because you had people
from all sides of Quiapo,
Sta. Cruz, Rizal Avenue
which will board
presumably all the way
to Baclaran and all the
way to Caloocan. So,
you have a bigger
mixture of people
coming in. What would
be your multiple here?
WITNESS
A I would go as high as
5, your Honor.
Q Now, you estimated
the proper rental value
per month for the
property to be what?
A (Witness making his
computation),
P80,825.64, your Honor.
Q For the total area
monthly?
A The total area divided
by . . . . . P70.82 per
square meter, your
Honor. P70.82 per
square meter was the
multiple for the 1,141
square meters.
Q That was your
professional opinion?
A Yes, your Honor.
Q One more time. Your
estimated professional

opinion at that time, the


rental value would
be. . . .
A I came out with the
figure P969,970.49 for
the year.
Q Is this per square
meter or for the entire
property?
A For the entire
property divided by 12,
we come out with
P80,825.64.

Correct, but we also ask


him to input now the
character of the railway
station. That is why he
said the railway station
would make it much
valuable 5 times more.
WITNESS
A Yes, if they would use
that space available for
shops.
PJ GARCHITORENA

A Yes, sir.

Yes, of course. We are


talking here of all other
things being equal
except the fact that we
have a railroad station,
a cross terminal.

Q Now, our Lease


Contract there, Exhibit
6, tells us. . . . .

So, here we are saying


that P400,000 a month
would be a good rental?

ATTY. BELO

A Will they be putting


up the building?

Q So, this would be our


fair rental on the
optimum condition?

Under the Lease


Contract is P92,437.20
a month.
PJ GARCHITORENA
Q If you say that the fair
rental value was
P80,000 but because of
the construction of the
particular nature of the
condition of the Sta.
Cruz Station or the
Carriedo Station, you
would use a factor of 5,
a multiple of 5, then you
would be talking
something like
P400,000 per month
rental. So on that basis,
the rental of the LRT
authority in favor of the
PGH was almost 1/4 as
much as you think the
rental should have
been?
ATTY. BELO
Objection, your Honor,
that is not the
conclusion. You see this
Honorable Court is
inputing the value as
station now but the
witness is testifying on
the fair market value at
that time.
PJ GARCHITORENA

PJ GARCHITORENA
It does not matter. See,
if the LRT put up the
building it will ask for a
fair return of the
property. Whoever put
up the building will
charge for the rent.
WITNESS
A If the tenant will put
up the building his
capital outlay on his
own will be beside the
rent. While if the LRT
will put up the building,
then the rent. . . . . . . .
PJ GARCHITORENA
That is correct, we are
talking here about cost
of money. There is a
beautiful phrase for that
in finance, how you
project the value of the
money-etc.
So, these are our figures
now, P400,000 more or
less is a good asking
price or fair rental price
insofar as the LRT
authority were
concerned.
Nonetheless, we are
told that the monthly

rental for the Sub-Lease


in the Sta. Cruz property
is how much per much,
(sic) for the entire
property?
A The Lease Contract is
P255,797.50 a month.
Q For the entire
property?
A For the entire
property.
Q So, based on your
estimates it will still be
1/2 as much as you
would charge if you
were the LRT on the
basis of the input? So,
even if sub-leased to
Trans-National
Construction
Corporation was still 50
per cent cheaper than
what you would have
charge if you were
going to advice the LRT
as to what the rental
would be.
A It would be that way,
you Honor, if they would
put up the shop, this is
just the land.
PJ GARCHITORENA
Q Except that we know
now that what was
being leased was not
land but the facilities
which would be
available in the LRT
terminal.
WITNESS
A The building was built
by the lessee. 28
Note that counsel for petitioner Dans, Atty. Belo,
apparently disturbed by the trend of the
Sandiganbayan's questioning, could no longer help but
raise the objection that the court is "inputing the value
as station now but the witness is testifying on the fair
market value at that time." Atty. Belo's objection is
well-taken inasmuch as witness Cuervo's
uncontradicted valuation of P80,825.64 as fair rental
on the "optimum condition" 29 is premised on the fact
that the Sta. Cruz property is bare, ". . . just a
land" 30 the Isetann building which used to stand
thereon having been demolished prior to the execution
of the lease agreement. 31 This is supported by the
Sta. Cruz property lease agreement itself which, in its
first "WHEREAS" clause, described the Sta. Cruz
property to be "located at the former site of the

Isetann Building at the President Hotel Building in the


District of Santa Cruz, City of Manila, . . . ." 32
The Sandiganbayan, in the course of the examination, would also
appear to make issue of the fact that the PGHFI-TNCC sublease
agreement over the Pasay property for P734,000/month 33 was
very much higher than the P102,760.00/month rental under the
LRTA-PGHFI lease contract or even witness Cuervo's valuation of
P73,400.00/month, which witness Cuervo admitted to be
"extraordinary high" the reason/s for which is beyond his
knowledge.
Q As a professional
because you are
presented here as an
expert, do you know of
any reason why the
consideration in the
Sub-Lease Agreement
was very much higher
than the consideration
in the Lease Contract
after only 19 days?
A I am sorry I cannot
give you an answer to
that. All I know is that
the rental of the sublease is extra-ordinary
high. There must be
some other reasons
other than my
knowledge. 34
This, however, is useless against petitioner Dans since his
signature, it must be stressed, does not appear on the sublease
agreement, the only signatory therein in behalf of the PGHFI is,
to repeat, petitioner Marcos as Chairman of the Board.
Furthermore, petitioner Dans testified that he did not participate
in the negotiation for the PGHFI-TNCC sublease contract. 35 It was
only a few months after the execution of the sublease agreement
that petitioner Dans learned about it. 36 In fact, petitioner Dans,
as PGHFI board member, was able to attend only one board
meeting the very first which was the organizational meeting
but the PGHFI-TNCC sublease contract was not discussed
therein. 37
The Sandiganbayan also sniped at the following stipulation found
in both lease contracts:
Should there be a delay in any payment of
the rental consideration equivalent to one
year, the LESSOR shall have the right to take
possession of the premises, the property
and improvements thereon, the ownership
of all improvements thereby accruing to the
LESSOR. 38
and then proceeded to say that:
As if this disadvantage were not enough, in
both acts, non-payment of rentals by the
PGH Foundation was not actionable unless
the rentals were in arrears for one year (par.
II, 4, Exhibits "B" and "C"). The LRTA could
be, therefore, deprived of the enjoyment of
the rentals from its two valuable pieces of
real estate or of the interest income

therefrom for almost one year without any


recourse for the LRTA. And if the LRTA
needed any money which it could have
otherwise gotten from the rentals of the
properties, it would have to borrow money
from other sources and pay interest for
eleven (11) months because the PGH
Foundation had to be in arrears for twelve
(12) months before the LRTA could take any
action.
This was not only being over generous; it
was cross abandonment of any effort to get
decent terms for the LRTA. 39
This is a very narrow interpretation of said stipulation. I
subscribe to petitioner Dans' view that the stipulation
gives the LRTA as lessor the "additional right" to
recover possession of the two (2) leased properties
and to acquire ownership of all improvements
introduced thereon if and when PGHFI incurs arrears
equivalent to one year rental. It certainly does not bar
the LRTA from availing of other legal remedies not
expressly contained in the contract, for the principle is
well settled that an existing law enters into and forms
part of a valid contract without need for the parties
expressly making reference to it. 40
The bottomline of it all is that the evidence, as I see it, tilts
heavily in favor of petitioners. Conviction must rest, as wellsettled jurisprudence tells us, not only the weakness of the
defense but on the strength of the prosecution. 41"When the
prosecution fails to discharge its burden, an accused need not
even offer evidence in his behalf." 42 The weakness of the State's
case is made glaringly evident not only because the
documentary evidence it presented do not, by themselves, prove
the crime/s charged against petitioners, but by its dismal failure
to debunk witness Cuervo's expert testimony in open court. And
the Sandiganbayan cannot save the day for the prosecution by
considering as evidence testimony made in response to its
hypothetical questions that find no basis at all on the records.
The guiding rule is that hypothetical questions must include only
facts that are supported by evidence and should embody
substantially all facts relating to the particular matter upon
which an expert opinion is sought to be elicited, but they need
not include all facts pertinent to the ultimate issue. 43 The chief
test, therefore, of the competency of a hypothetical question is
whether it is a full and fair recital of all the essential
evidence disclosed by the record on the particular issue which is
involved. But where (as in this case) the question assumes facts
in direct conflict with the undisputed evidence, or omits material
facts upon which a determination of the problem depends, the
hypothetical questions become misleading and it is then likely to
lead the witness to a false conclusion. 44 Thus, the testimony
given by witness Cuervo is, to my mind, the most telling
evidence in this case, for testimony to the value of real estate by
experts whose opinions are derived from an intimate knowledge
of the property in question and of the sales made in the
immediate vicinity carries great weight 45 if not the greatest
weight when, as in this case, it is uncontradicted.
4. The undue interference of the Sandiganbayan Justices in the
presentation of the case.
The transcript of stenographic notes supports petitioner Dans'
charge of "unfair alliance" of the Sandiganbayan with the

prosecution during the trial particularly in the examination of


the witnesses.

Q We are talking of
Pasay.

For starters, the court questions were so numerous which, as per


petitioner Dans' count, totalled 179 compared to prosecutor
Queruben's questions which numbered merely 73. 46 More
noteworthy, however, is that the court propounded leading,
misleading and baseless hypothetical questions all rolled into
one. And what appears to be the central assumption of the court
is the following:

WITNESS

xxx xxx xxx


Q So the rental
stipulated in the
contract exceeds what
you call fair rental for
this property?
A Yes, sir.
PJ GARCHITORENA
Q That is on the
presumption that there
are no buildings on the
land you are renting?
WITNESS
A Yes, your Honor.
Q However, here we are
talking of property with
substantial amount of
improvement?
A I am computing it
based on bare land,
your
Honor. 47 (Emphasis
ours)
xxx xxx xxx
PJ GARCHITORENA
Now, the Court will ask
questions.
Q Mr. Cuervo, when you
were talking about real
estate both in Pasay
and in Sta. Cruz, you
were talking about
buildings and properties
that are either empty or
of buildings in the same
vein of no useful
construction or else of
ordinary construction.

A The one in Pasay, I


was told some
improvements there
were not yet existing at
that time.
Q Obviously from your
information the
construction were of no
significant value?
A Right.
Q We, of course, know
what these properties
are. These were the
terminals, the important
stations of the Light
Railway Transport
System, and if we did
not know then, we know
now that these
constructions were of
heavy designs and
because of the nature
of the activity there it
will be a higher
pedestrian traffic area
which for retail
purposes would be,
presumably, a very
important
valuable piece of
property, do you agree
with that?
A Yes, for retail
specially.
Q In that light, are you
still prepared to tell us
that insofar as Pasay is
concerned, your
appraisal in 1984 would
still be rated at the
same level that you
were rating similar
property which were
listed among realtors in
1984?
A The value that I gave
between P1,000 to
P1,500?

WITNESS

Q Yes.

A In this particular
property, the one in Sta.
Cruz, the building was
demolished.

A That is because those


improvements were not
yet there. I am giving
the value of the land as
fair not as already a
station.

PJ GARCHITORENA

Q So that while, as a
general statement, you
would say for ordinary
realtor in the Pasay
area, your listing on
Exhibit 4 would be
valid. In fact, everybody
in this courtroom knows
that the property we
are discussing here was
not an ordinary piece of
land?
A Was never an ordinary
piece of property before
it was built . . . . . .
Q Insofar as the subject
matter now is
concerned which is an
LRT terminal?
A Yes, sir.
ours)

48

(Emphasis

Aware that witness Cuervo's assessments of FMV of the property


pertains to bare land, respondent court (PJ Garchitorena), during
the examination of the witness, cunningly entices and misleads
the latter that the subject conversation is a piece of land with
substantial improvements. A priori convinced that the rentals
were disadvantageous to the government, the court was not only
assuming, but likewise insisting upon Cuervo that the valuation
he gives pertains to land with improvements contrary to what
the witness had testified that what he is giving value is a bare
land.
From this "mother" assumption flowed the continuous string of
follow-up assumptions of the court scattered all over the
transcript of stenographic notes. Thus:
(For the Pasay Property)
Q Will you now be in a
position to make a
statement as to what a
fair market value of the
property would be, if
not for
acquisition, . . . . . what
would be the value
which would give you a
fair rental?
A If that land would fair
now?
Q Considering what it is
being used for.
A The only thing that
could be of value is the
potential of what rental
it could get by retailing
but not as station.
Q So, as a retail outlet,
or whatever, supposing
you are going to lease it
so that you could turn

around and use it for


advertising space, use it
for particular stalls,
stores, may be jeepney
or tricycle terminal or
whatever because it is
an exchange, would you
be in a position to do
appraisal for rental
value?
A Yes, your Honor.
Q Supposing the LRT at
that time had engaged
you and say, "Mr.
Cuervo, we want to
make money
additionally out of this
area, can you consult
with us"?
A We would go on
hypothetical. If there
were no stores there at
this point and time,
then we will consider
the rental rates of
commercial properties
of the immediate area,
and with the market
there we will also go to
hypothetical approach
to this
area. Considering that it
is a catchment area
where thousands of
people would be
passing by in front
of . . . . . . . . . . .
PJ GARCHITORENA
Q Have you thought of
what values you would
put there?
A No I did not get to
that point.
Q Would be in a
position, no you would
not. But, obviously, it
would be much more
than the values you
gavr (sic) us on the
basis of your listings?
A The value that I gave
you in 1983?
Q We are talking of
1984. We are talking
about whether Mr. Dans
was remiss in that
property in 1984. What
would be the multiples
that you would us if you

were the consultant of


the LRTA?

You can use your


calculator.

A I would go to the
prevailing rental rates of
CANTIMAR (sic) and all
the other stores, and
the Baclaran activity,
and then . . . .

A Taking a high figure of


P1,500 times .08 would
be P120.00 per square
meter, your Honor.

Q Can you given us the


multiples that you
would use if this is the
latest rental ub (sic) the
area, would it be more,
the same or less?

A Yes, your Honor.

A Definitely more
comparing it to
Cantinmar (sic) and the
Baclaran area would
probably be 2 to 3 times
more.
Q Alright, let's take it at
3. So, your testimony
yesterday was
what? Do You
recall? Your estimate
yesterday without
imputing the LRT, was
what again?
A P63,039.00.
PJ GARCHITORENA
Q That was your
assumed fair market
value for what period?
A Then we have
P425,885.
Q Would be for what
period, monthly period?
A That is the valuation.
Q No, Mr. Cuervo, we
are taking this out in
testimony and we want
to be able to read
well. What was your
estimates for the fair
rental value per square
meter of Pasay, the one
that you gave us
yesterday.
You gave us a figure
yesterday. You were
telling us that your land
value is ranged from
P1,000 to P1,500 in that
area. Under this
circumstances, what
would be your fair
rental at that time?

Q Rental?

Q So, for the entire


property of 7,340
square meters
A P10.00 per square
meter.
Q P10.00 per square
meter would be fair
rental?
A Fair rental at that
time.
Q With an area or 7,340,
you were saying that
73,400 would be of the
ordinary property then?
A Yes, your Honor.
Q Now, if we talk of a
multiple of 3, then we
are talking of P210,000
more or less?
PJ GARCHITORENA
Q Per month, what was
the rental agreement
under Exhibit 3-C?
ATTY. BELO
It was P102,760
monthly.
PJ GARCHITORENA
Q So, if we are going to
look at your figures,
your estimated rental of
P210,000 per month
would be twice as much
as the rental fixed in
the Lease Contract of
the LRTA with the PGH
Foundation?
A Yes, your Honor.

49

(For the Sta. Cruz


Property)
Q Now with regard to
the Sta. Cruz terminal,
again the figures you
gave us in Exhibit 7
which is the lower half

of your listings were


again on the basis of
the property as based
on the environment
there, all the way to
Escolta and going all
the way to North to
Recto, and the fair
lease rental that you
gave us, at that time,
would have been what?
A We came out with
P969,970 against the
P1,109,246 which was
the contract.
Q So the contract was . .
.......
A Was a little bit high.
Q So the contract was
reading at P1.1 million?
A That is right, your
Honor?
Q That was the lease
rental of LRTA in favor
of PGH Foundation. But
we are talking about a
general situation. Now,
we have this particular
station which was not
only terminal but a
crossroad really
because you had people
from all sides of Quiapo,
Sta.Cruz, Rizal Avenue
which will board
presumably all the way
to Baclaran and all the
way to Caloocan. So,
you have a bigger
mixture of people
coming in. What would
be your multiple here?
WITNESS
A I would go as high as
5, your Honor.
Q Now, you estimated
the proper rental value
per month for the
property to be what?
A (Witness making his
computation).
P80,825.64, your Honor.
Q For the total area
monthly?
A The total area divided
by. . . . . . . . . P70.82 per
square meter, your

Honor, P70.82 per


square meter was the
multiple for the 1,141
square meters.
Q That was your
professional opinion?
A Yes, your Honor.
Q One more time. You
estimated professional
opinion at that time, the
rental value would
be. . . . . . . .
A I came out with the
figure P969,970.49 for
the year.
Q Is this per square
meter or for the entire
property?
A For the entire
property divided by 12,
we come out with
P80,825.64.
Q So, this would be our
fair rental on the
optimum condition?
A Yes, sir.
Q Now, our Lease
Contract there, Exhibit
6, tells us. . . . . . .
ATTY. BELO
Under the Lease
Contract is P92,437.20
a month.
PJ GARCHITORENA
Q If you say that the fair
rental value was
P80,000 but because of
the construction of the
particular nature of the
condition of the
Sta. Cruz Station or the
Carriedo Station, you
would use a factor of 5,
a multiple of 5, then
you would be talking
something like
P400,000 per month
rental. So on that basis,
the rental of the LRT
authority in favor of the
PGH was almost 1/4 as
much as you think the
rental should have
been?
ATTY. BELO

Objection, your Honor,


that is not the
conclusion. You see this
Honorable Court is
inputing the value as
station now but the
witness is testifying on
the fair market value at
that time.
PJ GARCHITORENA
Correct, but we also ask
him to input now the
character of the railway
station. That is why he
said the railway station
would make it much
valuable 5 times more.
WITNESS
A Yes, if they would use
that space available for
shops.
PJ GARCHITORENA
Yes, of course. We are
talking here of all other
things being equal
except the fact that we
have a railroad station,
a cross terminal.
So, here we are saying
that P400,000 a month
would be a good rental?
A Will they be putting
up the building?
PJ GARCHITORENA.
It does not matter. See,
if the LRT put up the
building it will ask for a
fair return of the
property. Whoever put
up the building will
charge for the rent. . . .
WITNESS
A If the tenant will put
up the building his
capital outlay on his
own will be beside the
rent. While if the LRT
will put up the building,
then the rent. . . .
PJ GARCHITORENA
That is correct, we are
talking here about cost
of money. There is a
beautiful phrase for that
in finance, how you

project the value of the


money- etc.
So, these are our figures
now, P400,000 more or
less is a good asking
price or fair rental price
insofar as the LRT
authority were
concerned.
Nonetheless, we are
told that the monthly
rental for the Sub-Lease
in the Sta. Cruz property
is how much per much,
for the entire property?
A The Lease Contract is
P255,797.50 a month.
Q For the entire
property?
A For the entire
property.
Q So, based on your
estimates it will still be
1/2 as much as you
would charge if you
were the LRT on the
basis of the input? So,
even if sub-leased to
Trans-National
Construction
Corporation was still 50
per cent cheaper than
what you would have
charge if you were
going to advice the LRT
as to what the rental
would be.
A It would be that way,
your Honor, if they
would put up the shop.
This is just a land.
PJ GARCHITORENA
Q Except that we know
now that what was
being leased was not
land but the facilities
which would be
available in the LRT
terminal.
WITNESS
A The building was built
by the lessee. 50
The court questions were far from being clarificatory.
They were, in the main, queries that have no basis on
the records. It has been said that purely abstract
questions, assuming facts or theories for which there is
no foundation in the evidence, are not admissible as a
matter of right, although such questions may be

permitted on cross-examination for the purpose of


testing the knowledge of the witness as to the subject
on which he has testified. 51 But cross-examination is
the exclusive function of the advocate. Thus, any trend
of court questioning which shows even a slight
semblance of cross-examination is already offensive to
fundamental requirements of due process, for, this
Court in "People v. Opida" 52 has admonished that: ". . .
the judge must not only be impartial but must also
appear to be impartial, to give added assurance to the
parties that his decision will be just. The parties are
entitled to no less than this, as a minimum guaranty of
due process." In "Tabuena vs. Sandiganbayan", 53 this
Court en banc highlighted the following observation
and limitations of a judge's/justice's participation in
the conduct of the trial. Thus:
. . . It is indeed an impressive proportion
(referring to the volume of questions of the
trial judge), but no such mathematical
computation is of itself determinative.
However, taking all this in conjunction with
the long and vigorous examination of the
defendant himself by the judge, . . . , we
fear that in its zeal for arriving at the facts
the court here conveyed to the jury too
strong an impression of the court's belief in
the defendant's probable guilt to permit the
jury freely to perform its own function of
independent determination of the facts.
xxx xxx xxx
This Court has acknowledged the right of a
trial judge to question witnesses with a view
to satisfying his mind upon any material
point which presents itself during the trial of
a case over which he presides. But not only
should his examination be limited to asking
"clarificatory" questions, the right should be
sparingly and judiciously used; for the rule is
that the court should stay out of it as much
as possible, neither interfering nor
intervening in the conduct of the trial.
xxx xxx xxx
A trial judge should not participate in the
examination of witnesses as to create the
impression that he is allied with the
prosecution.
We doubt not that the sole motive of the
learned judge was to ascertain the truth of
the transaction, but it is never proper for a
judge to discharge the duties of a
prosecuting attorney. However anxious a
judge may be for the enforcement of the
law, he should always remember that he is
as much judge in behalf of the defendant
accused of crime, and whose liberty is in
jeopardy, as he is judge in behalf of the
state, for the purpose of safeguarding the
interests of society.
Ordinarily it is not good practice for the
presiding judge himself to examine
witnesses at length. The circumstances may

be such in a given case as to justify the


court in so doing. . . . This court, however,
has more than once said that the
examination of witnesses is the more
appropriate function of counsel, and the
instances are rare and the conditions
exceptional which will justify the presiding
judge in conducting an extensive
examination. It is always embarrassing for
counsel to object to what he may deem
improper questions by the court. Then, in
conducting a lengthy examination, it would
be almost impossible for the judge to
preserve a judicial attitude. While he is not a
mere figurehead or umpire in a trial, and it is
his duty to see that justice is done, he will
usually not find it necessary to conduct such
examinations. The extent to which this shall
be done must largely be a matter of
discretion, to be determined by the
circumstances of each particular case, but in
so doing he must not forget the function of
the judge and assume that of an
advocate. . . .
While it is true that the manner in which a
witness shall be examined is largely in the
discretion of the trial judge, it must be
understood that we have not adopted in this
country the practice of making the presiding
judge the chief inquisitor. It is better to
observe our time-honored custom of orderly
judicial procedure, even at the expense of
occasional delays. . . . The judge is an
important figure in the trial of a cause, and
while he has the right, and it is often his
duty, to question witnesses to the end that
justice shall prevail, we can conceive of no
other reason, for him to take the trial of the
cause out of the hands of counsel.
The examination of witnesses is the more
appropriate function of counsel, and it is
believed the instances are rare and the
conditions exceptional in a high degree
which will justify the presiding judge in
entering upon and conducting an extended
examination of a witness, and that the
exercise of a sound discretion will seldom
deem such action necessary or advisable.
He [the judge] may properly intervene in a
trial of a case to promote expedition, and
prevent unnecessary waste of time, or to
clear up some obscurity, but he should bear
in mind that his undue interference,
impatience, or participation in the
examination of witnesses, or a severe
attitude on his part toward witnesses,
especially those who are excited or terrified
by the unusual circumstances of a trial, may
tend to prevent the proper presentation of
the cause, or the ascertainment of the truth
in respect thereto.
The impartiality of the judge his
avoidance of the appearance of becoming

the advocate of either one side or the other


of the pending controversy is a fundamental
and essential rule of special importance in
criminal cases. . . . .
Our courts, while never unmindful of their
primary duty to administer justice, without
fear or favor, and to dispose of these cases
speedily and in as inexpensive a manner as
is possible for the court and the parties,
should refrain from showing any semblance
of one-sided or more or less partial attitude
in order not to create any false impression in
the minds of the litigants. For obvious
reasons, it is the bounden duty of all to
strive for the preservation of the people's
faith in our courts.
Time and again this Court has declared that
due process requires no less than the cold
neutrality of an impartial judge. Bolstering
this requirement, we have added that the
judge must not only be impartial but must
also appear to be impartial, to give added
assurance to the parties that his decision
will be just. The parties are entitled to no
less than this, as a minimum guaranty of
due process.
Let it thus be stressed anew at this juncture that
convictions are based on the actual commission of
crimes, to be ascertained with the pure objectivity of
the true judge who must uphold the law for all without
favor or malice and always with justice. 54

Finally, it is incorrect for the Sandiganbayan, per its Resolution of


November 13, 1996 denying petitioner Dans' motion for
reconsideration, to say, in response to petitioner's objection
anent Presiding Justice Garchitorena's questions during the trial,
that:
. . . It is now too late in the day to object to
the alleged leading, misleading, and
badgering questions of the Presiding Justice
Garchitorena and to ask to expunge the
answers thereto from the record. Needless
to say, Engr. Dans should have done so
when the supposed objectionable nature of
the questions and/or answers were
propounded or given. As it happened, he did
not even raise his objections at the close of
the testimony of Mr. Cuervo. He did not also
ask re-direct questions to correct whatever
mistakes or misimpressions allegedly crept
into Mr. Cuervo's testimony. Instead, he
formally offered the entire testimony without
making any exceptions or reservations. 55
In "Tabuena", this Court took cognizance of the
Sandiganbayan's active participation in the
examination of witnesses even when petitioners did
not raise this issue at all either in the trial court or in
their appeal before us, justifying the same under the
doctrine that "an appeal throws the whole case open
to review, and it becomes the duty of the appellate
court to correct such errors as may be found in the
judgment appealed from whether they are made the
subject of assignments of error or not." 56 What more

when, as in this case, this objection has been raised


while the case is still within the power of review of the
trial court.
Thus, purely from the legal standpoint, with the evident
weakness of the prosecution's case and the procedural
aberrations that marred the trial, it is simply unsound and
impossible to treat differently each petitioner who found
themselves in one and the same situation. Indeed, our regained
democracy, creditably, is successfully bailing us out from the
ruins of the authoritarian regime, and it expects that government
efforts in going after the plunderers of that dark past remain
unrelenting and decisive. But let us not, in our anxiety to carry
out this duty, for a moment forget that our criminal justice
system is not a popularity contest where freedom and
punishment are determined merely by the fame or infamy of the
litigants. "The scales of justice", it has been aptly said, 57 "must
hang equal and, in fact, should even be tipped in favor of the
accused because of the constitutional presumption of
innocence. Needless to stress, this right is available to every
accused, whatever his present circumstance and no matter how
dark and repellent his past." Culpability for crimes must always
take its bearing from evidence and universal precepts of due
process lest we sacrifice in mocking shame once again the
very liberties we are defending.
I, therefore, vote also for the acquittal of petitioner Imelda R.
Marcos in Criminal Case No. 17450.
Melo, J., concurs and dissents.