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Republic of the Philippines

SUPREME COURT
Baguio City
THIRD DIVISION
G.R. No. 152364

April 15, 2010

ALEJANDRA S. LAZARO, assisted by her husband,


ISAURO M. LAZARO; LEONCIO D. SANTOS; ADOLFO
SANTOS; NENITA S. LACAR; ANGELINA S. SAGLES,
assisted by her husband, ALBERTO SANTOS, JR.; REGINA
SANTOS and FABIAN SANTOS, Petitioners,
vs.
MODESTA AGUSTIN, FILEMON AGUSTIN, VENANCIA
AGUSTIN, MARCELINA AGUSTIN, PAUL A. DALALO, NOEL
A. DALALO, GREGORIO AGUSTIN and BIENVENIDO
AGUSTIN, Respondents.
DECISION
PERALTA, J.:
Assailed in the present petition for review on certiorari is the
Decision1 dated February 21, 2002 of the Court of Appeals (CA)
in CA-G.R. SP No. 63321. The CA had affirmed, with
modification, the Decision2 dated February 6, 2001 of the
Regional Trial Court (RTC) of Laoag City, Branch 13, in Civil Case
No. 11951-13, which also affirmed, with modification, the
Decision3 dated January 6, 2000 of the Municipal Trial Court in
Cities (MTCC) of Laoag City, Branch 1, in Civil Case No. 2834.
The factual and procedural antecedents of the case are as
follows:
On November 4, 1998, herein petitioners filed against herein
respondents a Complaint4 for partition with the MTCC of Laoag
City, alleging as follows:
xxxx
II
That the plaintiffs and the defendants are the
descendants of the late Simeon C. Santos, married to
Trinidad Duldulao, who died intestate leaving a parcel
of land situated in the Barrio of Natividad Nstra. Sra.,
Municipality of Laoag, designated as Lot No. 10675 of
the Cadastral Survey of Laoag;
III
That Simeon C. Santos during his lifetime, married to
Trinidad Duldulao, begot four (4) legitimate children,
namely: Basilisa D. Santos, Alberto D. Santos, Leoncio
D. Santos and Alejandra D. Santos. Basilisa D. Santos,
[who] was married to Petronilo Agustin, is now
deceased; Alberto Santos, married to Rizalina
Guerrero, is now deceased, while Leoncio D. Santos,
married to Dictinia Tabeta, and Alejandra D. Santos
married to Isauro M. Lazaro, are still living;
IV

That in the desire of the children of Simeon C. Santos


from whom the parcel of land originated as owner, his
children, namely[:] Alberto, Leoncio and Alejandra, all
surnamed Santos, consented that the parcel of land
mentioned in paragraph II of this complaint be titled
in the name of Basilisa, the latter being the eldest and
so Original Certificate of Title No. 20742 in the name
of Basilisa Santos was obtained although it was
agreed among them that it did not and does not
necessarily mean that Basilisa Santos is the sole and
exclusive owner of this parcel of land, and as
embodied in the Title obtained in the name of Basilisa
Santos, the parcel of land is particularly described as
follows:
A parcel of land (Lot No. 10676 of the Cadastral
survey of Laoag), with the improvements thereon,
situated in the Barrio of Natividad Nstra. Sra.,
Municipality of Laoag. Bounded on the NE. by Lot No.
10677; on the SE. by Panganiban Street; on the SW.
by Lot No. 10672; and on NW. by Lot No. 1065,
containing an area of three hundred and one (301)
square meters, more or less, covered by Tax
Declaration No. 010-00224 for the year 1994 in the
names of Modesta Agustin, et al. with a market value
of P96,320.00 and an assessed value of P14,450.00.
V
That there is a residential house constructed on the
lot described in paragraph IV of this complaint and in
the construction of which plaintiff Alejandra Santos,
then still single, spent the amount of P68,308.60,
while Basilisa Santos and her children spent the
amount of P3,495.00. Afterwards, Alejandra Santos
got married to Isauro M. Lazaro who was employed in
a private company and when he retired from the
service, some additional constructions were made on
the residential house and lot such as a bedroom,
azotea, two (2) toilets, two (2) kitchens, a car garage,
the money spent for these additional constructions
came from the earnings of the spouses Alejandra
Santos-Lazaro and Isauro M. Lazaro. The said
residential house is now covered by Tax Declaration
No. 010-00225 in the names of Basilio Agustin
(should be Basilisa Agustin) and Alejandra Santos for
the year 1994 with a market value of P93,920.00 and
an assessed value of zero;
VI
That without the knowledge and consent of the
plaintiffs, the title of the lot described in paragraph IV
of the complaint was transferred into another title
which is now Transfer Certificate of Title No. T-20695
in the names of Modesta Agustin, Filemon Agustin,
Venancia Agustin, Marcelina Agustin, Monica Agustin,
Gregorio Agustin and Bienvenido Agustin who are the
children of the late Basilisa Santos-Agustin who are
herein named as defendants with Monica Agustin now
deceased represented by her children Paul A. Dalalo
and Noel A. Dalalo as defendants;
VII
That during the lifetime of Basilisa Santos-Agustin,
plaintiff Alejandra Santos-Lazaro informed the former,

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AGUSTIN, E. P. | 1

who are sisters, that the transfer of the title covering


the lot described in paragraph IV of this complaint in
the name of Basilisa Santos into the names of her
children would erroneously imply that the lot is solely
and exclusively owned by Basilisa Santos-Agustin's
children, but Basilisa Santos-Agustin replied [to]
plaintiff Alejandra Santos-Lazaro not to worry because
an affidavit was already executed by her recognizing
and specifying that her brothers Alberto Santos and
Leoncio Santos, and her sister Alejandra SantosLazaro would each get one fourth () share of the
lot;

Santos was the eldest sibling and she had to take


care of her brother Leoncio and sister Alejandra when
these siblings were not yet employed and Basilisa
allowed them to reside in the house constructed
within the lot; Alejandra Santos stayed in the house
up to the present with the agreement that she will
spend for the renovation of the house in lieu of
monthly rentals that she has to pay when she already
became financially able;
4. Prior to 1962, subject property was mortgaged by
Basilisa Santos Agustin to the Philippine National Bank
and the property was foreclosed by PNB when the
loan was not paid, hence, TCT No. (T-9522)-4495,
under the name of the Philippine National Bank was
issued (Annex "A"). Thereafter, Basilisa SantosAgustin, purchased it from the PNB and TCT No. T5662 was issued under her name (Annex "B"); the
property was later on transferred to her direct
descendants, the defendants herein as evidenced by
TCT No. T-20695 (Annex "C");

VIII
That in a move to determine if the children and the
heirs of Basilisa Santos-Agustin, namely: Modesta
Agustin, Filemon Agustin, Venancia Agustin, Marcelina
Agustin, Paul Dalalo and Noel Dalalo who are the
successors of their mother the late Monica Agustin,
Gregorio Agustin and Bienvenido Agustin would follow
the line of thinking of their mother and grandmother
of Paul A. Dalalo and Noel A. Dalalo on the shares of
the lot and residential house erected on it, the
plaintiffs initiated a partition in the barangay court
where the lot is situated described in paragraph IV of
this complaint, but that the children of Basilisa
Santos-Agustin and her grandchildren Paul A. Dalalo
and Noel A. Dalalo refused and opposed the partition
claiming that they are the sole and exclusive owners
of the lot being that the lot is now titled in their
names, and hence there was no settlement as shown
by the certification of the barangay court hereto
attached as annex "A";

x x x x7
Respondents then prayed that petitioners' complaint be
dismissed. In their Counterclaim, respondents asked the court to
direct petitioners to pay reasonable compensation for the latter's
use of the disputed property, exemplary and moral damages,
attorney's fees, and costs of suit.
After the issues were joined and the pre-trial was terminated,
trial on the merits ensued.
On January 6, 2000, the MTCC rendered its Decision8 dismissing
the complaint and denying petitioners' prayer for partition.

IX
That plaintiffs now invoke the intervention of the
court to partition the lot in accordance with the law
on intestate succession and to partition the residential
house as specified below. x x x
x x x x5
Petitioners also prayed for the grant of attorney's fees, moral
and exemplary damages, and costs of suit.
Herein respondents filed their Answer with Counterclaim,6 raising
the following as their Special/Affirmative Defenses:
1. The subject parcel of land is owned exclusively by
the defendants as heirs of the late Basilisa Santos,
wife of Petronilo Agustin, who was the original
registered owner of the property evidenced by OCT
No. 20742; the plaintiffs never became owners of said
land. There was never any agreement between the
ascendants of the plaintiffs and defendants, neither is
there any agreement between the plaintiffs and
defendants themselves that in the ownership, the
plaintiffs have a share over the lot;
2. The defendants are the ones paying for the real
estate taxes of said land;
3. Some of the plaintiffs were able to stay on the
subject house because defendants' mother Basilisa

The MTCC ruled, among others, that no evidentiary value could


be given to the affidavit allegedly executed by Basilisa, wherein
she purportedly acknowledged her co-ownership of the subject
property with her siblings Alberto, Leoncio and Alejandra,
because the affiant was not presented on the witness stand,
such that all the statements made in her affidavit were hearsay.
Moreover, the MTCC held that two credible witnesses testified in
plain, simple and straightforward manner that at the time the
affidavit was supposed to have been signed and sworn to before
the notary public, Basilisa was already bedridden and an invalid
who could not even raise her hand to feed herself. In addition,
the MTCC also gave credence to the testimony of the notary
public, before whom the document was supposedly signed and
sworn to, that the said affidavit was already complete and
thumbmarked when the same was presented to him by a person
who claimed to be Basilisa.
Petitioners filed an appeal with the RTC of Laoag City.
On February 6, 2001 the RTC issued a Decision9 affirming, with
modification, the judgment of the MTCC. The RTC found that the
house erected on the disputed lot was built and renovated by
petitioners in good faith. As a consequence, the RTC held that
petitioners were entitled to indemnity representing the costs of
the construction and renovation of the said house. The
dispositive portion of the RTC Decision, thus, reads:
WHEREFORE, the decision of the lower court is hereby affirmed
with the modification directing the appellees [herein

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AGUSTIN, E. P. | 2

respondents] to indemnify the appellants [herein petitioners] in


the amount of P68,308.60 as proved by them.
Considering the apparent error of the lower court in quoting the
questioned lot as Lot No. 10675, the same is hereby corrected
so as to reflect the correct lot number as Lot No. 10676 to
conform to the evidence presented.
SO ORDERED.10
Aggrieved by the RTC Decision, petitioners filed a petition for
review with the CA.
On February 21, 2002, the CA issued its presently assailed
Decision disposing as follows:
WHEREFORE, the decision dated February 6, 2001 rendered in
Civil Case No. 11951-13 is hereby AFFIRMED subject to the
MODIFICATION that appellees [herein respondents] pay the
amount of P68,308.60 in indemnity solely to appellant Alejandra
Santos-Lazaro.
SO ORDERED.11
Hence, the instant petition based on the following grounds:
I. THE SWORN STATEMENT OF BASILISA S. AGUSTIN IS A
DECLARATION AGAINST INTEREST WHICH ESTABLISHES THE
CO-OWNERSHIP OF LOT NO. 10676 BY AND AMONG THE
PETITIONERS AND RESPONDENTS AS HEIRS OF THE LATE
SIMEON C. SANTOS.12
II. THE CO-OWNERSHIP OF LOT NO. 10676 BY AND AMONG
BASILISA S. AGUSTIN, ALBERTO D. SANTOS, ALEJANDRA S.
LAZARO AND LEONCIO D. SANTOS DID NOT TERMINATE AS A
RESULT OF THE TRANSFER OF THE LOT'S OWNERSHIP
PRECIPITATED BY ACTS OF BASILISA S. AGUSTIN WITH
RESPECT TO THE SUBJECT PROPERTY.13
III. PETITIONER ALEJANDRA S. LAZARO IS A CO-OWNER OF
THE RESIDENTIAL HOUSE ON LOT NO. 10676 NOT MERELY A
BUILDER IN GOOD FAITH WITH RESPECT THERETO AND AS
SUCH, IS ENTITLED TO A PARTITION OF THE SUBJECT
HOUSE.14
In their first assigned error, petitioners contend that Basilisa's
sworn statement which recognizes her siblings' share in the
disputed property is a declaration against interest which is one
of the recognized exceptions to the hearsay rule. Petitioners
argue that since the sworn statement was duly notarized, it
should be admitted in court without further proof of its due
execution and authenticity; that the testimonies of Basilisa's
nurse and physician cannot qualify as clear and convincing
evidence which could overthrow such notarized document; that
the notary public cannot impugn the same document which he
notarized for to do so would render notarized documents
worthless and unreliable resulting in prejudice to the public.
As to the second assigned error, petitioners aver that their coownership of the questioned property with Basilisa did not cease
to exist when the Philippine National Bank (PNB) consolidated its
ownership over the said parcel of land. Petitioners assert that
they did not lose their share in the property co-owned when
their share was mortgaged by Basilisa without their knowledge
and consent; that the mortgage was limited only to the portion

that may be allotted to Basilisa upon termination of their coownership; that PNB acquired ownership only of the share
pertaining to Basilisa; that when Basilisa bought back the
property from PNB, she simply re-acquired the portion pertaining
to her and simply resumed co-ownership of the property with
her siblings. Petitioners also contend that Basilisa's children did
not acquire ownership of the subject lot by prescription, and that
neither Basilisa nor respondents repudiated their co-ownership.
Anent the third assignment of error, petitioners argue that
Alejandra Lazaro, being a co-owner of the disputed parcel of
land and not simply a builder in good faith, is entitled to a
partition of the subject residential house.
At the outset, it bears to point out that it is wrong for petitioners
to argue that Basilisa's alleged sworn statement is a declaration
against interest. It is not a declaration against interest. Instead,
it is an admission against interest.1avvphi1
Indeed, there is a vital distinction between admissions against
interest and declarations against interest. Admissions against
interest are those made by a party to a litigation or by one in
privity with or identified in legal interest with such party, and are
admissible whether or not the declarant is available as a
witness.15 Declarations against interest are those made by a
person who is neither a party nor in privity with a party to the
suit, are secondary evidence, and constitute an exception to the
hearsay rule. They are admissible only when the declarant is
unavailable as a witness.16 In the present case, since Basilisa is
respondents' predecessor-in-interest and is, thus, in privity with
the latter's legal interest, the former's sworn statement, if
proven genuine and duly executed, should be considered as an
admission against interest.
A cursory reading of the subject sworn statement also reveals
that it refers to a parcel of land denominated as Lot No. 10678
while the property being disputed is Lot No. 10676.17 On this
basis, it cannot be concluded with certainty that the property
being referred to in the sworn statement is the same property
claimed by petitioners.
Having made the foregoing observations and discussions, the
question that arises is whether the subject sworn statement,
granting that it refers to the property being disputed in the
present case, can be given full faith and credence in view of the
issues raised regarding its genuineness and due execution.
The Court rules in the negative.
Settled is the rule that generally, a notarized document carries
the evidentiary weight conferred upon it with respect to its due
execution, and documents acknowledged before a notary public
have in their favor the presumption of regularity.18 However, this
presumption is not absolute and may be rebutted by clear and
convincing evidence to the contrary. 19
Moreover, not all notarized documents are exempted from the
rule on authentication.20 Thus, an affidavit does not
automatically become a public document just because it contains
a notarial jurat.21 The presumptions that attach to notarized
documents can be affirmed only so long as it is beyond dispute
that the notarization was regular.22
However, a question involving the regularity of notarization as
well as the due execution of the subject sworn statement of
Basilisa would require an inquiry into the appreciation of

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AGUSTIN, E. P. | 3

evidence by the trial court. It is not the function of this Court to


review, examine and evaluate or weigh the probative value of
the evidence presented. A question of fact would arise in such
event. Settled is the rule that questions of fact cannot be raised
in an appeal via certiorari before the Supreme Court and are not
proper for its consideration.23 The rationale behind this doctrine
is that a review of the findings of fact of the trial courts and the
appellate tribunal is not a function this Court normally
undertakes.24 The Court will not weigh the evidence all over
again unless there is a showing that the findings of the lower
courts are totally devoid of support or are clearly erroneous so
as to constitute serious abuse of discretion.25 Although there are
recognized exceptions26 to this rule, none exists in the present
case to justify a departure therefrom.
Petitioners rely heavily on the presumption of regularity
accorded by law to notarized documents. While indeed, a
notarized document enjoys this presumption, the fact that a
deed is notarized is not a guarantee of the validity of its
contents.27 As earlier discussed, the presumption is not absolute
and may be rebutted by clear and convincing evidence to the
contrary.28 The presumption cannot be made to apply to the
present case because the regularity in the execution of the
sworn statement was challenged in the proceedings below
where its prima facie validity was overthrown by the highly
questionable circumstances under which it was supposedly
executed, as well as the testimonies of witnesses who testified
on the improbability of execution of the sworn statement, as well
as on the physical condition of the signatory, at the time the
questioned document was supposedly executed. The trial and
appellate courts were unanimous in giving credence to the
testimonies of these witnesses. The Court has repeatedly held
that it will not interfere with the trial court's determination of the
credibility of witnesses, unless there appears on record some
fact or circumstance of weight and influence which has been
overlooked or the significance of which has been
misinterpreted.29 The reason for this is that the trial court was in
a better position to do so, because it heard the witnesses testify
before it and had every opportunity to observe their demeanor
and deportment on the witness stand.30

and credit upon its face. Courts, administrative agencies and the
public at large must be able to rely upon the acknowledgment
executed before a notary public and appended to a private
instrument.34 Hence, a notary public must discharge his powers
and duties, which are impressed with public interest, with
accuracy and fidelity.35 A notary public should not notarize a
document unless the persons who signed the same are the very
same persons who executed and personally appeared before him
to attest to the contents and truth of what are stated therein.36
In the instant case, the notary public should have exercised
utmost diligence in ascertaining the true identity of the person
executing the said sworn statement. However, the notary public
did not comply with this requirement. He simply relied on the
affirmative answers of the person appearing before him attesting
that she was Basilisa Santos; that the contents of the sworn
statement are true; and that the thumbmark appearing on the
said document was hers. However, this would not suffice. He
could have further asked the person who appeared before him
to produce any identification to prove that she was indeed
Basilisa Santos, considering that the said person was not
personally known to him, and that the thumbmark appearing on
the document sought to be notarized was not affixed in his
presence. But he did not. Thus, the lower courts did not commit
any error in not giving evidentiary weight to the subject sworn
statement.
The second and third assigned errors proceed on the
presumption that petitioners are co-owners of the disputed
property. Since the Court has already ruled that the lower courts
did not err in finding that petitioners failed to prove their claim
that they were co-owners of the said property, there is no longer
any need to discuss the other assigned errors.
WHEREFORE, the petition is DENIED. The February 21, 2002
Decision of the Court of Appeals in CA-G.R. SP No. 63321 is
AFFIRMED.
SO ORDERED.

Considering the foregoing, the Court finds no reason to reverse


the rulings of the MTCC, the RTC and the CA. Although the
questioned sworn statement is a public document having in its
favor the presumption of regularity, such presumption was
adequately refuted by competent witnesses.
The Court further agrees with the ruling of the RTC that:
The testimony of [the notary public] Atty. Angel Respicio did not
suffice to rebut the evidence of the appellees considering his
admission that the affidavit was already thumbmarked when
presented to him by one who claimed to be Basilisa Santos and
whom, the witness said he did not know personally. Further,
what makes the documents suspect is the fact that it was
subscribed on the same date as the financial statement of
Alejandra Santos.
It may not be amiss to point out, at this juncture, that the
principal function of a notary public is to authenticate
documents.31 When a notary public certifies to the due execution
and delivery of a document under his hand and seal, he gives
the document the force of evidence.32 Indeed, one of the
purposes of requiring documents to be acknowledged before a
notary public, in addition to the solemnity which should surround
the execution and delivery of documents, is to authorize such
documents to be given without further proof of their execution
and delivery.33 A notarial document is by law entitled to full faith

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AGUSTIN, E. P. | 4

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 177572

February 26, 2008

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
JUANITO DELA CRUZ Y RIVERA, accused-appellant.
DECISION
CHICO-NAZARIO, J.:
Of the so-called heinous crimes, none perhaps more
deeply provokes feelings of outrage, detestation, and
disgust than incestuous rape. It is indeed difficult to
find a more perverted form of sexual aberration than
this bestial felony. It is undeserving of societys
compassion or tolerance.1

That during the period January to December


1997, in XXX, Philippines, and within the jurisdiction
of this Honorable Court, above-named accused, with
lewd designs and by taking advantage of his moral
ascendancy over his own daughter, AAA, and by
means of force, threat and intimidation did, then and
there, willfully, unlawfully, and feloniously lie and
have sexual intercourse with AAA, against her will.
CRIMINAL CASE NO. 115034-H
That on or about July 24, 1998, in XXX, Philippines,
and within the jurisdiction of this Honorable Court,
above-named accused, with lewd designs and by
taking advantage of his moral ascendancy over his
own daughter, AAA, and by means of force, threat
and intimidation did, then and there, willfully,
unlawfully, and feloniously lie and have sexual
intercourse with AAA, against her will.
Subsequently, these cases were consolidated for joint trial.
When arraigned on 21 April 1999, appellant, with the assistance
of counsel de oficio, pleaded "Not Guilty" to each of the
charges.6 Thereafter, trial on the merits ensued.

We are called here to review the Decision rendered by the Court


of Appeals in CA-G.R. CR-HC No. 02407 dated 26 October 2006,2
affirming with modification the Decision of the Manila Regional
Trial Court (RTC), Branch 163, in Criminal Cases No. 115031-H,
No. 115032-H, No. 115033-H, and No. 115034-H dated 21
February 2000,3 convicting the accused-appellant Juanito R. dela
Cruz of raping his own daughter, AAA,4 with the use of force and
intimidation.

The prosecution presented as witnesses AAA and Dr. Armie


Soreto-Umil (Dr. Umil). Their testimonies are as follows:

The records bear the following facts:

On 8 March 1995, AAA went home from work to celebrate with


her family the birthday of her younger brother, CCC. Later that
evening, she slept inside the house, while appellant had a
drinking session with some friends outside the house. BBB was
then peddling several merchandise at the Quirino Memorial
Hospital (QMH). Subsequently, appellant entered the house and
lay down beside her. Appellant fondled her breast and vagina.
She resisted but to no avail because appellant punched her in
the stomach and slapped her face. Appellant then placed himself
on top of her and inserted his penis into her vagina. Thereafter,
DDD, her elder brother, entered the house and saw appellant on
top of her. Afraid of appellant, DDD ignored the two. The
following day, DDD told AAA that he saw the incident and that
he will report it to appellants sister, EEE. AAA did not inform
BBB of the incident because of her fear that appellant would
make good his threat to kill her and the rest of the family
members.8

On 9 November 1998, four separate informations5 were filed


with the RTC against appellant for rape, allegedly committed as
follows:
CRIMINAL CASE NO. 115031-H
That sometime in March 1995, in XXX, Philippines,
and within the jurisdiction of this Honorable Court,
above-named accused, with lewd designs and by
taking advantage of his moral ascendancy over his
own daughter, AAA, then sixteen (16) years old and
by means of force, threat and intimidation, did, then
and there, willfully, unlawfully, and feloniously lie and
have sexual intercourse with AAA, against her will.
CRIMINAL CASE NO. 115032-H
That during the period January to December
1996, in XXX, Philippines, and within the jurisdiction
of this Honorable Court, above-named accused, with
lewd designs and by taking advantage of his moral
ascendancy over his own daughter, AAA, then
seventeen (17) years old and by means of force,
threat and intimidation did, then and there, willfully,
unlawfully, and feloniously lie and have sexual
intercourse with AAA, against her will.
CRIMINAL CASE NO. 115033-H

AAA testified that appellant is her father and BBB is her mother;
that appellant and BBB are married; that she is the fourth child
in a brood of five children born to appellant and BBB; and that
she resided with her family at XXX.7

Again, in 1996, appellant, with the use of force, threat and


intimidation, raped AAA six times on several occasions inside the
house. BBB was selling goods at the QMH during the commission
of these rapes.9
Likewise, in 1997, appellant, by applying the same physical
harm, threat and intimidation, sexually assaulted her several
times inside the house. BBB was also out of the house when
these bestial acts transpired.10
On 24 July 1998, at about 1:00 in the morning, AAA and her
siblings were sleeping inside a nipa hut owned by her family and
located in front of their house, while appellant was drinking
liquor with a certain Rey and Benito Casaljay outside the house.
After the drinking session, Rey and Benito left appellant.

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AGUSTIN, E. P. | 5

Appellant then entered the nipa hut, woke her up, and started to
make sexual advances on her. She tried to resist appellants
onslaught but failed because appellant punched her in the
stomach. Appellant went on top of her and inserted his penis
into her vagina. After satisfying his lust, appellant warned her
not to tell anyone of the incident or he would kill her and the
rest of the family members.11
Upon being informed by EEE of the incidents, BBB, on 30 July
1998, accompanied AAA to the National Bureau of Investigation
(NBI) office at Taft Avenue, Manila, and reported the heinous
acts of appellant. AAA also executed a Sinumpaang Salaysay
regarding the incidents. Thereupon, appellant was arrested and
charged with rape.12
Dr. Umil narrated that she conducted a genital examination on
AAA upon the request of NBI Supervising Agent Rosalina EspinaChiong. Her findings as stated in her medico-legal report are: (1)
no evident sign of any extra-genital physical injuries noted on
the body of the subject at the time of the examination; and (2)
hymen, intact, but distensible, and its orifice wide (2.5 cm. in
diameter) as to allow complete penetration by an average-sized
adult Filipino male organ in full erection without producing
hymenal injury.13
The prosecution also adduced documentary evidence to buttress
the foregoing testimonies of prosecution witnesses, to wit: (1)
Sinumpaang Salaysay of AAA;14 (2) Medico-Legal Report
regarding AAA signed and issued by Dr. Umali;15 and (3) a letter
written by appellant in a Marlboro cigarette wrapper addressed
to AAA asking her forgiveness.16
For its part, the defense proffered the lone testimony of
appellant to refute the foregoing accusations.
Appellant divulged that AAA is his daughter and BBB is his wife;
that he did not rape AAA on 8 March 1995; that a birthday
celebration for one of his children, CCC, was held at their house
on 8 March 1995 which was attended by several friends; that he
did not rape AAA in 1996, 1997, and on 24 July 1998; that BBB,
AAA and his other children resided with him in their house at
XXX from 8 March 1995 to 24 July 1998; that he had a drinking
spree with Rey and Benito at nighttime during the said periods;
and that he wrote a letter to AAA but denied that it was the
same one presented by the prosecution. 17
The defense also offered as its sole documentary evidence the
Medico-Legal Report issued and signed by Dr. Umil.
After trial, the RTC rendered a Decision finding appellant guilty
of rape as alleged in the four informations. In Criminal Cases No.
115031-H and No. 115032-H, the Court imposed on appellant
the penalty of death. In Criminal Cases No. 115033-H and No.
115034-H, appellant was sentenced to reclusion perpetua. The
dispositive portion of the decision reads:
WHEREFORE, this Court finds accused Juanito dela
Cruz y Rivera, as follows:
1. In Criminal Case No. 115031-H, GUILTY as
principal of the offense of qualified rape penalized
under then Article 335 of the Revised Penal Code, as
amended by R.A. 7659, and sentences him to suffer
the supreme penalty of DEATH. Accused is further
ordered to pay the offended person, AAA, the amount
of Seventy-Five Thousand Pesos (P75,000.00) as civil

indemnity plus Fifty Thousand Pesos (P50,000.00) as


moral damages.
2. In Criminal Case No. 115032-H, GUILTY as
principal of the offense of qualified rape penalized
under Article 335 of the Revised Penal Code, as
amended by R.A. 7659, and sentences him to suffer
the supreme penalty of DEATH. Accused is further
ordered to pay AAA the amount of Seventy-Five
Thousand Pesos (P75,000.00) as civil indemnity plus
Fifty Thousand Pesos (P50,000.00) as moral
damages.
3. In Criminal Case No. 115033-H, GUILTY as
principal of the offense of simple rape penalized
under Article 335 of the Revised Penal Code, as
amended by R.A. 7659 [Now Art. 266-A and Art. 266B under R.A. 8353], and sentences him to suffer the
penalty of reclusion perpetua. Accused is further
ordered to pay AAA the amount of Fifty Thousand
Pesos (P50,000.00) as civil indemnity plus the amount
of Fifty Thousand Pesos (P50,000.00) as moral
damages.
4. In Criminal Case No. 115034-H, GUILTY as
principal of the offense of simple rape penalized
under Article 266-B of the Revised Penal Code, as
amended, and sentences him to suffer the penalty of
reclusion perpetua. Accused is further ordered to pay
AAA the sum of Fifty Thousand Pesos (P50,000.00) as
civil indemnity and the amount of Fifty Thousand
Pesos (P50,000.00) as moral damages.18
In view of the death penalty it imposed on appellant in Criminal
Cases No. 115031-H and 115032-H, the RTC forwarded the
records of the cases to us for automatic review. However,
pursuant to our ruling in People v. Mateo,19 we remanded the
cases to the Court of Appeals for disposition. On 26 October
2006, the appellate court promulgated its Decision affirming with
modifications the RTC decision. It held that appellant is liable
only for simple rape and not qualified rape in Criminal Cases No.
115031-H and No. 115032-H because the qualifying
circumstance of AAAs minority was not duly proven by the
prosecution. Thus:
WHEREFORE, the February 12, 2000 Joint Decision,
as far as Criminal Case No. 115033-H and Criminal
Case No. 115034-H are concerned, is hereby
AFFIRMED.
In Criminal Case No. 115031-H and Criminal Case No.
115032-H, finding the accused guilty beyond
reasonable doubt of two acts of simple rape, the
Court hereby sentences him to suffer the penalty of
Reclusion Perpetua, to pay civil indemnity in the
amount of P50,000.00, and to pay moral damages in
the amount of P50,000.00 in each case.20
In his Brief, appellant assigns the following errors:
I.
THE TRIAL COURT ERRED IN GIVING CREDENCE TO
THE UNBELIEVABLE AND
UNCORROBORATED
TESTIMONY OF COMPLAINANT AAA;

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 6

II.

Q.

THE TRIAL COURT ERRED IN CONVICTING


ACCUSED-APPELLANT JUANITO DELA CRUZ OF FOUR
(4) COUNTS OF RAPE DESPITE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.21

A.
I was struggling and he boxed me on my
stomach.

Rape is committed when the accused has carnal knowledge of


the victim by force or intimidation and without consent.22
In determining the guilt or innocence of the accused in cases of
rape, the victims testimony is crucial in view of the intrinsic
nature of the crime in which only two persons are normally
involved. The accused may be convicted on the basis of the
victims lone and uncorroborated testimony provided it is clear,
positive, convincing, and consistent with human nature.23
We have painstakingly reviewed the records and found that
appellant had carnal knowledge of AAA through force and
intimidation on the dates stated in the informations. In her court
testimony, AAA positively and categorically identified the
appellant as the one who ravished her, viz:

What do you mean he hurt you?

Q.
And, after that raped (sic) incident, what
happened?
A.

I was shocked, mam.

Q.
Was that the first time that your father raped
you?
A.

No, mam.

Q.

When was the first time?

A.

On March 8, 1995, mam.

Q
Why do you recall March 8, 1995 as the first
time that your father raped you?

Q.
Now, on July 24, 1998 at about 1:00 in the
morning, do you remember where [you were]?

A
That time I was at my work and I went home
because my brother is (sic) celebrating his birthday.

A.

Yes, mam.

Q
When did that rape that happened on March 8,
1995?

Q.

Where were you then?

A.

I was in our house, mam.

Q.

Where is your house located?

A.

At XXX.

In our house, mam.

xxxx
Q
Now, on March 8, 1995 when your father raped
you, what did you do, if any?

Q.
Do you recall of an unusual incident that
happened on July 24, 1998 at your house?

A
I cannot do anything, mam, because he get (sic)
what he wants.

A.

Yes, mam.

COURT:

Q.

What was that unusual incident?

Q
When you were raped on March 8, 1995, what
did you do when you were being raped?

A.

At 1:00 in the early morning my father

"ginapangan niya ako."


Q.

What do you mean "ginapangan ka?"

A.

He raped me, mam.

Q.

How did your father rape you?

A.

He inserted his penis inside my vagina.

Q.
When he inserted his penis into your vagina,
what did you do?
A.
I was not able to do anything because he
already hurt me.

A
I was struggling away from him but he harmed
me.
FISCAL:
Q

How did your father hurt you?

He boxed me on my stomach.

Q
And, after that raped (sic) incident, what
happened?
A

I keep silent, mam.

Q
Did you not try to tell your mother about that
incident?

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 7

No, mam.

Q.

What was that unusual incident?

Why did you not tell your mother?

A.

About the rape, mam.

I was afraid, mam.

Q.

When was that if you can recall?

Why?

A.
I cannot remember, mam, what I remember
was only the last raped (sic).

Because he was threatening to kill my family.

COURT:

xxxx
Q.
What about in the year 1996, was there an
unusual incident that happened between you and
your father?

Q.
But, how many times have you been raped in
1997?
A.

Many times, your Honor.

A.

Yes, mam, there is.

Q.

You cannot count it?

Q.

Can you recall on what month?

A.

No, your Honor.

A.

I cannot remember, mam.

xxxx

Q.

But the same incident happened in 1996?

A.

Yes, mam.

Q.
Now, madam witness, in the first occasion that
you were raped by your father, did he tell you
anything before raping you?

Q.
If you can recall, how many times did he rape
you in the year 1996?
A.

Six (6) times, mam.

xxxx

A.

None, sir.

Q.
In other words, you would like to tell the court
that he does not say anything he just raped you
without saying anything?
A.
First, he was not able to say anything but after
he raped me he said something.

Q.

Was that six (6) times done on one occasion?

A.

No, mam.

Q.

So, there were several rapes?

A.
She (sic) told me not to report the incident
because she (sic) will kill my family.

A.

Yes, mam.

Q.

Is that all what your father told you?

A.

Yes, your Honor.

Q.

Q.
And, where did these six (6) rapes that
happened in 1996 took place?

And, what did he tell you?

xxxx
A.

In our house also, mam.

Q.

Also in XXX?

Q.
You did not tell (sic) your father why he is doing
it to you?

A.

Yes, mam.

A.

I told him but he did not listen to me.

xxxx

xxxx

Q.
What about in 1997, do you recall of an
unusual incident that happened between you and
your father?

Q.
You said that you were punched in the stomach
by your father prior to the sexual attacked (sic) on
you on July 24, 1998, isnt it? Other than being
punched at the stomach, what else did he do, if any?

A.

Yes, mam.

A.

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

Sinasampal po.

AGUSTIN, E. P. | 8

Q.
How did you describe the pain when you were
hit at the stomach?

nothing to do with the essential fact of the commission of the


crime carnal knowledge through force and intimidation. 32

A.

I lost consciousness, sir.

Q.

So, it was very strong, is that correct?

A.

Yes, sir.

The supposed contradictions cited by appellant refer to minor


details and are evidently beyond the essential fact of the
commission of rape because they do not pertain to the actual
sexual assault itself that very moment when appellant was
forcing himself on AAA. Besides, these minor inconsistencies
even bolster the credibility of AAA as one could hardly doubt that
her testimony was contrived.33

Q.
And, he did it with the clench[ed] fist, is that
correct?
A.

Yes, sir.

Q.

And, how many times did he club you?

A.

Two (2) times, sir.24

It is a well-settled doctrine that the testimony of a youthful rape


victim is given full weight and credence considering that when a
girl says that she has been raped, she says in effect all that is
necessary to show that rape was indeed committed. 25 It is
against human nature for a young girl to fabricate a story that
would expose herself as well as her family to a lifetime of
shame, especially when her charge could mean the death or
lifetime imprisonment of her own father.26
Further, the testimony of Dr. Umil corroborated the testimony of
AAA on relevant and substantial points.27
The testimonies of AAA and Dr. Umil are in harmony with the
documentary evidence submitted by the prosecution. The RTC
and the Court of Appeals found their testimonies to be "credible,
true and sufficiently reliable." Both courts also found no ill
motive on their part to testify against appellant. 28
The rule is that the findings of the trial court, its calibration of
the testimonies of the witnesses and its assessment of the
probative weight thereof, as well as its conclusions anchored on
said findings are accorded respect if not conclusive effect. This is
more true if such findings were affirmed by the appellate court.
When the trial courts findings have been affirmed by the
appellate court, said findings are generally binding upon this
Court.29
Appellant, however, alleges in his first assigned error several
inconsistencies in the testimony of AAA, to wit: (1) AAA testified
that she was with her five siblings inside the house when she
was raped by appellant on 8 March 1995, while in her
subsequent testimony she stated that only DDD was present
when she was raped by appellant on the said date; (2) AAA told
the court that she was with her five siblings inside the house
when she was raped by appellant on 24 July 1998, while in her
later testimony she narrated that her siblings were out of the
house when she was raped by appellant on the said date; and
(3) AAA disclosed that during the rape on 24 July 1998 she saw
Rey and Benito outside the house staring at appellant who was
then on top of her, while in her other testimony she recounted
that she merely learned from EEE that Rey and Benito saw
appellant on top of her on the same date. 30
The credibility of a rape victim is not impaired by some
inconsistencies in her testimony.31 Such inconsistencies are
inconsequential when they refer to minor details that have

Appellant further claims that AAAs testimony does not jibe with
her Sinumpaang Salaysay and with the testimony of Dr. Umil as
shown by the following: (1) In her Sinumpaang Salaysay, AAA
stated that she was raped by appellant on 8 March 1995 and on
24 July 1998, while in her court testimony she revealed that she
was raped by appellant six times in 1996 and several times in
1997; and (2) AAA divulged that appellant punched her in the
stomach and slapped her during the incidents but Dr. Umil
testified that no contusions, abrasions or other physical injuries
were found on AAAs body during the latters physical
examination.34
We have steadfastly ruled that the alleged inconsistencies
between the testimony of a witness in open court and his sworn
statement are not fatal defects to justify a reversal of judgment
of conviction. Such discrepancies do not necessarily discredit the
witness since ex-parte affidavits are almost always incomplete.
Sworn statements taken ex-parte are generally considered to be
inferior to the testimony given in open court.35
The fact that Dr. Umil found no contusions or abrasions on AAAs
body during the latters physical examination does not render
improbable the occurrence of rape because settled is the
doctrine that absence of external signs or physical injuries does
not negate the commission of rape.36
Anent the second assignment of error, appellant argues that it is
improbable for appellant to rape AAA in the presence of the
latters siblings; that the informations in Criminal Cases No.
115032-H and 115033-H which allege that the rapes were
committed "during the period January to December 1996," and
"during the period January to December 1997," respectively, are
defective because it does not specifically state the exact dates of
the commission of rapes; that AAA is not a credible witness
because she did not immediately inform BBB nor the police
authorities of the incidents; that the failure of AAA to
immediately report the incidents implies that no rapes were
committed and that the sexual contacts between him and AAA
were voluntary and consensual; that AAAs testimony that she
reported the 8 March 1995 incident to EEE is unbelievable
because if such was true then the instant case would have been
filed earlier and the subsequent rapes could have been avoided;
that he never admitted having written the letter on a Marlboro
cigarette wrapper to AAA and thus the said letter cannot be used
as evidence against him because its due execution and
authenticity was not proven; and that the qualifying
circumstance of minority of AAA during the incidents was not
proven because the latters birth certificate was not presented in
court.37
Lust is no respecter of time and place. Thus, we held that rape
can be committed inside a house where there are other
occupants, and even in the same room where other members of
the family are also sleeping.38 It is not impossible, nor incredible,
for AAAs siblings to be in deep slumber and not to be awakened
while appellant was raping her.39

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 9

Failure to specify the exact dates or time when the rapes


occurred does not ipso facto make the information defective on
its face. The reason is obvious. The date or time of the
commission of rape is not a material ingredient of the said crime
because the gravamen of rape is carnal knowledge of a woman
through force and intimidation. As such, the date or time need
not be stated with absolute accuracy. It is sufficient that the
complaint or information states that the crime has been
committed at any time as near as possible to the date of its
actual commission.40
In several cases, we sustained complaints and informations in
prosecutions for rape which merely alleged the month and year
of its commission.41 Hence, the allegations in the informations
regarding Criminal Cases No. 115032-H and 115033-H which
state that rapes were committed "during the period January to
December 1996" and "during the period January to December
1997" are sufficient to affirm the conviction of appellant.
We have ruled that the failure of the rape victim to immediately
report the rape is not necessarily an indication of a fabricated
charge.42 It is not uncommon for young girls like AAA to conceal
for some time the assault on their virtues because of the rapists
threat on their lives, more so when the rapist is living with her as
in this case.43 AAA testified that appellant threatened to kill her
and the other family members should she report what he had
done to her. AAAs delay in reporting the sexual violations is
therefore understandable and cannot undermine her credibility.
Appellants letter written on a Marlboro cigarette wrapper asking
AAAs forgiveness is admissible in evidence against him. AAA
testified that after the instant case was filed in the RTC, BBB
visited appellant once in jail. During the said visit, appellant
handed to BBB a letter written on a Marlboro cigarette wrapper
and thereafter instructed BBB to give the said letter to her. BBB
gave her the said letter and told her "pinaabot ng tatay mo." In
the said letter, appellant asked her to forgive him for what he
did to her as he was only drunk at that time. She knows that the
letter was written by appellant because she is familiar with his
handwriting and signature.44 AAA positively identified the letter
itself during her direct examination and this was formally offered
as documentary evidence for the prosecution. 45
More importantly, appellant himself readily admitted that the
letter is the same letter he wrote for AAA.46 He also confirmed
that the handwriting therein is his.47 Although later, he would
deny the same on the basis that he does not use the Marlboro
cigarette brand, but only Winston cigarette brand, 48 we still give
more weight to his admission of the said letter since it was given
voluntarily and spontaneously. His subsequent denial is not only
based on flimsy grounds but also an obvious attempt to cover-up
his earlier damaging testimony. As to the contents of the letter,
verily, no one would ask for forgiveness unless he has
committed a wrong and a plea for forgiveness may be
considered analogous to an attempt to compromise, which offer
of compromise by the appellant may be received in evidence as
an implied admission of guilt pursuant to Section 27, Rule 130 of
the Revised Rules on Evidence.49
We agree, however, with appellants contention, as affirmed by
the Office of the Solicitor General and the Court of Appeals, that
the RTC erred in appreciating the qualifying circumstance of
minority of AAA and in imposing the maximum penalty of death
in Criminal Cases No. 115031-H and 115032-H.
Republic Act No. 7659 is the law applicable for the rapes
committed in March 1995 and on several occasions during the
period of January to December 1996, as respectively alleged in

Criminal Cases No. 115031-H and 115032-H. The said law states
that the death penalty shall be imposed if the rape victim is a
minor and the offender is a parent. The qualifying circumstances
of minority of the victim and the latters relationship with the
offender must be alleged and proven to warrant the imposition
of death penalty.50
The informations specifically alleged that AAA was a minor when
she was raped by appellant. Nonetheless, the prosecution failed
to prove such allegation with sufficient evidence.
AAA solely testified that she was fifteen years old when appellant
raped her on March 1995, and sixteen years old when appellant
defiled her again six times during the period of January to
December 1996.51 Appellant neither denied nor objected to the
said testimony of AAA.
In People v. Tabanggay,52 a case almost identical herein, we
held as insufficient evidence of minority the bare testimony of
the two rape victims, who were sisters, that they were 13 and
14 years of age, respectively, when their father raped them. We
emphasized therein that there must be independent evidence
proving the age of the victims other than their own testimonies
and the absence of denial by the accused. The victims original
or duly certified birth certificate, or baptismal certificate, or
school records would suffice as competent evidence of their age.
The prosecution presented a photocopy of one of the victims
birth certificate but we gave no probative value to it because it
was neither duly certified nor formally offered in evidence. In
conclusion, we ruled therein that the prosecution failed to prove
the minority of the rape victims.
Applying the foregoing jurisprudence to the case at bar, the bare
testimony of AAA as to her age is not sufficient proof that she
was a minor when appellant raped her on the given dates. There
must be independent evidence showing her minority other than
her bare testimony and the absence of denial by the appellant.
The independent proof may consist of her original or duly
certified birth certificate, or her baptismal certificate or school
records.
A photocopy of AAAs birth certificate is included in the records
of the present case.53 Nevertheless, the same was neither
properly identified nor formally offered in evidence. Hence, no
probative value can be given to it. Aside from the said birth
certificate, no other documentary evidence was adduced to
prove the age of AAA.
With respect to appellants failure to object on the aforesaid
testimony of AAA, we decreed in People v. Pruna,54 that the
failure of the accused to object to the testimonial evidence
regarding the rape victims age shall not be taken against him.
In People v. Tipay55 and People v. Pecayo, Sr.,56 we also
pronounced that the lack of denial on the part of accused as
regards the rape victims age does not excuse the prosecution
from discharging its burden of proving the minority of the rape
victim. As the qualifying circumstance of minority alters the
nature of the crime of rape and increases the penalty thereof, it
must be proved with equal certainty and clearness as the crime
itself.57
Since the qualifying circumstance of AAAs minority was not duly
proven by the prosecution, appellant should be held liable only
for simple rape in Criminal Cases No. 115031-H and 115032-H.58
Consequently, the penalty therein should be reduced to reclusion
perpetua pursuant to Article 335 of the Revised Penal Code, as
amended by Republic Act No. 7659.59

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 10

Finally, we concur with the disposition of the Court of Appeals


that appellant should pay AAA civil indemnity in the amount of
P50,000.00 and moral damages in the amount of P50,000.00
pursuant to prevailing jurisprudence.60 However, aside from
these damages, appellant should also pay AAA exemplary
damages in the amount of P25,000.00 in order to deter other
fathers with perverse tendencies or aberrant sexual behaviors
from sexually abusing their own daughters.61
WHEREFORE, after due deliberation, the Decision of the Court
of Appeals in CA-G.R. CR-HC No. 02407 dated 26 October 2006
is hereby AFFIRMED with the MODIFICATION that appellant
is also ordered to pay AAA exemplary damages in the amount of
P25,000.00 for each of the four cases.
SO ORDERED.

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 11

petitioner was placed under preventive suspension for the period


of 30 days effective upon receipt of the Notice.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 173151

March 28, 2008

EDUARDO BUGHAW, JR., Petitioner,


vs.
TREASURE ISLAND INDUSTRIAL CORPORATION,
Respondent.
DECISION
CHICO-NAZARIO, J.:
Before this Court is a Petition for Review on Certiorari under Rule
45 of the Revised Rules of Court, filed by petitioner Eduardo
Bughaw, Jr., seeking to reverse and set aside the Decision,1
dated 14 June 2005 and the Resolution,2 dated 8 May 2006 of
the Court of Appeals in CA-G.R. SP No. 85498. The appellate
court reversed the Decision dated 28 August 2003 and
Resolution dated 27 February 2004 of the National Labor
Relations Commission (NLRC) in NLRC Case No. V-000231-02
that found the petitioner to be illegally dismissed from
employment by respondent Treasure Island Industrial
Corporation. The dispositive portion of the assailed appellate
courts Decision thus reads:
WHEREFORE, discussion considered, the decision dated August
28, 2003 of the National Labor Relations Commission, Fourth
Division, Cebu City, in NLRC Case No. V-000231-02 (RAB VII-061171-01), is hereby VACATED and SET ASIDE en toto.
The award of money claims to [herein petitioner] is NULLIFIED
and RECALLED.3
The factual and procedural antecedents of the instant Petition
are as follows:
Sometime in March 1986, petitioner was employed as production
worker by respondent. Respondent was receiving information
that many of its employees were using prohibited drugs during
working hours and within the company premises.4
On 5 June 2001, one of its employees, Erlito Loberanes
(Loberanes) was caught in flagrante delicto by the police officers
while in possession of shabu. Loberanes was arrested and sent
to jail. In the course of police investigation, Loberanes admitted
the commission of the crime. He implicated petitioner in the
crime by claiming that part of the money used for buying the
illegal drugs was given by the latter, and the illegal drugs
purchased were for their consumption for the rest of the month.5
In view of Loberaness statement, respondent, on 29 June 2001,
served a Memo for Explanation6 to petitioner requiring him to
explain within 120 hours why no disciplinary action should be
imposed against him for his alleged involvement in illegal drug
activities. Petitioner was further directed to appear at the office
of respondents legal counsel on 16 June 2001 at 9:00 oclock in
the morning for the hearing on the matter. For the meantime,

Notwithstanding said Memo, petitioner failed to appear before


the respondents legal counsel on the scheduled hearing date
and to explain his side on the matter.
On 19 July 2001, respondent, through legal counsel, sent a
second letter7 to petitioner directing him to attend another
administrative hearing scheduled on 23 July 2001 at 11:00
oclock in the morning at said legal counsels office but petitioner
once again failed to show up.
Consequently, respondent, in a third letter 8 dated 21 August
2001 addressed to petitioner, terminated the latters
employment retroactive to 11 June 2001 for using illegal drugs
within company premises during working hours, and for refusal
to attend the administrative hearing and submit written
explanation on the charges hurled against him.
On 20 July 2001, petitioner filed a complaint 9 for illegal dismissal
against respondent and its President, Emmanuel Ong, before the
Labor Arbiter. Petitioner alleged that he had been working for
the respondent for 15 years and he was very conscientious with
his job. He was suspended for 30 days on 11 June 2001 based
on the unfounded allegation of his co-worker that he used illegal
drugs within company premises. When petitioner reported back
to work after the expiration of his suspension, he was no longer
allowed by respondent to enter the work premises and was told
not to report back to work.
On 8 January 2002, the Labor Arbiter rendered a Decision 10 in
favor of petitioner since the respondent failed to present
substantial evidence to establish the charge leveled against the
petitioner. Apart from Loberaness statements on petitioners
alleged illegal drug use, no other corroborating proof was
offered by respondent to justify petitioners dismissal. Further,
respondent failed to comply with due process when it
immediately suspended petitioner and eventually dismissed him
from employment. Petitioners immediate suspension was not
justified since no evidence was submitted by the respondent to
establish that petitioners continued employment pending
investigation poses a serious and imminent threat to
respondents life or property or to the life or property of
petitioners co-workers. Finally, the Labor Arbiter observed that
the notices of hearing sent by respondent to petitioner were not
duly received by the latter. The Labor Arbiter was not swayed by
respondents explanation that the reason therefor was that
petitioner refused to receive said notices. The Labor Arbiter thus
ruled:
WHEREFORE, premises considered, judgment is hereby rendered
ordering [herein respondent] to pay [herein petitioner] the
following:

1. Separation pay

P 74,100.00

2. Backwages

P 27,550.00

3. Unpaid wages

P 4,940.00

Total

P 106,590.00

The case against respondent Emmanuel Ong is dismissed for


lack of merit.11

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 12

On appeal, the NLRC affirmed the Labor Arbiters Decision in its


Decision dated 28 August 2003. The NLRC decreed that
respondent failed to accord due process to petitioner when it
dismissed him from employment. The use of illegal drugs can be
a valid ground for terminating employment only if it is proven
true. An accusation of illegal drug use, standing alone, without
any proof or evidence presented in support thereof, would just
remain an accusation.12
The Motion for Reconsideration filed by respondent was denied
by the NLRC in a Resolution13 dated 27 February 2004.
Resolving respondents Petition for Certiorari, the Court of
Appeals reversed the Decisions of the Labor Arbiter and NLRC on
the grounds of patent misappreciation of evidence and
misapplication of law. The appellate court found that petitioner
was afforded the opportunity to explain and defend himself from
the accusations against him when respondents gave him notices
of hearing, but petitioner repeatedly ignored them, opting
instead to file an illegal dismissal case against respondent before
the Labor Arbiter. The essence of due process in administrative
proceedings is simply an opportunity to explain ones side or to
seek reconsideration of the action or ruling complained of. Due
process is not violated where one is given the opportunity to be
heard but he chooses not to explain his side.14

and hearing23 must, likewise, be observed before an employee


may be dismissed. Without the concurrence of the two, the
termination would, in the eyes of the law, be illegal,24 for
employment is a property right of which one cannot be deprived
of without due process.25
Hence, the two (2) facets of a valid termination of employment
are: (a) the legality of the act of dismissal, i.e., the dismissal
must be under any of the just causes provided under Article 282
of the Labor Code; and (b) the legality of the manner of
dismissal, which means that there must be observance of the
requirements of due process, otherwise known as the two-notice
rule.26
Article 282 of the Labor Code enumerates the just causes for
terminating the services of an employee:
ART. 282. Termination by employer. - An employer may
terminate an employment for any of the following causes:
(a) Serious misconduct or willful disobedience by the
employee of the lawful orders of his employer or
representative in connection with his work;
(b) Gross and habitual neglect by the employee of his
duties;

Similarly ill-fated was petitioners Motion for Reconsideration


which was denied by the Court of Appeals in its Resolution15
dated 8 May 2006.

(c) Fraud or willful breach by the employee of the


trust reposed in him by his employer or his duly
authorized representative;

16

Hence, this instant Petition for Review on Certiorari under Rule


45 of the Revised Rules of Court filed by petitioner impugning
the foregoing Court of Appeals Decision and Resolution, and
raising the sole issue of:

(d) Commission of a crime or offense by the


employee against the person of his employer or any
immediate member of his family or his duly
authorized representative; and

WHETHER OR NOT PETITIONER WAS ILLEGALLY DISMISSED


FROM EMPLOYMENT.
Time and again we reiterate the established rule that in the
exercise of the Supreme Courts power of review, the Court is
not a trier of facts17 and does not routinely undertake the
reexamination of the evidence presented by the contending
parties during the trial of the case considering that the findings
of facts of labor officials who are deemed to have acquired
expertise in matters within their respective jurisdiction are
generally accorded not only respect, but even finality, and are
binding upon this Court,18 when supported by substantial
evidence.19
The Labor Arbiter and the NLRC both ruled that petitioner was
illegally dismissed from employment and ordered the payment of
his unpaid wages, backwages, and separation pay, while the
Court of Appeals found otherwise. The Labor Arbiter and the
NLRC, on one hand, and the Court of Appeals, on the other,
arrived at divergent conclusions although they considered the
very same evidences submitted by the parties. It is, thus,
incumbent upon us to determine whether there is substantial
evidence to support the finding of the Labor Arbiter and the
NLRC that petitioner was illegally dismissed. Substantial evidence
is such amount of relevant evidence which a reasonable mind
might accept as adequate to support a conclusion, even if other
equally reasonable minds might conceivably opine otherwise.20
Under the Labor Code, the requirements for the lawful dismissal
of an employee are two-fold, the substantive and the procedural
aspects. Not only must the dismissal be for a just21 or authorized
cause,22 the rudimentary requirements of due process - notice

(e) Other causes analogous to the foregoing.


The charge of drug abuse inside the companys premises and
during working hours against petitioner constitutes serious
misconduct, which is one of the just causes for termination.
Misconduct is improper or wrong conduct. It is the transgression
of some established and definite rule of action, a forbidden act,
a dereliction of duty, willful in character, and implies wrongful
intent and not merely an error in judgment. The misconduct to
be serious within the meaning of the Act must be of such a
grave and aggravated character and not merely trivial or
unimportant. Such misconduct, however serious, must
nevertheless, in connection with the work of the employee,
constitute just cause for his separation. 27 This Court took judicial
notice of scientific findings that drug abuse can damage the
mental faculties of the user. It is beyond question therefore that
any employee under the influence of drugs cannot possibly
continue doing his duties without posing a serious threat to the
lives and property of his co-workers and even his employer.
Loberaness statements given to police during investigation is
evidence which can be considered by the respondent against the
petitioner. Petitioner failed to controvert Loberanes claim that
he too was using illegal drugs. Records reveal that respondent
gave petitioner a first notice dated 11 June 2001, giving him 120
hours within which to explain and defend himself from the
charge against him and to attend the administrative hearing
scheduled on 16 June 2001. There is no dispute that petitioner
received said notice as evidenced by his signature appearing on
the lower left portion of a copy thereof together with the date

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 13

and time of his receipt.28 He also admitted receipt of the first


notice in his Memorandum before this Court. 29 Despite his
receipt of the notice, however, petitioner did not submit any
written explanation on the charge against him, even after the
lapse of the 120-day period given him. Neither did petitioner
appear in the scheduled administrative hearing to personally
present his side. Thus, the respondent cannot be faulted for
considering only the evidence at hand, which was Loberanes
statement, and conclude therefrom that there was just cause for
petitioners termination.
We thus quote with approval the disquisition of the Court of
Appeals:
The [NLRC] did not find substantial evidence in order to
establish the charge leveled against [herein petitioner] claiming
that the statement of Loberanes is legally infirm as it was an
admission made under custodial investigation; and there has
been no corroborating evidence. In administrative proceedings,
technical rules of procedure and evidence are not strictly applied
and administrative due process cannot be fully equated with due
process in its strict judicial sense. Xxx It is sufficient that [herein
petitioner] was implicated in the use of illegal drugs and, more
importantly, there is no counter-statement from [herein
petitioner] despite opportunities granted to him submit to an
investigation.30
It was by petitioners own omission and inaction that he was not
able to present evidence to refute the charge against him.
Now we proceed to judge whether the manner of petitioners
dismissal was legal; stated otherwise, whether petitioner was
accorded procedural due process.
In Pastor Austria v. National Labor Relations Commission, 31 the
Court underscored the significance of the two-notice rule in
dismissing an employee:
The first notice, which may be considered as the proper
charge, serves to apprise the employee of the particular acts or
omissions for which his dismissal is sought. The second notice
on the other hand seeks to inform the employee of the
employers decision to dismiss him. This decision, however, must
come only after the employee is given a reasonable period from
receipt of the first notice within which to answer the charge and
ample opportunity to be heard and defend himself with the
assistance of a representative if he so desires. This is in
consonance with the express provision of the law on the
protection to labor and the broader dictates of procedural due
process. Non-compliance therewith is fatal because these
requirements are conditions sine qua non before dismissal may
be validly effected. (Emphases supplied.)
While there is no dispute that respondent fully complied with the
first-notice requirement apprising petitioner of the cause of his
impending termination and giving him the opportunity to explain
his side, we find that it failed to satisfy the need for a second
notice informing petitioner that he was being dismissed from
employment.
We cannot give credence to respondents allegation that the
petitioner refused to receive the third letter dated 21 August
2001 which served as the notice of termination. There is nothing
on record that would indicate that respondent even attempted to
serve or tender the notice of termination to petitioner.1avvphi1
No affidavit of service was appended to the said notice attesting
to the reason for failure of service upon its intended recipient.

Neither was there any note to that effect by the server written
on the notice itself.
The law mandates that it is incumbent upon the employer to
prove the validity of the termination of employment.32 Failure to
discharge this evidentiary burden would necessarily mean that
the dismissal was not justified and, therefore, illegal.33
Unsubstantiated claims as to alleged compliance with the
mandatory provisions of law cannot be favored by this Court. In
case of doubt, such cases should be resolved in favor of labor,
pursuant to the social justice policy of our labor laws and
Constitution.34
The burden therefore is on respondent to present clear and
unmistakable proof that petitioner was duly served a copy of the
notice of termination but he refused receipt. Bare and vague
allegations as to the manner of service and the circumstances
surrounding the same would not suffice. A mere copy of the
notice of termination allegedly sent by respondent to petitioner,
without proof of receipt, or in the very least, actual service
thereof upon petitioner, does not constitute substantial
evidence. It was unilaterally prepared by the petitioner and,
thus, evidently self-serving and insufficient to convince even an
unreasonable mind.
We cannot overemphasize the importance of the requirement on
the notice of termination, for we have ruled in a number of
cases35 that non-compliance therewith is tantamount to
deprivation of the employees right to due process.
This is not the first time that the Court affirmed that there was
just cause for dismissal, but held the employer liable for noncompliance with the procedural due process. In Agabon v.
National Labor Relations Commission, 36 we found that the
dismissal of the employees therein was for valid and just cause
because their abandonment of their work was firmly established.
Nonetheless, the employer therein was held liable because it
was proven that it did not comply with the twin procedural
requirements of notice and hearing for a legal dismissal.
However, in lieu of payment of backwages, we ordered the
employer to pay indemnity to the dismissed employees in the
form of nominal damages, thus:
The violation of the petitioners right to statutory due process by
the private respondent warrants the payment of indemnity in the
form of nominal damages. The amount of such damages is
addressed to the sound discretion of the court, taking into
account the relevant circumstances. We believe this form of
damages would serve to deter employers from future violations
of the statutory due process rights of employees. At the very
least, it provides a vindication or recognition of this fundamental
right granted to the latter under the Labor Code and its
Implementing Rules.37
The above ruling was further clarified in Jaka Food Processing
Corporation v. Pacot.38
In Jaka, the employees were terminated because the corporation
was financially distressed. However, the employer failed to
comply with Article 283 of the Labor Code which requires the
employer to serve a written notice upon the employees and the
Department of Labor and Employment (DOLE) at least one
month before the intended date of termination. We first
distinguished the case from Agabon, to wit:
The difference between Agabon and the instant case is that in
the former, the dismissal was based on a just cause under

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 14

Article 282 of the Labor Code while in the present case,


respondents were dismissed due to retrenchment, which is one
of the authorized causes under Article 283 of the same Code.
xxxx
A dismissal for just cause under Article 282 implies that the
employee concerned has committed, or is guilty of, some
violation against the employer, i.e., the employee has committed
some serious misconduct, is guilty of some fraud against the
employer, or, as in Agabon, he has neglected his duties. Thus, it
can be said that the employee himself initiated the dismissal
process.
On another breath, a dismissal for an authorized cause under
Article 283 does not necessarily imply delinquency or culpability
on the part of the employee. Instead, the dismissal process is
initiated by the employers exercise of his management
prerogative, i.e., when the employer opts to install labor saving
devices, when he decides to cease business operations or when,
as in this case, he undertakes to implement a retrenchment
program.39
Then we elucidated on our ruling in Agabon in this wise:
Accordingly, it is wise to hold that: (1) if the dismissal is based
on a just cause under Article 282 but the employer failed to
comply with the notice requirement, the sanction to be imposed
upon him should be tempered because the dismissal process
was, in effect, initiated by an act imputable to the employee;
and (2) if the dismissal is based on an authorized cause under
Article 283 but the employer failed to comply with the notice
requirement, the sanction should be stiffer because the dismissal
process was initiated by the employers exercise of his
management prerogative.40
The Agabon doctrine enunciates the rule that if the dismissal
was for just cause but procedural due process was not observed,
the dismissal should be upheld. Where the dismissal is for just
cause, as in the instant case, the lack of statutory due process
should not nullify the dismissal or render it illegal or ineffectual.
However, the employer should indemnify the employee for the
violation of his right to procedural due process. The indemnity to
be imposed should be stiffer to discourage the abhorrent
practice of "dismiss now, pay later," which we sought to deter in
the Serrano41 ruling. In Agabon42 the nominal damages awarded
was P30,000.00.
Conformably, the award of backwages by the Labor Arbiter and
the NLRC should be deleted and, instead, private respondent
should be indemnified in the amount of P30,000.00 as nominal
damages.43
WHEREFORE, premises considered, the instant Petition is
DENIED. The Court of Appeals Decision dated 14 June 2005 is
hereby AFFIRMED WITH MODIFICATION in the sense that while
there was a valid ground for dismissal, the procedural
requirements for termination as mandated by law and
jurisprudence were not observed. Respondent Treasure Island
Corporation is ORDERED to pay the amount of P30,000.00 as
nominal damages. No costs.
SO ORDERED.

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 15

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
A.M. No. P-04-1917
December 10, 2007
(Formerly A.M. No. 04-10-297-MTCC)
OFFICE OF THE COURT ADMINISTRATOR, complainant,
vs.
MRS. ELADIA T. CUNTING, former Clerk of Court, Office
of the Clerk of Court, Municipal Trial Court in Cities,
Zamboanga City, respondent.
DECISION
NACHURA, J.:
This administrative case is the result of the financial audit
conducted by the Office of the Court Administrator (OCA) in the
Municipal Trial Court in Cities (MTCC) of Zamboanga City, the
antecedents of which are as follows:
On September 4, 2003, the OCA received a copy of the letter of
Atty. Linda Lim, complaining about the Clerk of Court of the
MTCC of Zamboanga City, respondent Eladia T. Cunting, who
allegedly caused the delay in the release of the full amount
adjudged in favor of her client, and the dishonor of the checks
due to insufficiency of funds. This letter-complaint prompted the
Fiscal Monitoring Division of the OCA to form an audit team to
investigate the financial state of the said court. The team
audited the books of accounts of the MTCC of Zamboanga City
from September 15 to 19, 2003.
On November 10, 2003, the respondent wrote a letter to Hon.
Efren S. Mariano, Executive Judge, MTCC, Zamboanga City,
stating as follows:

In accordance with the recommendation of the OCA, the Court


issued a Resolution2 dated December 1, 2004, directing the
respondent to deposit the amounts of P10,049,496.60 to the
Fiduciary Trust Fund account, P972,634.02 to Judiciary
Development Fund account, and P117,093.36 to the Special
Allowance for Judiciary account. She was also directed to submit
the court orders, acknowledgment receipts and other documents
showing the unauthorized withdrawals from the said accounts.
In the same Resolution, the Court resolved to issue a Hold
Departure Order against the respondent and to suspend her
pending the resolution of the case. The Court, likewise, directed
the Legal Office of the OCA to file the appropriate criminal
charges against the respondent.
In a letter3 dated January 17, 2005, the respondent asked for an
additional period of thirty (30) days within which to comply with
the December 1, 2004 Resolution. She averred that she needed
additional time to produce the documents required to be
submitted and to prepare her answer to the charges imputed to
her. The Court granted the request for extension of time.
However, the respondent did not submit any document within
the extended period.
On July 18, 2005, the Court issued a Resolution4 directing the
respondent to show cause why she should not be disciplinarily
dealt with for failure to file her answer and submit the required
documents. When the respondent failed to comply, the Court
issued another Resolution5 on December 14, 2005, imposing
upon the respondent a fine of P1,000.00, or imprisonment of
five (5) days, and requiring her to comply with the previous
orders of the Court. Still, the respondent failed to comply. In a
Resolution6 dated March 19, 2007, the Court imposed upon the
respondent an additional fine of P2,000.00. She was also
directed to show cause why she should not be held in contempt
of court for failure to comply with the Courts orders.
Thereafter, the OCA reevaluated the case and reassessed the
respondents liability to include the withdrawals which the
respondent failed to substantiate. The OCA reported, thus:

In anticipation that I will be obliged to answer for the


amount of money that have not been fully accounted
for as a result of the audit, I wish to request you that
said amount be charged to whatever retirement
benefits I may be entitled to, including the
commutation of all my leave balances accumulated
over the years that I was an employee of the
Supreme Court of the Philippines.
It may likewise be informed that a number of parties
have been coming to my residence, accordingly upon
advice of some court employees, seeking the refund
of bail bonds posted in the respective cases that
these parties were involved in, which cases have been
either provisionally or permanently dismissed. For this
reason, I thus request that my salaries, which I
learned have been held in abeyance, be used to
answer for such refund of bail bonds. It may be
informed that since payment of my salaries and other
remunerations is currently suspended, I am not in a
position to personally answer for such refund.1
On October 6, 2004, the audit team submitted its report to the
OCA. The audit team found that respondent had been remiss in
the performance of her duties and that there were massive
shortages in the courts funds.

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

First, the respondent left open the vault. On the day


the audit team arrived at the MTCC of Zamboanga
City, respondent was attending a seminar in Dipolog
City. The audit team noticed that the vault was open
making it accessible to any person in court.
Second, the audit team found cash amounting to
P10,670.30 stored in the vault. The team had to
presume that this amount forms part of the court
collections because the source of the money can not
be confirmed from the respondent who did not report
for work during the entire period of the audit
notwithstanding the instruction of Judge Mariano for
her to cut short her attendance in the seminar in
Dipolog City so she can attend to the needs of the
audit team.
Third, there were missing accountable forms. The
Office of the Clerk of Court of the MTCC of
Zamboanga City requisitioned several booklets of
official receipts from this Court which the audit team
can not find among the records of the said court.
Fourth, the audit team found out that the Office of
the Clerk of Court of the MTCC of Zamboanga City
issued receipts which were not requisitioned from this
Court.

AGUSTIN, E. P. | 16

Fifth, the audit team discovered a shortage in the


collections for the Clerk of Court General Fund in the
amount of P116,431.30. The total collections for this
fund from November 1996 to June 2003 is
P537,069.54. Deducted therefrom is the amount of
P493,452.49 representing the amount properly
deposited or remitted to the bank. This left an
unremitted balance of P43,617.05. The audit team did
not consider as valid deposits or remittances those
amounts reflected in several deposit slips without any
machine validation. These amounted to P72,814.25.
Thus, insofar as these amounts are concerned, there
are doubts as to whether these deposits were actually
made, hence, these have to be treated as unremitted
collections and added to the unremitted balance of
P43,617.05. The total accountability of respondent is
P116,431.30. Sixth, the audit team found out that
respondent did not maintain a cash book for the Clerk
of Court General Fund for the period of September
1999 to June 2003. The team also noticed that
respondent did not regularly submit the monthly
reports of collections for the Clerk of Court General
Fund. The lacking monthly reports pertain to the
months of November 2000, June 2001, October 2002,
December 2002, May 2003 and June 2003. As a
result, the Accounting Division of this Court was not
able to prepare the Subsidiary Ledger for the
corresponding months.
Seventh, the audit team noticed numerous mistakes
in reporting to this Court the collections in the Clerk
of Court General Fund. The team observed
discrepancies between the amount indicated in the
official receipts and the amount in the monthly
reports, to wit:
Eighth, there was also a shortage in the collections
for the Judiciary Development Fund in the amount of
P574,927.47. The total collection for this fund from
November 1996 to June 2003 is P2,531,283.06. The
audit team deducted therefrom the amount of
P2,259,358.67
representing
the
valid
remittances/deposits to the bank. This left an
unaccounted balance of P271,924.39. The team
added to the accountability of respondent the amount
of P303,003.08 which was summed up from the
deposit slips without any machine validation. Under
Administrative Circular No. 3-2000 (June 15, 2000), it
was stated that "[d]eposit slips that are not machine
validated shall not be considered as deposits."
The deposit slips without machine validation are:

The audit team discovered a discrepancy in the


amount indicated in a deposit slip. The deposit slip
dated August 4, 1998, which was attached to the
monthly report for July 1998, showed a deposit of
P11,400.00 while the machine validated slip indicated
a deposit of P10,958.33 or a difference of P481.67.

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

The collections for the Judiciary Development Fund


were not accurately recorded in the monthly reports.
The audit team discovered discrepancies between the
amount indicated in the official receipts and those
indicated in the cash book, the net effect of which is
that the collections reported to the Accounting
Division of this Court were understated. These
discrepancies are:

Still in connection with the Judiciary Development


Fund, there was no cash book for the months of
January to June 2003. There were no monthly reports
for December 1996, November 1997, for the entire
year of 1999, November 2000, November and
December 2002, and January to June 2003.
Finally, the audit team discovered the biggest
shortage in the Fiduciary Fund amounting to
P11,338,382.54. This was a result of a variety of
irregular transactions. First, cash bail in the total
amount of P12,400.00 was released without any
supporting court orders authorizing the release
thereof. Neither were these accompanied by
acknowledgment receipts whereby the accused
acknowledges his/her receipt of the released cash
bail. These involve three (3) transactions, to wit:
There were also twenty-six (26) instances wherein
the cash bail amounting to P264,000.00 was released
without any supporting court orders authorizing the
release. These are:
In eleven (11) transactions, cash bail amounting to
P237,700.00
was
released
without
any
acknowledgment receipt. Since there was no proof
that the accused actually received the released cash
bail, this amount shall be considered as part of the
accountability of the respondent. These transactions
are:
Court fines were collected but not remitted to the
Fiduciary Fund. This amounted to P321.50, the details
of which are:
Confiscated cash bail amounting to P554,400.00 were
withdrawn from the Fiduciary Fund account but were
not remitted to the [J]udiciary [Development] [F]und
account.
The audit team discovered that respondent was
collecting a fee of 1% for every money received by
the court such as cash bail, consignments, rental
deposits, etc. However, there are no records that the
fees collected were remitted to the bank. The total
fees collected by respondent amounted to
P219,464.44.
Finally, the audit team computed the total cash bail,
supersedeas bonds, consignations and rental deposits
that were supposedly unwithdrawn from the bank.
This amounted to P10,212,693.75. However, the total

AGUSTIN, E. P. | 17

balance in the bank accounts maintained by


respondent for the MTCC of Zamboanga City is
nowhere near this amount. Current Account No.
1952-0007-28 has a balance of only P160,436.55
while Savings Account No. 1951-0113-94 has only
P1,761.20 for a total of P162,197.75. This should be
deducted from P10,212,693.75 leaving a balance of
P10,049,496.60. This represents the amount of
unwithdrawn and unaccounted Fiduciary Fund
collections for which the respondent is responsible.

The administration of justice is circumscribed with a heavy


burden of responsibility. It requires everyone involved in its
dispensation -- from the justices and judges to the lowliest clerks
-- to live up to the strictest standards of competence, integrity
and diligence in the public service. 8 As frontliners in the
administration of justice, they should live up to the strictest
standards of honesty and integrity. They must bear in mind that
the image of a court of justice is necessarily mirrored in the
conduct, official or otherwise, of the men and women who work
there.9

All in all, the liability of the respondent for the


Fiduciary Fund is P11,338,382.54 which is broken
down as follows:

Clerks of court, in particular, must be individuals of competence,


honesty and probity, charged as they are with safeguarding the
integrity of the court and its proceedings. 10 They perform a
delicate function as designated custodians of the court's funds,
revenues, records, properties and premises. 11 As such, they are
No Court Order and Acknowledgment Receipt
12,400.00
responsible for ensuring that theP courts
funds are promptly
No Court Order
264,600.00
deposited with an authorized government
depositary bank. Thus,
they are liable for any loss, shortage,
destruction or impairment
No Acknowledgment Receipt
237,700.00
12
of
such
funds
and
property.
This
Court
Court fines collected but not remitted
321.50 will not countenance
dishonesty and malversation, for these offenses diminish the
13
Confiscated Bonds which were withdrawn but Not remitted
faith of the people in the Judiciary. 554,400.00
Commission on Cash Held in Trust but not Remitted
219,464.44
Unwithdrawn Cash Bond
10,049,496.60
The respondent failed to live up to these
exacting standards. She
Total Unwithdrawn Fiduciary Fund
P 11,338,382.54
had been grossly negligent in her
duties as shown by the
following incidents: (1) she left open the courts vault while
attending a seminar in Dipolog City; (2) she left P10,670.30
Based on the foregoing, the OCA recommended that:
inside the vault; (3) forty-six (46) booklets of official receipts
were missing; and (4) she used receipts not requisitioned from
the Property Division of the OCA.
1. Ms. Eladia T. Cunting, Clerk of Court, Municipal
Trial Court in Cities, Zamboanga City, be FOUND
GUILTY of gross neglect of duty, dishonesty and
Her most serious infractions were the shortages in the Clerk of
gross misconduct;
Court General Fund, Judiciary Development Fund, and the
Fiduciary Fund, which amounted to P12,029,741.31. Several
irregularities contributed to the accumulation of these shortages:
2. The Financial Management Office, Office of the
(1) respondent did not deposit some amount of the courts
Court Administrator, be DIRECTED to process the
collections as shown by deposit slips which were not machine
terminal leave benefits of the respondent, dispensing
validated by the bank; (2) monthly reports were not regularly
with the documentary requirements, and to remit the
submitted to the Court; (3) reports submitted to the Court
said benefit to the Fiduciary Fund account of the
contained numerous discrepancies between the amounts
MTCC of Zamboanga City;
reported and the amounts appearing in the official receipts,
deposit slips or cash books; (4) she did not maintain a cash book
3. Ms. Cunting be FOUND GUILTY of contempt of
for the Judiciary Development Fund; (5) respondent withdrew
court for failing to return the missing funds despite
cash bail from the Fiduciary Fund without court orders or without
repeated demands;
any acknowledgment receipts; (6) fines imposed on the cash bail
were not remitted; (7) confiscated cash bails were not remitted
to the Judiciary Development Fund; and (8) respondent did not
4. Ms. Cunting be DIRECTED to restitute the following
remit the 1% commission she collected on money received by
amounts to their respective accounts:
the court.
a. P116,431.30 Clerk of Court General
Fund
b. P574,927.47 Judiciary Development
Fund
c. P10,899,019.037 Fiduciary Fund
5. Director Nestor M. Mantaring, National Bureau of
Investigation, be DIRECTED to cause the arrest of Ms.
Eladia T. Cunting and to detain her until she complies
with the directive of this Court to restitute the abovementioned shortages.
The findings and recommendations of the OCA are well taken.

The fact that respondent failed to exert any effort to defend


herself from the charges against her exacerbates her
predicament. The natural instinct of a man is to resist an
unfounded claim or imputation and defend himself, for it is
totally against human nature to remain silent and say nothing in
the face of false accusations. Silence, in such cases, is almost
always construed as an implied admission of the truth thereof.
Thus, in the absence of any compelling reason to hold
otherwise, we take respondents silence as a waiver to file her
comment and an acknowledgment of the truthfulness of the
charges against her.14
Worse, she had effectively admitted her accountability for the
shortages in the courts funds when she wrote the letter to
Judge Mariano requesting that her accrued leave credits be used
to answer for any amount which the audit team would find
unaccounted for. Dishonesty, particularly that which amounts to
malversation of public funds, will not be tolerated. Otherwise,

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 18

courts of justice may come to be regarded as mere havens of


thievery and corruption.15
The seriousness of respondents infractions amounts to gross
neglect of duty, dishonesty and grave misconduct, and merits
dismissal from the service. However, on July 26, 2007, the Court
already dismissed respondent from the service also for gross
dishonesty and grave misconduct with forfeiture of all benefits,
except accrued leave credits, and with prejudice to
reemployment in the government service. 16 Nonetheless, this
does not render the case moot.17 Respondent cannot avoid
administrative liability by her previous dismissal from the service.
For this case involving additional serious offenses, in lieu of
dismissal from the service, the Court finds it proper to impose on
her a fine of P40,000.00 to be deducted from her accrued leave
credits.
The recommendation to hold the respondent in contempt of
court is likewise warranted. Indifference to the Courts
Resolutions requiring the production of certain documents makes
respondent guilty of contempt of court. Such cavalier attitude
disregards the duty of every employee in the Judiciary to obey
the orders and processes of this Court without delay. 18 When the
contempt consists in the refusal to do an act which is still within
the power of respondent to perform, she may be imprisoned by
order of the court until she performs it. 19
WHEREFORE, respondent Eladia T. Cunting is found GUILTY
of gross neglect of duty, dishonesty and grave misconduct. In
view of her previous dismissal from the service, a FINE in the
amount of P40,000.00 is imposed on respondent to be deducted
from her accrued leave credits.
Respondent is further ordered to RESTITUTE the following
amounts to their respective accounts:
a. P116,431.30 Clerk of Court General Fund
b. P574,927.47 Judiciary Development Fund
c. P11,338,382.54 Fiduciary Fund
The Employees Leave Division, Office of Administrative ServicesOCA, is likewise DIRECTED to compute the respondents
earned leave credits and to forward it to the Finance Division,
Fiscal Management Office-OCA, which shall compute the money
value of the balance, as well as other benefits that she may be
entitled to, to be included as payment of the fine and partial
restitution of the computed shortages.
In addition, the respondent is found GUILTY of contempt of
court for her failure to comply with the Courts orders. For this
reason, the National Bureau of Investigation is DIRECTED to
cause the arrest of respondent Eladia T. Cunting and to detain
her until she complies with the directive of this Court to restitute
the balance of the shortages, after deduction of the balance of
her accrued leave credits.
SO ORDERED.

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 19

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 165647

March 26, 2009

PHILIPPINES FIRST INSURANCE CO., INC., Petitioner,


vs.
WALLEM PHILS. SHIPPING, INC., UNKNOWN OWNER
AND/OR UNKNOWN CHARTERER OF THE VESSEL M/S
"OFFSHORE MASTER" AND "SHANGHAI FAREAST SHIP
BUSINESS COMPANY," Respondents.
DECISION
TINGA, J.:
Before us is a Rule 45 petition1 which seeks the reversal of the
Decision2 and Resolution3 of the Court of Appeals in CA-G.R. No.
61885. The Court of Appeals reversed the Decision4 of the
Regional Trial Court (RTC) of Manila, Branch 55 in Civil Case No.
96-80298, dismissing the complaint for sum of money.
The facts of the case follow.5
On or about 2 October 1995, Anhui Chemicals Import & Export
Corporation loaded on board M/S Offshore Master a shipment
consisting of 10,000 bags of sodium sulphate anhydrous 99 PCT
Min. (shipment), complete and in good order for transportation
to and delivery at the port of Manila for consignee, L.G.
Atkimson Import-Export, Inc. (consignee), covered by a Clean
Bill of Lading. The Bill of Lading reflects the gross weight of the
total cargo at 500,200 kilograms.6 The Owner and/or Charterer
of M/V Offshore Master is unknown while the shipper of the
shipment is Shanghai Fareast Ship Business Company. Both are
foreign firms doing business in the Philippines, thru its local ship
agent, respondent Wallem Philippines Shipping, Inc. (Wallem).7
On or about 16 October 1995, the shipment arrived at the port
of Manila on board the vessel M/S Offshore Master from which it
was subsequently discharged. It was disclosed during the
discharge of the shipment from the carrier that 2,426 poly bags
(bags) were in bad order and condition, having sustained various
degrees of spillages and losses. This is evidenced by the Turn
Over Survey of Bad Order Cargoes (turn-over survey) of the
arrastre operator, Asian Terminals, Inc. (arrastre operator). 8 The
bad state of the bags is also evinced by the arrastre operators
Request for Bad Order Survey.9

Co., Inc. against all risks in the amount of P2,470,213.50,12 the


consignee filed a formal claim13 with petitioner for the damage
and losses sustained by the shipment. After evaluating the
invoices, the turn-over survey, the bad order certificate and
other documents,14 petitioner found the claim to be in order and
compensable under the marine insurance policy. Consequently,
petitioner paid the consignee the sum of P397,879.69 and the
latter signed a subrogation receipt.
Petitioner, in the exercise of its right of subrogation, sent a
demand letter to Wallem for the recovery of the amount paid by
petitioner to the consignee. However, despite receipt of the
letter, Wallem did not settle nor even send a response to
petitioners claim.15
Consequently, petitioner instituted an action before the RTC for
damages against respondents for the recovery of P397,879.69
representing the actual damages suffered by petitioner plus legal
interest thereon computed from the time of the filing of the
complaint until fully paid and attorneys fees equivalent to 25%
of the principal claim plus costs of suit.
In a decision16 dated 3 November 1998, the RTC ordered
respondents to pay petitioner P397,879.69 with 6% interest plus
attorneys fees and costs of the suit. It attributed the damage
and losses sustained by the shipment to the arrastre operators
mishandling in the discharge of the shipment. Citing Eastern
Shipping Lines, Inc. v. Court of Appeals,17 the RTC held the
shipping company and the arrastre operator solidarily liable since
both the arrastre operator and the carrier are charged with and
obligated to deliver the goods in good order condition to the
consignee. It also ruled that the ship functioned as a common
carrier and was obliged to observe the degree of care required
of a common carrier in handling cargoes. Further, it held that a
notice of loss or damage in writing is not required in this case
because said goods already underwent a joint inspection or
survey at the time of receipt thereof by the consignee, which
dispensed with the notice requirement.
The Court of Appeals reversed and set aside the RTCs
decision.18 According to the appellate court, there is no solidary
liability between the carrier and the arrastre operator because it
was clearly established by the court a quo that the damage and
losses of the shipment were attributed to the mishandling by the
arrastre operator in the discharge of the shipment. The appellate
court ruled that the instant case falls under an exception
recognized in Eastern

Shipping Lines.19 Hence, the arrastre operator was held solely


liable to the consignee.

Petitioner raises the following issues:

Asia Star Freight Services, Inc. undertook the delivery of the


subject shipment from the pier to the consignees warehouse in
Quezon City,10 while the final inspection was conducted jointly
by the consignees representative and the cargo surveyor.
During the unloading, it was found and noted that the bags had
been discharged in damaged and bad order condition. Upon
inspection, it was discovered that 63,065.00 kilograms of the
shipment had sustained unrecovered spillages, while 58,235.00
kilograms had been exposed and contaminated, resulting in
losses due to depreciation and downgrading.11
On 29 April 1996, the consignee filed a formal claim with Wallem
for the value of the damaged shipment, to no avail. Since the
shipment was insured with petitioner Philippines First Insurance

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

1. Whether or not the Court of Appeals erred in not


holding that as a common carrier, the carriers duties
extend to the obligation to safely discharge the cargo
from the vessel;
2. Whether or not the carrier should be held liable for
the cost of the damaged shipment;
3. Whether or not Wallems failure to answer the
extra judicial demand by petitioner for the cost of the
lost/damaged shipment is an implied admission of the
formers liability for said goods;

AGUSTIN, E. P. | 20

4. Whether or not the courts below erred in giving


credence to the testimony of Mr. Talens.
It is beyond question that respondents vessel is a common
carrier.20 Thus, the standards for determining the existence or
absence of the respondents liability will be gauged on the
degree of diligence required of a common carrier. Moreover, as
the shipment was an exercise of international trade, the
provisions of the Carriage of Goods
by Sea Act21 (COGSA), together with the Civil Code and the Code
of Commerce, shall apply.22
The first and second issues raised in the petition will be resolved
concurrently since they are interrelated.
It is undisputed that the shipment was damaged prior to its
receipt by the insured consignee. The damage to the shipment
was documented by the turn-over survey23 and Request for Bad
Order Survey.24 The turn-over survey, in particular, expressly
stipulates that 2,426 bags of the shipment were received by the
arrastre operator in damaged condition. With these documents,
petitioner insists that the shipment incurred damage or losses
while still in the care and responsibility of Wallem and before it
was turned over and delivered to the arrastre operator.
The trial court, however, found through the testimony of Mr.
Maximino Velasquez Talens, a cargo surveyor of Oceanica Cargo
Marine Surveyors Corporation, that the losses and damage to
the cargo were caused by the mishandling of the arrastre
operator. Specifically, that the torn cargo bags resulted from the
use of steel hooks/spikes in piling the cargo bags to the pallet
board and in pushing the bags by the stevedores of the arrastre
operator to the tug boats then to the ports. 25 The appellate court
affirmed the finding of mishandling in the discharge of cargo and
it served as its basis for exculpating respondents from liability,
rationalizing that with the fault of the arrastre operator in the
unloading of the cargo established it should bear sole liability for
the cost of the damaged/lost cargo.
While it is established that damage or losses were incurred by
the shipment during the unloading, it is disputed who should be
liable for the damage incurred at that point of transport. To
address this issue, the pertinent laws and jurisprudence are
examined.
Common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extraordinary
diligence in the vigilance over the goods transported by them.26
Subject to certain exceptions enumerated under Article 1734 27 of
the Civil Code, common carriers are responsible for the loss,
destruction, or deterioration of the goods. The extraordinary
responsibility of the common carrier lasts from the time the
goods are unconditionally placed in the possession of, and
received by the carrier for transportation until the same are
delivered, actually or constructively, by the carrier to the
consignee, or to the person who has a right to receive them.28
For marine vessels, Article 619 of the Code of Commerce
provides that the ship captain is liable for the cargo from the
time it is turned over to him at the dock or afloat alongside the
vessel at the port of loading, until he delivers it on the shore or
on the discharging wharf at the port of unloading, unless agreed
otherwise. In Standard Oil Co. of New York v. Lopez Castelo ,29
the Court interpreted the ship captains liability as ultimately that
of the shipowner by regarding the captain as the representative
of the ship owner.

Lastly, Section 2 of the COGSA provides that under every


contract of carriage of goods by sea, the carrier in relation to the
loading, handling, stowage, carriage, custody, care, and
discharge of such goods, shall be subject to the responsibilities
and liabilities and entitled to the rights and immunities set forth
in the Act.30 Section 3 (2) thereof then states that among the
carriers responsibilities are to properly and carefully load,
handle, stow, carry, keep, care for, and discharge the goods
carried.
The above doctrines are in fact expressly incorporated in the bill
of lading between the shipper Shanghai Fareast Business Co.,
and the consignee, to wit:
4. PERIOD OF RESPONSIBILITY. The responsibility of the carrier
shall commence from the time when the goods are loaded on
board the vessel and shall cease when they are discharged from
the vessel.
The Carrier shall not be liable of loss of or damage to the goods
before loading and after discharging from the vessel, howsoever
such loss or damage arises.31
On the other hand, the functions of an arrastre operator involve
the handling of cargo deposited on the wharf or between the
establishment of the consignee or shipper and the ship's
tackle.32 Being the custodian of the goods discharged from a
vessel, an arrastre operator's duty is to take good care of the
goods and to turn them over to the party entitled to their
possession.33
Handling cargo is mainly the arrastre operator's principal work so
its drivers/operators or employees should observe the standards
and measures necessary to prevent losses and damage to
shipments under its custody.34
In Firemans Fund Insurance Co. v. Metro Port Service, Inc. 35 the
Court explained the relationship and responsibility of an arrastre
operator to a consignee of a cargo, to quote:
The legal relationship between the consignee and the arrastre
operator is akin to that of a depositor and warehouseman. The
relationship between the consignee and the common carrier is
similar to that of the consignee and the arrastre operator. Since
it is the duty of the ARRASTRE to take good care of the goods
that are in its custody and to deliver them in good condition to
the consignee, such responsibility also devolves upon the
CARRIER. Both the ARRASTRE and the CARRIER are therefore
charged with and obligated to deliver the goods in good
condition to the consignee.(Emphasis supplied) (Citations
omitted)
The liability of the arrastre operator was reiterated in Eastern
Shipping Lines, Inc. v. Court of Appeals36 with the clarification
that the arrastre operator and the carrier are not always and
necessarily solidarily liable as the facts of a case may vary the
rule.
Thus, in this case the appellate court is correct insofar as it ruled
that an arrastre operator and a carrier may not be held solidarily
liable at all times. But the precise question is which entity had
custody of the shipment during its unloading from the vessel?
The aforementioned Section 3(2) of the COGSA states that
among the carriers responsibilities are to properly and carefully
load, care for and discharge the goods carried. The bill of lading

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 21

covering the subject shipment likewise stipulates that the


carriers liability for loss or damage to the goods ceases after its
discharge from the vessel. Article 619 of the Code of Commerce
holds a ship captain liable for the cargo from the time it is turned
over to him until its delivery at the port of unloading.
In a case decided by a U.S. Circuit Court, Nichimen Company v.
M./V. Farland,37 it was ruled that like the duty of seaworthiness,
the duty of care of the cargo is non-delegable,38 and the carrier
is accordingly responsible for the acts of the master, the crew,
the stevedore, and his other agents. It has also been held that it
is ordinarily the duty of the master of a vessel to unload the
cargo and place it in readiness for delivery to the consignee, and
there is an implied obligation that this shall be accomplished
with sound machinery, competent hands, and in such manner
that no unnecessary injury shall be done thereto. 39 And the fact
that a consignee is required to furnish persons to assist in
unloading a shipment may not relieve the carrier of its duty as to
such unloading.40
The exercise of the carriers custody and responsibility over the
subject shipment during the unloading actually transpired in the
instant case during the unloading of the shipment as testified by
Mr. Talens, the cargo surveyor, to quote:
Atty. Repol:
- Do you agree with me that Wallem Philippines is a
shipping [company]?
A Yes, sir.
Q And, who hired the services of the stevedores?
A The checker of the vessel of Wallem, sir. 41
xxx
Q Mr. Witness, during the discharging operation of
this cargo, where was the master of the vessel?
A On board the vessel, supervising, sir.
Q And, observed the discharging operation?
A Yes, sir.
Q And, what did the master of the vessel do when the
cargo was being unloaded from the vessel?
A He would report to the head checker, sir.
Q He did not send the stevedores to what manner in
the discharging of the cargo from the vessel?
A And head checker po and siyang nagpapatakbo ng
trabaho sa loob ng barko, sir.42
xxx

Q Is he [the head checker] an employee of the


company?
A He is a contractor/checker of Wallem Philippines,
sir.43
Moreover, the liability of Wallem is highlighted by Mr. Talens
notes in the Bad Order Inspection, to wit:
"The bad order torn bags, was due to stevedores[] utilizing steel
hooks/spikes in piling the cargo to [the] pallet board at the
vessels cargo holds and at the pier designated area before and
after discharged that cause the bags to torn [sic]."44 (Emphasis
supplied)
The records are replete with evidence which show that the
damage to the bags happened before and after their discharge45
and it was caused by the stevedores of the arrastre operator
who were then under the supervision of Wallem.1awphi1.net
It is settled in maritime law jurisprudence that cargoes while
being unloaded generally remain under the custody of the
carrier. In the instant case, the damage or losses were incurred
during the discharge of the shipment while under the supervision
of the carrier. Consequently, the carrier is liable for the damage
or losses caused to the shipment. As the cost of the actual
damage to the subject shipment has long been settled, the trial
courts finding of actual damages in the amount of P397,879.69
has to be sustained.
On the credibility of Mr. Talens which is the fourth issue, the
general rule in assessing credibility of witnesses is well-settled:
x x x the trial court's evaluation as to the credibility of witnesses
is viewed as correct and entitled to the highest respect because
it is more competent to so conclude, having had the opportunity
to observe the witnesses' demeanor and deportment on the
stand, and the manner in which they gave their testimonies. The
trial judge therefore can better determine if such witnesses were
telling the truth, being in the ideal position to weigh conflicting
testimonies. Therefore, unless the trial judge plainly overlooked
certain facts of substance and value which, if considered, might
affect the result of the case, his assessment on credibility must
be respected.46
Contrary to petitioners stance on the third issue, Wallems
failure to respond to its demand letter does not constitute an
implied admission of liability. To borrow the words of Mr. Justice
Oliver Wendell Holmes, thus:
A man cannot make evidence for himself by writing a letter
containing the statements that he wishes to prove. He does not
make the letter evidence by sending it to the party against
whom he wishes to prove the facts [stated therein]. He no more
can impose a duty to answer a charge than he can impose a
duty to pay by sending goods. Therefore a failure to answer
such adverse assertions in the absence of further circumstances
making an answer requisite or natural has no effect as an
admission.47
With respect to the attorneys fees, it is evident that petitioner
was compelled to litigate this matter to protect its interest. The
RTCs award of P20,000.00 as attorneys fees is reasonable.

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 22

WHEREFORE, the petition is GRANTED. The Decision of the


Court of Appeals dated 22 June 2004 and its Resolution dated 11
October 2004 are REVERSED and SET ASIDE. Wallem is ordered
to pay petitioner the sum of P397,879.69, with interest thereon
at 6% per annum from the filing of the complaint on 7 October
1996 until the judgment becomes final and executory.
Thereafter, an interest rate of 12% per annum shall be
imposed.48 Respondents are also ordered to pay petitioner the
amount of P20,000.00 for and as attorneys fees, together with
the costs of the suit.
SO ORDERED.

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 23

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 174141

June 26, 2009

PENTAGON STEEL CORPORATION, Petitioner,


vs.
COURT OF APPEALS, NATIONAL LABOR RELATIONS
COMMISSION and PERFECTO BALOGO, Respondents.
DECISION

During the conciliation proceedings on October 9, 2002, the


respondent presented the medical certificate covering his period
of absence. The petitioner required him, however, to submit
himself to the company physician to determine whether he was
fit to return to work in accordance with existing policies. On
October 22, 2002, still during the conciliation proceedings, the
respondent presented a medical certificate issued by the
company physician; according to the petitioner, the respondent
refused to return to work and insisted that he be paid his
separation pay. The petitioner refused the respondents demand
for separation pay for lack of basis.
On January 20, 2003, the respondent formally amended his
complaint to include his claim of illegal dismissal.7
The Labor Arbiter Ruling

Before this Court is the Petition for Review on Certiorari under


Rule 45 of the Rules of Court filed by Pentagon Steel Corporation
(the petitioner). It seeks to set aside:
(a) the Decision of the Court of Appeals (CA) dated
June 28, 20062 modifying the Decision of the National
Labor Relations Commission (NLRC) dated January
31, 2005;3 and
(b) the Resolution of the CA dated August 15, 2006, 4
denying the motion for reconsideration that the
petitioner subsequently filed.
THE FACTUAL ANTECEDENTS
The petitioner, a corporation engaged in the manufacture of G.I.
wire and nails, employed respondent Perfecto Balogo (the
respondent) since September 1, 1979 in its wire drawing
department. The petitioner alleged that the respondent absented
himself from work on August 7, 2002 without giving prior notice
of his absence. As a result, the petitioner sent him a letter by
registered mail dated August 12, 2002, written in Filipino,
requiring an explanation for his absence. The petitioner sent
another letter to the respondent on August 21, 2002, also by
registered mail, informing him that he had been absent without
official leave (AWOL) from August 7, 2002 to August 21, 2002.
Other letters were sent to the respondent by registered mail, all
pointing out his absences; however, the respondent failed to
respond. Thus, the petitioner considered him on AWOL from
August 7, 2002.5
On September 13, 2002, the respondent filed a complaint with
the
Arbitration
Branch
of
the
NLRC
for
underpayment/nonpayment of salaries and wages, overtime pay,
holiday pay, service incentive leave, 13th month pay, separation
pay, and ECOLA. The respondent alleged that on August 6,
2002, he contracted flu associated with diarrhea and suffered
loose bowel movement due to the infection. The respondent
maintained that his illness had prevented him from reporting for
work for ten (10) days. When the respondent finally reported for
work on August 17, 2002, the petitioner refused to take him
back despite the medical certificate he submitted. On August 19,
2002, the respondent again reported for work, exhibiting a note
from his doctor indicating that he was fit to work. The petitioner,
however, did not allow him to resume work on the same date.
Subsequently, the respondent again reported for work on August
21 and 23, 2002 and October 10 and 18, 2002, to no avail. He
was thus driven to file a complaint against the petitioner. 6

On October 27, 2003, the labor arbiter rendered his decision


dismissing the illegal dismissal charge, but directed the petitioner
"to pay the complainant his SIL and 13th month pay in the
amount of Five Thousand One Hundred Sixty-Six Pesos and
66/100 (P5,166.66)."8
In dismissing the respondents claim of illegal dismissal, the
labor arbiter found that no dismissal took place; thus, the
petitioner never carried the burden of proving the legality of a
dismissal. The labor arbiter noted that the respondents
allegation that he reported for work is not reliable for lack of
corroborating evidence, as the respondent in fact failed to
respond to the petitioners memoranda. Thus, the decision was
confined to the directive to pay service incentive leave and 13th
month pay.
The NLRC Ruling
The respondent appealed the labor arbiters decision to the
NLRC on November 14, 2003, specifically questioning the ruling
that no illegal dismissal took place. On January 31, 2005, the
NLRC Third Division vacated and set aside the decision of the
labor arbiter.9 The decision directed the company to pay the
respondent separation pay, backwages, 13th month pay, and
service incentive leave.10
The NLRC ruled that the petitioners defense of abandonment
has no legal basis since there was no clear intent on the
respondents part to sever the employer-employee relationship.
The NLRC found it difficult to accept the petitioners allegation
that the respondent absented himself for unknown reasons; this
kind of action is inconsistent with the respondents twenty-three
(23) years of service and lack of derogatory record during these
years. As a consequence, the NLRC held that the respondent
was illegally dismissed. Together with this conclusion, however,
the NLRC also considered the strained relationship existing
between the parties and, for this reason, awarded separation
pay in lieu of reinstatement, in addition to backwages. On March
31, 2005, the NLRC denied the petitioners motion for
reconsideration.
The CA Ruling
On May 6, 2006, the petitioner filed a special civil action for
certiorari11 with the CA, alleging grave abuse of discretion on the
part of the NLRC in ruling that illegal dismissal took place, and in
awarding the respondent separation pay and backwages.

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 24

In a Decision dated June 28, 2006, the CA affirmed the NLRCs


finding that the dismissal was illegal, but modified the
challenged decision by adding reinstatement and the payment of
"full backwages, inclusive of allowances and other benefits or
their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual
reinstatement."12
The CA held that the respondent was constructively dismissed
when the petitioner repeatedly refused to accept the respondent
back to work despite the valid medical reason that justified his
absence from work. The CA concluded that the respondent
complied with the petitioners directive to submit a written
explanation when the former presented the medical certificate to
explain his absences.
The CA also disregarded the petitioners charge of abandonment
against the respondent. The appellate court ruled that the
petitioner failed to prove a clear and deliberate intent on the
respondents part to discontinue working with no intention of
returning. The CA took note of the respondents eagerness to
return to work when he obtained a note from his doctor about
his fitness to return to work. The CA also ruled that the
respondents filing of a complaint for illegal dismissal with a
prayer for reinstatement manifested his desire to return to his
job, thus negating the petitioners charge of abandonment.
The CA, however, disagreed with the NLRCs application of the
doctrine of "strained relations," citing jurisprudence that the
doctrine should be strictly applied in order not to deprive an
illegally dismissed employee of his right to reinstatement. The
CA also held that to deny the respondent the benefits due from
his long service with the company would be very harsh since his
long service would not be amply compensated by giving him
only separation pay.
Petitioner moved for reconsideration of the decision, but the CA
denied the motion for lack of merit in the Resolution dated
August 15, 2006.13
In this present petition, the petitioner imputes grave abuse of
discretion against the CA:
1) in basing its decision on the proceedings that
transpired when the parties were negotiating for a
compromise agreement during the preliminary
conference of the case;
2) in declaring that respondent was illegally dismissed
by the petitioner; and
3) in ordering that respondent be reinstated to his
former position with backwages.
THE COURTS RULING
We do not find the petition meritorious.
Before going into the substantive merits of the controversy, we
shall first resolve the propriety of the CAs consideration of the
proceedings that transpired during the mandatory preliminary
conference of the case.
Statements and/or agreements made at conciliation proceedings
are privileged and cannot be used as evidence

The petitioner contends that the CA cannot use the parties


actions and/or agreements during the negotiation for a
compromise agreement as basis for the conclusion that the
respondent was illegally dismissed because an offer of
compromise is not admissible in evidence under Section 27, Rule
130 of the Rules of Court.14
We agree with the petitioner, but for a different reason. The
correct reason for the CAs error in considering the actions and
agreements during the conciliation proceedings before the labor
arbiter is Article 233 of the Labor Code which states that
"[i]nformation and statements made at conciliation proceedings
shall be treated as privileged communication and shall not be
used as evidence in the Commission. Conciliators and similar
officials shall not testify in any court or body regarding any
matters taken up at conciliation proceedings conducted by
them." This was the provision we cited in Nissan Motors
Philippines, Inc. v. Secretary of Labor15 when we pointedly
disallowed the award made by the public respondent Secretary;
the award was based on the information NCMB Administrator
Olalia secured from the confidential position given him by the
company during conciliation.
In the present case, we find that the CA did indeed consider the
statements the parties made during conciliation; thus, the CA
erred by considering excluded materials in arriving at its
conclusion. The reasons behind the exclusion are two-fold.
First, since the law favors the settlement of controversies out of
court, a person is entitled to "buy his or her peace" without
danger of being prejudiced in case his or her efforts fail; hence,
any communication made toward that end will be regarded as
privileged.16 Indeed, if every offer to buy peace could be used as
evidence against a person who presents it, many settlements
would be prevented and unnecessary litigation would result,
since no prudent person would dare offer or entertain a
compromise if his or her compromise position could be exploited
as a confession of weakness.17
Second, offers for compromise are irrelevant because they are
not intended as admissions by the parties making them.18 A true
offer of compromise does not, in legal contemplation, involve an
admission on the part of a defendant that he or she is legally
liable, or on the part of a plaintiff, that his or her claim is
groundless or even doubtful, since it is made with a view to
avoid controversy and save the expense of litigation. It is the
distinguishing mark of an offer of compromise that it is made
tentatively, hypothetically, and in contemplation of mutual
concessions.19
While we agree with the petitioner that the CA should not have
considered the agreements and/or statements made by the
parties during the conciliation proceedings, the CAs conclusion
on illegal dismissal, however, was not grounded solely on the
parties statements during conciliation, but was amply supported
by other evidence on record, which we discuss below. Based on
these other pieces of evidence, the respondent was illegally
dismissed; hence, our ruling regarding the statement made
during conciliation has no effect at all on our final conclusion.
Respondent did not abandon his job
The rule is that the burden of proof lies with the employer to
show that the dismissal was for a just cause. 20 In the present
case, the petitioner claims that there was no illegal dismissal
since the respondent abandoned his job. The petitioner points
out that it wrote the respondent various memoranda requiring

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 25

him to explain why he incurred absences without leave, and


requiring him as well to report for work; the respondent,
however, never bothered to reply in writing.
In evaluating a charge of abandonment, the jurisprudential rule
is that abandonment is a matter of intention that cannot be
lightly presumed from equivocal acts. 21 To constitute
abandonment, two elements must concur: (1) the failure to
report for work or absence without valid or justifiable reason,
and (2) a clear intent, manifested through overt acts, to sever
the employer-employee relationship. The employer bears the
burden of showing a deliberate and unjustified refusal by the
employee to resume his employment without any intention of
returning.22
We agree with the CA that the petitioner failed to prove the
charge of abandonment.
First, the respondent had a valid reason for absenting himself
from work. The respondent presented a medical certificate from
his doctor attesting to the fact that he was sick with flu
associated with diarrhea or loose bowel movement which
prevented him from reporting for work for 10 days. The
petitioner never effectively refuted the respondents reason for
his absence. We thus concur with the CAs view that the
respondent submitted a valid reason for his absence and thereby
substantially complied with the petitioners requirement of a
written explanation. We quote with approval the following
discussion in the CAs decision:
In his case, Balogo should be judged as having fully complied
with the petitioners directive by his presenting of the medical
certificate to justify or explain his absences because the medical
certificate already constituted the required "written explanation."
Another written explanation from him would be superfluous and
even redundant if the facts already appearing in the medical
certificate would inevitably be stated again in that other written
explanation.
Why the petitioner persistently refused to accept Balogo back
despite his presentation of the medical certificate and the
doctors note about his fitness to work was not credibly
explained by the petitioner. The refusal is indicative of the
petitioners ill motive towards him, using the lack of written
explanation as a clever ruse to terminate Balogos employment.
Second, there was no clear intention on the respondents part to
sever the employer-employee relationship. Considering that
"intention" is a mental state, the petitioner must show that the
respondents overt acts point unerringly to his intent not to work
anymore.23 In this case, we see no reason to depart from the
unanimous factual findings of the NLRC and the CA that the
respondents actions after his absence from work for ten (10)
days due to illness showed his willingness to return to work.
Both tribunals found that after the respondent presented his
medical certificate to the petitioner to explain his absence, he
even went back to his doctor for a certification that he was
already fit to return to work. These findings of fact we duly
accept as findings that we must not only respect, but consider as
final, since they are supported by substantial evidence. 24
In addition, the respondents filing of the amended complaint for
illegal dismissal on January 20, 2003 strongly speaks against the
petitioners charge of abandonment, for it is illogical for an
employee to abandon his employment and, thereafter, file a
complaint for illegal dismissal.

That abandonment is negated finds support in a long line of


cases where the immediate filing of a complaint for illegal
dismissal was coupled with a prayer for reinstatement; the filing
of the complaint for illegal dismissal is proof enough of the
desire to return to work.25 The prayer for reinstatement, as in
this case, speaks against any intent to sever the employeremployee relationship.26
We additionally take note of the undisputed fact that the
respondent had been in the petitioners employ for 23 years.
Prior to his dismissal, the respondents service record was
unblemished having had no record of infraction of company
rules. As the NLRC correctly held, we find it difficult to accept
the petitioners allegation that the respondent absented himself
for unjustifiable reasons with the intent to abandon his job. To
our mind, abandonment after the respondents long years of
service and the consequent surrender of benefits earned from
years of hard work are highly unlikely. Under the given facts, no
basis in reason exists for the petitioners theory that the
respondent abandoned his job.
Respondent was constructively dismissed
The above conclusion necessarily leads us to sustain the NLRCs
finding, as affirmed by the CA, that the respondent was
dismissed without just cause. Again, we quote with approval the
CAs disquisition:
That Balogo was dismissed in contravention of the letter and
spirit of the Constitution and the Labor Code on the security of
tenure guaranteed to him as employee is clear for us. A
dismissal need not be expressed orally or in writing, for it can
also be implied. When the employer continuously refuses to
accept the employee back despite his having a valid reason for
his absence from work, illegal dismissal results because the
employee is thus prevented from returning to work under the
faade of a violation of a company directive.
A dismissal effected through the fig leaf of an alleged violation of
a company directive is no less than an actual illegal dismissal
that jurisprudence has labeled as a constructive dismissal. Hyatt
Taxi Services, Inc. v. Catinoy27 describes this type of company
action when it ruled that "[c]onstructive dismissal does not
always involve forthright dismissal or diminution in rank,
compensation, benefit and privileges there may be
constructive dismissal if an act of clear discrimination,
insensibility, or disdain by an employer becomes so unbearable
on the part of the employee that it could foreclose any choice by
him except to forego his continued employment."
The respondents situation is no different from what Hyatt
defined, given the result of the petitioners action and the
attendant insensibility and disdain the employer exhibited. We
significantly note that by reporting for work repeatedly, the
respondent manifested his willingness to comply with the
petitioners rules and regulations and his desire to continue
working for the latter. The petitioner, however, barred him from
resuming his work under the pretext that he had violated a
company directive. This is a clear manifestation of the
petitioners lack of respect and consideration for the respondent
who had long served the company without blemish, but who had
to absent himself because of illness.1avvphi1 The petitioners
actions, under these circumstances, constitute constructive
dismissal.28
The respondents illegal dismissal carries the legal consequence
defined under Article 279 of the Labor Code: the illegally

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 26

dismissed employee is entitled to reinstatement without loss of


seniority rights and other privileges and to his full backwages,
inclusive of allowances and other benefits or their monetary
equivalent, computed from the time his compensation was
withheld from him up to the time of his actual reinstatement.29
The imposition of this legal consequence is a matter of law that
allows no discretion on the part of the decision maker, except
only to the extent recognized by the law itself as expressed in
jurisprudence.

WHEREFORE, premises considered, we hereby DENY the


petition, and, consequently, AFFIRM the Decision of the Court of
Appeals dated June 28, 2006 and its Resolution dated August
15, 2006 in CA-G.R. SP No. 89587.
SO ORDERED.

Respondent is entitled to reinstatement not separation pay


As the CA correctly ruled, the NLRC erred when it awarded
separation pay instead of reinstatement. The circumstances in
this case do not warrant an exception to the rule that
reinstatement is the consequence of an illegal dismissal.
First. The existence of strained relations between the parties was
not clearly established. We have consistently ruled that the
doctrine of strained relations cannot be used recklessly or
applied loosely to deprive an illegally dismissed employee of his
means of livelihood and deny him reinstatement. Since the
application of this doctrine will result in the deprivation of
employment despite the absence of just cause, the
implementation of the doctrine of strained relationship must be
supplemented by the rule that the existence of a strained
relationship is for the employer to clearly establish and prove in
the manner it is called upon to prove the existence of a just
cause; the degree of hostility attendant to a litigation is not, by
itself, sufficient proof of the existence of strained relations that
would rule out the possibility of reinstatement. 30 Indeed, labor
disputes almost always result in "strained relations," and the
phrase cannot be given an overarching interpretation; otherwise,
an unjustly dismissed employee can never be reinstated.31
In the present case, we find no evidentiary support for the
conclusion that strained relations existed between the parties.
To be sure, the petitioner did not raise the defense of strained
relationship with the respondent before the labor arbiter.
Consequently, this issue factual in nature was not the
subject of evidence on the part of both the petitioner and the
respondent. There thus exists no competent evidence on which
to base the conclusion that the relationship between the
petitioner and the respondent has reached the point where their
relationship is now best severed.32 We agree with the CAs
specific finding that the conflict, if any, occasioned by the
respondents filing of an illegal dismissal case, does not merit the
severance of the employee-employer relationship between the
parties.
Second. The records disclose that respondent has been in the
petitioners employ for 23 years and has no previous record of
inefficiency or infraction of company rules prior to his illegal
dismissal from service. We significantly note that payment of
separation pay in lieu of respondents reinstatement will work
injustice to the latter when considered with his long and devoted
years in the petitioners service. Separation pay may take into
account the respondents past years of service, but will deprive
the respondent of compensation for the future productive years
that his security of tenure protects. We take note, too, that the
respondent, after 23 years of service, shall in a few years retire;
any separation pay paid at this point cannot equal the retirement
pay due the respondent upon retirement.
For all these reasons, we uphold the CA ruling that the
respondent should be reinstated to his former position or to a
substantially equivalent position without loss of seniority rights.

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 27

Republic of the Philippines


SUPREME COURT
EN BANC

Epifanio Bolando, petitioner Bolotaulos new counsel, entered his


appearance on December 19, 2004. Atty. Bolando filed his
Compliance dated April 15, 2005 dispensing with the other
exhibits and for submission of the case for resolution. He also
informed us that petitioner Preagido had died on December 16,
2003.

G.R. No. 52341-46 November 25, 2005


DELIA PREAGIDO and ULRICO BOLOTAULO, Petitioners,
vs.
THE SANDIGANBAYAN and THE PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari under Rule 45 of
the Rules of Court filed by petitioners Delia Preagido and Ulrico
Bolotaulo seeking annulment of the Decision1 dated December
28, 1979 of the Sandiganbayan rendered in Criminal Case Nos.
195, 196, 197, 198, 199 and 200 finding them guilty of 6 and 3
counts, respectively, of estafa thru falsification of official and
commercial documents.
In a Resolution dated July 4, 1991, the instant petition was
consolidated with another group of cases which were all
petitions for review on certiorari from the joint decision of the
Sandiganbayan dated October 24, 1990 in Criminal Case Nos.
1143-1341 and 5585-5782 finding accused-petitioners therein
guilty on different counts of violation of Republic Act No. 3019,
as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act.
However, the records of Criminal Case Nos. 195-200 were not
included in the voluminous records of the consolidated cases.
We learned from our Judicial Records Office that the original
records of Criminal Case Nos. 195-200 were with the First
Division of the Sandiganbayan. Thus, in a Resolution dated May
6, 2003,2 we directed the Clerk of Court of the First Division of
the Sandiganbayan to elevate the records of the instant petition.
In the same Resolution, we also effected the separation of the
herein petition of Preagido and Bolotaulo from the other
consolidated cases so as not to delay the disposition of the latter
and considering that the instant petition involves the alleged
anomalous transactions in the Tagbilaran City Engineering Office
(CEO) committed in 1978 which are entirely different from the
other consolidated cases which involved anomalous transactions
in the Cebu Second Highway Engineering District in 1977
wherein neither of herein petitioners were accused.
Later, the Executive Clerk of Court III of the Sandiganbayan,
Atty. Estela Teresita C. Rosete, submitted the original records
and the transcripts of stenographic notes. She also filed a
Manifestation wherein she informed us that despite her earnest
efforts to locate some documentary exhibits, the same could no
longer be found. Thus, in a Resolution dated March 23, 2004, 3
we asked the Solictor General to furnish us copies of the other
unlocated exhibits listed in said Resolution as well as the counsel
of herein petitioners to furnish us copies of their exhibits offered
and marked for petitioners. We also directed them to manifest
whether they are willing to dispense with the other unlocated
exhibits and to submit the case for resolution on the basis of the
evidence already with us.
The Office of the Solicitor General (OSG) filed a Manifestation
dated July 13, 2004 submitting the case for decision. Atty.

On June 21, 2005, the Solicitor General, pursuant to our


Resolution dated March 8, 2005 requiring him to verify and
report the alleged death of petitioner Preagido, submitted a
certified true copy of petitioner Preagidos death certificate
issued by the Office of the City Civil Registrar, Cebu City.
Petitioner Preagidos death during the pendency of her appeal
extinguishes her criminal and civil liabilities. Thus, we will only
resolve the appeal of petitioner Senior Civil Engineer Bolotaulo.
It is noteworthy to mention that when the instant petition was
filed in 1980, the other co-accused of petitioner Bolotaulo in
Criminal Case Nos. 195, 198 and 199 had separately filed their
respective appeals which had been decided by us, to wit:
(1) Valentino G. Castillo vs. Sandiganbayan and the People of
the Philippines, G.R.Nos. L-52352-57,4
(2) Jose C. Bagasao vs. Sandiganbayan and the People of the
Philippines, G.R. Nos. L-53813-53818,5
(3) Isidoro Recamadas vs. Sandiganbayan and the People of the
Philippines, G.R. Nos. L-53694-99,6
(4) Rolando R. Mangubat vs. Sandiganbayan and the People of
the Philippines, G.R.Nos. L-53724-297
where we affirmed the decision of the Sandiganbayan.
We adopt our factual findings in those cases which we now
incorporate as an integral part of herein decision, to wit:
In the regional level, the requisition of funds for public works
purposes, especially in the matter of road and bridge repairs,
involves a graduated series of steps. As found by the respondent
Sandiganbayan, it begins with the Sub-Allotment Advices (SAAs),
as well as the Advices of Cash Disbursement Ceilings (ACDCs),
issued by the Ministry of Public Highways in favor of its
Highways Regional Offices. These serve as the Regional Offices'
authority to obligate and disburse funds. In turn, these become
the sources of funds of the various Engineering Districts
apportioned throughout each region.
The Engineering District then requests for the release of these
funds from the Regional Director through a Program of Work.
The Regional Finance Officer issues a Letter of Advice of
Allotment (LAA), certified as to availability of funds by the
Regional Accountant countersigned by the Regional Director, and
addressed to the District (or City, as the case may be) Engineer.
At the same time, he (the Regional Finance Officer) prepares a
Sub-Advice of Cash Disbursement Ceiling (SACDC) for the
Regional Director.
The LAA and SACDC are subsequently entered in a logbook. The
funds requested are then released.
On the strength of such LAA and SACDC, the District then
prepares a Requisition for Supplies or Equipment (RSE) as well
as a Request for Obligation of Allotment (ROA), pursuant to the

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 28

Program of Work. Both are likewise certified as to availability of


funds by the Regional Accountant and approved by the Regional
Director.
Thereafter, the Property Custodian or the Purchasing Officer, as
the case may be, addresses Requests for Sealed Quotations to
various suppliers, usually through newspaper advertisements or
notices posted in conspicuous places in the District concerned.
After ten days, the Sealed Quotations are submitted to the Price
Verification Committee which determines the lowest bid in the
presence of representatives of the District Engineer and the
Auditor. An Abstract of Sealed Quotations is then signed by the
members of the Committee as well as the said local
representatives. Thereafter, and subject to the approval of the
District Engineer, the proper award is made in favor of the
lowest bidder. On the basis thereof, the Property Custodian
issues a Purchase Order (PO) in favor of the winning bidder,
again subject to the approval of the District Engineer and
certified as to availability of funds by the Regional Accountant.
The supplies thus to be delivered are thereafter inspected
(through Request for Inspection) by the Property Custodian. The
deliveries themselves are recorded in a Tally Sheet after which a
Record of Inspection, certified by the Property Custodian, is
prepared by the representative of the Auditor and the Property
Custodian.
Payment to the supplier is evidenced by a General Voucher (GV).
Among others, the GV contains five parts; (1) a certification of
receipt of supplies to be accomplished by the Property
Custodian; (2) a certification of correctness, that is, that the
expenses are necessary and lawful, and that the prices are not
in excess of the current rates in the locality, to be accomplished
by the Project Engineer; (3) approval by the District Engineer;
(4) a certification, to be accomplished by the Auditor, that the
GV has been properly approved, its account codes proper, and
that it is supported by the proper documents; and (5) a
certification that the GV has undergone pre-audit, to be
accomplished by the Auditor.

Highways Office on behalf of the Tagbilaran CEO, more


specifically described as follows:
LAA No.
107-780-05-78
107-0780-07-78
107-780-012-78
107-780-014-78
107-780-011-78
TOTAL

Date
April 29, 1978
No date
April 24, 1978
April 24, 1978
No date

as well as six SACDCs, as follows:


SACDC No.
022-78
167-78
180-78
193-78
222-78
086-78
TOTAL

Amount
P 26,000
48,100.0
48,100.0
150,000.
150,000.
225,830.
P 699,93

the Tagbilaran CEO prepared RSEs and ROAs for the


procurement of materials and supplies, specifically, anapog
binder, for the projects aforementioned. All five LAAs were
certified as to availability of funds by Rolando Mangubat,
allegedly on behalf of Angelina Escao, Finance Officer of the
Seventh Regional Highways Office (Mangubat signed over her
typewritten name) and countersigned by Jose Bagasao. The six
SACDs were likewise signed by Mangubat for the Regional
Director. The materials requisitioned were supplied by JV Sand &
Gravel & Construction Supply, a private contractorship owned by
James Tiu. Six GVs were prepared therefor, as follows:
GV No.
01-780601

The GV itself must carry with it the following: the RSE, ROA,
Program of Work, Detailed Estimates, Request for Sealed
Quotations, Abstract of Sealed Quotations, PO, Delivery
Receipts, Request for Inspection, Record of Inspection, Test
Reports, and Tax Clearance of the supplier.

01-780606
01-780641
01-780682
01-780684
01-780694

The process winds up with the issuance of the check by the


Cashier in the name of the supplier. Like the GV, the check is
pre-audited and then released.

Program of Work
Restoration of Shoulders, Tagbiliaran North Road
Junction TNR-Airport Road, Junction TNR-Wharf Roa
TCSR
Restoration of Shoulders, Tagbilaran North Road
Junction TNR-Wharf Road
Restoration of Shourders, Tagbilaran Corella-Sikatuna R
Restoration, Totulan-Ubos-Dauis Bridge Approaches
Restoration, Totulan, Ubos-Dauis Bridge Approaches
Restoration, Junction, Tagbilaran East Road-Dauis
Central Road Shoulders and Bridge Approaches
TOTAL

The District Accountant thereafter prepares a Report of


Obligation Incurred (ROI) and a Report of Checks Issued (RCI)
to be submitted to the Regional Office and entered in the
journals and the General Ledger thereof. On the basis thereof,
the Regional Accountant prepares a trial balance to be
recommended by the Finance Officer and approved by the
Regional Director. The same is then submitted to the Ministry of
Public Highways.

representing partial payments in favor of JV Sand & Gravel &


Construction Supply, which has been named as a creditor
therein. The GVs themselves were accompanied by various
supporting papers, among them, the RSEs and ROAs earlier
referred to.8

It appears that from May through June, 1978, the Tagbilaran


City Engineering Office (CEO) embarked on certain projects
involving the restoration of various roads and bridges in
Tagbilaran City. Pursuant to five LAAs addressed to the Ministry
of Public Highways purportedly issued by the Seventh Regional

Eventually, the matter reached the Commission on Audit which


constituted two teams to mount an inquiry.
The investigation disclosed that the above mentioned LAAs as
well as SACDCs were spurious documents, and that the six GVs

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 29

were in fact based on only two LAAs, Nos. 107-780-05-78 and


107-780-014-78. It was further established that the total sum
requested under the said LAAs P474,100.00 supposedly to
cover the Tagbilaran CEO's unliquidated obligations were not in
fact supported by its statement of accounts, under which its
total obligations totalled but P160,639.55. Moreover, the payee,
JV Sand & Gravel & Construction Supply, was not listed in the
City's books as a creditor, for which it could have been entitled
to the sums released.
The Audit Commission likewise observed certain discrepancies in
the GVs in question, notably, that the Programs of Work had
been "split"; that they were dated after the dates of the RSEs;
that while the POs called for 9,369 to 9,375 cubic meters of
anapog binder, the GVs specified but 3,123 to 3,125 cubic
meters thereof apiece; that the Delivery Receipts had been
issued "in lump quantities," did not bear acknowledgment
signatures or were not initialled by the auditor or dated after the
dates of the pre-audit; that the biddings were irregular; and that
anapog had been short-delivered.
The Commission on Audit moreover found that the Highways
Regional Office, as of this period, had in fact released "doubtful"
allotments to ten districts, the Tagbilaran CEO among them, in
the total sum of P24,052,750.00 supposedly to cover
unliquidated obligations, although the statements of account
thereof showed a total of only P2,735,181.98 as and for
unliquidated obligations.
The very books of the Regional Office appeared furthermore to
have been doctored. For while the total unliquidated obligations
totalled only P2,586,306.78, the entry in the Regional Office's
general ledger was P35,509,002.99. And in payment of such
doubtful obligations, the checks issued exceeded the cash
disbursement ceiling by P6,837,971.35. Apparently, it was
Rolando Mangubat who recorded these entries by way of seven
Journal Vouchers (JVs).
It likewise turned out that James Tiu subsequently opened
certain savings accounts at the Allied Bank in favor of Nio
Pilayre, Praxedes Lopena, and Miguel Bulac, although Lopena
insists that as far as she was concerned, she knew nothing
about it.9

"For the maintenance of existing and unabandoned roads and


bridges" in the City of Tagbilaran, which falsifications had been
committed in connection with the functions of their respective
offices, then taking advantage of their official positions and
committing in relation to the functions of their respective offices,
did then and there willfully, unlawfully and feloniously falsify or
cause to have falsified General Voucher,13 covering the sum of
Forty-Nine Thousand Nine Hundred Eighty Pesos (P49,980.00)
for the payment of road shouldering materials (anapog binder),
with the use of the aforesaid falsified Letters of Advice of
Allotment and Sub-advices of Cash Disbursement Ceiling to
support thereof and other documents, such as the Program of
Work/Budget Cost for Roads and Bridges dated May 8, 1978,
Request for Obligation of Allotment dated May 16, 1978,
Abstract of Sealed Quotations, Purchase Orders dated June 9,
1978, Record of Inspection dated June 9, 1978, and other
papers in support thereof, by making it appear that the request
for obligation of allotment was regularly prepared and approved,
that the bidding of materials was properly conducted, that the
corresponding purchase order was prepared in favor of the
lowest bidder, and that the materials purchased were duly and
fully delivered in accordance with specifications and duly
inspected, when in truth and in fact, as the accused fully knew
well, the foregoing transactions were false and simulated, except
that, with the amount of 3,123 cubic meters of anapog binder
having been purchased for the sum of P49,980.00 at the rate of
P16.00 per cubic meter, accused Jimmy Tiu and his
representative accused Engracio Quiroz, by previous
understanding with the accused officials, had caused the delivery
only of (quantity) cubic meters of anapog binders, hence causing
the Government to lose (quantity) cubic meters and worth
(amount) at the rate of P16.00 per cubic meter; thus, the said
accused having in said manner in a narration of facts; and that,
by means of the aforesaid falsifications, the said accused were
able to demand, collect and receive from the government thru
the Tagbilaran City Engineers Office, MPH Regional office No.
VII, the value of the vouchers in question although the amount
due should have been only the value of the actual quantities
delivered, and that, after the accused after having demanded,
collected and received, did then and there willfully, unlawfully
and feloniously misapply, misappropriate and convert to their
own personal use and benefit, and/or consent or, through
negligence, permit other persons to take, misapply,
misappropriate, and convert to their own personal use and
benefit, to the damage and prejudice of the Government.

The Tanodbayan filed six Informations for estafa through


falsification of public and commercial documents against nine
public officials10 and two private individuals11 on the basis of
conspiracy. Later, additional public officials12 were included in
some of these Informations. It is only in Criminal Case Nos. 195,
198 and 199 that petitioner Bolotaulo is a co-accused. Except for
the amounts involved, the quantities of anapog binder allegedly
requisitioned and delivered, the six Informations were uniformly
worded as follows:

All the accused pleaded not guilty to the charges against them.
Joint trial thereafter ensued. In a decision dated December 28,
1979, the Sandiganbayan acquitted accused Sayson, Budget
Examiner II and Quiroz, the employee of accused contractor Tiu;
and convicted the rest of the accused, including Bolotaulo, of
estafa thru falsification of official and commercial documents to
six years of prision correccional to ten years, eight months and
one day of prision mayor each case with the accessories
provided by law, pay the fine of P3,500.00 for each count and
ordered them to pay certain amounts.14

That, in or about and during the period from the months of April
to June, 1978, in the City of Tagbilaran, Philippines, and within
the jurisdiction of this Honorable Court, the public officials, who
by reason of the duties of their office, are accountable officers,
and conspiring and conniving among themselves, as well as with
their private party co-accused, after having falsified or caused to
have falsified Letters of Advice of Allotment No. 107-780-05-78
and No. 107-780-014-78, both dated April 24, 1978 and SubAdvices of Cash Disbursement Ceiling No. 193-78 dated April 28,
1978 and No. 222-78 dated May 2, 1978, which are all public
documents, whereby said accused made it appear that an
amount of Three Hundred Thousand (P300,000.00) had been
lawfully allocated for the City of Tagbilaran from the MPH
Regional Highway Office No. VII, Cebu City, and made available

The Sandiganbayan convicted petitioners and the other accused


on the basis of conspiracy. It found that they were guilty of
conspiring in the falsification of the following documents, to wit:
(1) Letters of Advice of Allotment (LAAs); (2) Sub-Advice of Cash
Disbursement Ceiling (SACDCs); (3) Programs of Work (PWs);
(4) General Vouchers (GVs); (5) Requests for Obligation of
Allotment (ROAs); (6) Abstract of Sealed Quotations; (7)
Purchase Orders (POs); (8) Delivery Receipts and (9) Records of
Inspections (ROIs); that such falsification facilitated the
unauthorized release of funds; and, the supplies allegedly
requisitioned under them were short delivered or not delivered
at all.

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 30

As we have stated earlier, the separate appeals of petitioner


Bolotaulos co-accused Castillo (City Engineer), Bagasao
(Assistant Regional Director), Recamadas (Property Custodian),
and Mangubat (Regional Chief Accountant), were denied and the
decision of the Sandiganbayan was affirmed in Castillo vs.
Sandiganbayan,15 Bagasao vs. Sandiganbayan,16 Recamadas vs.
Sandiganbayan,17 and Mangubat vs. Sandiganbayan.18 We found
in those cases that the projects turned out to be "ghost" projects
since they did not carry the imprimatur of the then Public
Highways Ministry, the various requisition papers having been
falsified to enable the accused to acquire the necessary funding.
Furthermore, the supplies ordered were either short delivered or
not delivered at all. As a result, the government suffered losses
in the total sum of P240,058.0019
We now resolve the appeal of petitioner Ulrico Bolotaulo, Senior
Civil Engineer, Tagbilaran CEO, Ministry of Public Highways, who
was convicted in Criminal Case Nos. 195, 198 and 199.
Petitioner comes to us raising both questions of law and of fact.
The OSG filed its Answer praying for the denial of the instant
petition for review.20
The questions of law are as follows: (1) whether Presidential
Decree No. 1486 as amended by P.D. No. 1606 creating the
Sandiganbayan is an ex post facto law and violates the rights of
the accused to due process and equal protection of law; (2)
whether the Sandiganbayan was validly created and constituted.
The first legal issue had already been settled in Nuez vs.
Sandiganbayan,21 the very first case which upheld the
constitutionality of the P.D. No. 1486 as amended, creating the
Sandiganbayan. We declared that P.D. No. 1486 as amended
was not an ex post facto law and does not violate the due
process and equal protection clauses of the Constitution. Such
ruling was reiterated in many subsequent cases.22
As to the second legal issue, petitioner claims that the
Sandiganbayan was not validly constituted since at the time it
rendered the judgment, it was only composed of one Presiding
Justice and two Associate Justices, thus how could it possibly act
in division when it was never constituted as a whole?
This issue had already been put to rest in De Guzman vs.
People,23 where we held:
Although the Sandiganbayan is composed of a Presiding
Justice and eight Associate Justices, it does not mean that it
cannot validly function without all of the Divisions constituted.
Section 3 of PD 1606 provides that "the Sandiganbayan shall sit
in three divisions of three justices each." While Section 5 thereof
provides that the unanimous vote of the three justices in a
division shall be necessary for the pronouncement of a
judgment.
Thus, the Sandiganbayan functions in Divisions of three Justices
each and each Division functions independently of the other. As
long as a Division has been duly constituted it is a judicial body
whose pronouncements are binding as judgments of the
Sandiganbayan.
The judgment convicting petitioner was a unanimous Decision of
the First Division duly constituted. It thus met the requirement
for the pronouncement of a judgment as required by Section 5
PD 1606 supra.24

Petitioner next raises the issue of the sufficiency of evidence


upon which his conviction was predicated. He argues that estafa
cannot be committed in the absence of any statement from the
government of fund loss; that the checks covering the
questioned transactions in the Tagbilaran CEO were not
dishonored by the drawee bank; and that there was no concrete
evidence shown by the prosecution to establish underdeliveries.
We are not impressed.
The prosecution had clearly established that because of the fake
LAAs, SACDCs and the general vouchers with all its supporting
documents, the government through the Tagbilaran CEO had
disbursed funds for projects which were short delivered. Since
there were short deliveries of anapog binder to the alleged
projects sites, it resulted to the government suffering losses. We
quote with approval the findings of the Sandiganbayan on this
matter, thus:
It is only logical that, if funds are disbursed without any
appropriation, there is actually a payment of money out of the
Treasury without any sanction in law. In such case, the
Government suffers a loss of so much as is disbursed. Of course,
in the cases at bar, the People adopted a more realistic approach
to the situation. It opted to hold the perpetrators of the
fraudulent transactions liable only up to the amount of the actual
loss sustained, evidently because it concedes that there had
been some deliveries, albeit minimal. And, there can be no
question that, if a contract is entered into with the Government
for a given quantity of materials and the entire contract price is
paid but only a quantity less than that contracted for is actually
delivered, the Government would naturally be prejudiced to the
extent of the value of the materials not delivered. This is
precisely what happened here. Therefore, it is altogether offtangent for the accused to contend that, because no statement
of loss consequent to the transactions here involved had been
presented from the National Treasury or from the Philippine
National Bank, no justifiable finding of damage to the
Government can be made. This would be closing ones eyes to
reality. For, the stark reality is that certain amounts have in fact
been paid by the Government for materials that were shortdelivered. Accordingly, we hold that damage to the extent of the
value of said short-delivery was sustained. Considering that it is
undeniable that the damage came about thru the deceitful
medium of the multiple falsifications here found to have been
perpetrated, it is ineluctably clear that said falsifications were the
means to the perpetration of a crime of estafa. As correctly
formulated in the Informations herein, the crime committed in
each of the cases at bar is estafa thru falsification of public
documents.
This ushers the Court to the determination of the extent of the
damage caused to the Government. On this score, the evidence
bears looking into. Restituto Castro, testifying for the People,
detailed the volume of deliveries made to various sections of the
roads and bridge approaches covered by the projects here
involved based on his counting of truckloads of anapog extracted
from the Belderol Co and Picmao quarries and brought to the
restoration sites. On the other hand, Assistant Provincial
Engineer Sarmiento also made documented estimates of the
volume of anapog delivered and significantly, enough, even after
reckoning with pertinent factors bearing on the matter-including
the time lapse between the date of spreading and the date of
inspection, the effect of erosion, and a shrinkage factor of 20%
and 30% as the case may be- came up with figures higher than
those arrived at by Castro. So much so that, giving the defense
the benefit of the doubt, the Court elects to go by the figures
furnished by Engineer Sarmiento as bases for reckoning the
damage caused. For this purpose, the amount to be considered

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 31

as starting point should be the face value of the respective


checks actually paid to accused Tiu, that is to say, deducting the
amount paid to the City Treasurer for Mining Fees. And, the
value of anapog delivered should be taken at the price it was
supposed to have been sold to the Government, that is P16.00
per cubic meter. On this (sic) bases, the damage may be
computed as follows Case Amount Delivery Value of DAMAGE

No satisfactory explanation was advanced by petitioner on why


the RSEs antedated the programs of work as all he could say
was that it was not his concern which of these two came ahead
as long as that at the time he was signing the general voucher,
the program of work was there.31 As the Sandiganbayan found,
it unmasks the RSEs and/or Programs of Work as falsificiations
since the former cannot be said to be "O.K. as to program of
work," as therein stated since at the time of their preparation,
no program of work was yet in existence and that the latter can
only be said to have been subsequently prepared to plug a
veritable loophole.32

No. Paid Volume Delivery


195- P 47,637.75 566- P9,056.00- P 38,581.75
196- 47,636.25 12- 192.00- 47,444.25
197- 47,636.25 624- 9,984.00- 37,652.25
198- 47,637.75 none- none- 47,637.75
199- 47,637.75 1,496- 23,936.00- 23,701.75
200- 47,636.25 106- 1,696.00- 45,940.25
P 240,958.0025
It bears stressing that the fraudulent issuances of the LAAs,
SACDCs, GVs and its supporting documents and the journal
vouchers and short deliveries are now settled issues. As we have
earlier stated, we upheld the findings of the Sandiganbayan in
four petitions brought to us by the four co-accused of herein
petitioners which involved the same decision of the
Sandiganbayan in Criminal Case Nos. 195 to 200 covering the
same transactions.26
Thus, the only issue now is whether the Sandiganbayan is
correct in finding petitioner Bolotaulo guilty of conspiracy in
committing the crime charged.
Petitioner Bolotaulo was convicted for his signature in the RSEs,
in the abstract of sealed quotations and for signing the general
voucher certifying that the expenses are necessary, lawful and
incurred under his direct supervision, and that the price is just
and reasonable and not in excess of the current rates in the
locality. He, however, contends that he merely performed his
duties and responsibilities in affixing his signatures on those
documents.
We are not persuaded.
Petitioner, as the Senior Civil Engineer of the Tagbilaran CEO,
was the one who prepared the three Request for Supplies or
Equipment (RSEs)27 which were all dated April 11, 1978 allegedly
on the basis of three programs of work he recommended for
approval which were all dated May 8, 1978. Notably, however,
the RSEs antedated the programs of work which is an
anomalous circumstance since the RSEs needed for the
prosecution of the projects are only based on the programs of
work. In fact, petitioner, in his cross-examination, admitted that
he cannot prepare a RSE without an approved program of
work28 and that it is the normal and regular procedure;29 that if
the program of work is prepared later than the RSE, there must
be something irregular about it.30

In fact, the RSEs are not even in accord with the program of
work. While petitioner recommended the approval of the three
programs of work each calling for the use of 3,123 cubic meters
of selected borrow (Item 108) as well as the detailed estimates
which also called for the use of selected borrow, the three RSEs
which petitioner prepared called for the use of anapog binder.
No explanation was offered as to why there was such a
discrepancy.
Notably, petitioner Bolotaulo recommended for approval three
programs of work which all cost not more than P50,000.00 each.
As established by the testimony of prosecution witness, Miguel
V. Bulac, this was so since petitioner Bolotaulos co-accused City
Engineer Castillo could not approve program of work exceeding
P50,000.00 because in excess of that amount, the program of
work has to be approved by the Regional Director. 33 In fact,
Engr. Castillo admitted that program of work in excess of
P50,000.00 needs the approval of the region.34 As we earlier
stated, we affirmed the conviction of City Engineer Castillo.35
Petitioner Bolotaulo signed three GVs certifying that the
expenses are necessary, lawful and incurred under his direct
supervision, and that the price is just and reasonable and not in
excess of the current rates in the locality. Attached to these GVs
as supporting documents are the programs of work, the RSEs,
the requests for sealed quotations and the purchase orders
among others. He signed the GVs despite the fact that the RSEs
antedated the programs of work. He could not have failed to
notice that there was only one set of request for sealed
quotation for the total of 9,369 cubic meters of anapog binders
and one purchase order which supported the three GVs all for
amounts less than P50,000.00 each to the same contractor/
supplier James Tiu. The issuance of three GVs for amounts less
than P50,000.00 each was resorted to since a higher amount
would have required the vouchers to be forwarded to the
Regional Auditor for action and review. The RSEs and the GVs
had been split into uniform amounts of not more than
P50,000.00 each which is a clear case of splitting of requisitions
and general vouchers prohibited by the Commission on Audit
Circular No. 76- 41 dated July 30, 1976.
As defined by the Circular, "splitting" in its literal sense means
dividing or breaking up into separate parts or portions, or an act
resulting in a fissure, rupture, breach. Within the sphere of
government procurement, splitting is associated with
requisitions, purchase orders, deliveries and payments.
Splitting may be in the form of (1) Splitting of Requisi3tions
which consists in the non-consolidation of requisitions for one or
more items needed at about the same time by the requisitioner;
(2) Splitting of Purchase orders which consists in the issuance of
two or more purchase orders based on two or more requisitions
for the same or at about the same time by the different
requisitioners; and (3) Splitting of payments which consists in
making two or more payments for one or more items involving
one purchase order. These forms of splitting are resorted to in

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 32

order to avoid (a) inspection of deliveries, (b) action, review or


approval by higher authorities; or (c) public bidding.
There is also no truth to petitioner Bolotaulos certification in the
general voucher that the price of the materials requisitioned is
just and reasonable and not in excess of the current rates in the
locality considering that it was established that there was
irregularity in the bidding held on May 24, 1978. 36 As the
Sandiganbayan found:

In the same vein, the record is clear that, prior to the pre-audit
of all GVs here involved, defects and irregularties respecting the
bidding conducted in connection with the procurement of the
materials purchased were brought home to the knowledge of all
concerned, particularly the District Auditor. A letter was actually
written by accused Lopea to accused Castillo officially bringing
to his attention the defects and irregularities aforesaid (Exhibit
G-22). Another letter was also written by accused Lopea to
accused Castillo returning the GVs (Exhibits D, E and H) because
of defects like splitting, lack of ROA, and others. And yet,
without anything being done to correct the defects and/or supply
the deficiencies except the mere explanation of accused Castillo
that the defects are mere clerical errors or that the objections
are tardy, the GVs involved herein were nevertheless eventually
passed on pre-audit. Since the bidding is defective, necessarily,
the certification as to the justness and reasonableness of the
price and that it is not in excess of the current price in the
locality becomes a falsehood.
We likewise find no merit in petitioners claim that the
Sandiganbayan erred in finding the existence of conspiracy in
the alleged commission of the crime. We are indeed convinced
that conspiracy has been clearly established by the evidence
presented by the prosecution. The whole scheme started with
the issuances of fake LAAs, which give the authority to obligate,
and the SACDCs, the authority to disburse funds, to the
Tagbilaran CEO for the alleged purpose of prosecuting certain
projects. The Tagbilaran Office which was fully aware of the fake
LAAs and SACDCs, made it appear that there were valid
requisitions, public bidding and purchase order which all turned
out to be also falsified. General vouchers were prepared and
checks pursuant thereto were issued in payment to the
supplier/contractor for materials which turned out to be short
delivered or not delivered at all. As correctly held by the
Sandiganbayan:

Finally, petitioner argues that assuming that there were


admissions from the other co-accused, the alleged conspiracy
must first be proven by evidence other than the declaration of a
co-conspirator citing Section 27 of Rule 130, Rules of Court, to
wit:
Sec. 27. Admission by conspirator- The act or declaration of a
conspirator relating to the conspiracy and during its existence,
may be given in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act or
declaration.
The argument is devoid of merit.
Section 27 of Rule 130 of the Rules of Court applies only to
extrajudicial acts or declarations but not to testimony given on
the witness stand at the trial where the defendant has the
opportunity to cross-examine the declarant.38
All told, we are convinced that the prosecution has successfully
established beyond doubt that petitioner Bolotaulo is guilty of
the crimes charged.
WHEREFORE, the petition is DENIED for lack of merit. The
Decision of the Sandiganbayan dated December 28, 1979 insofar
as petitioner Ulrico Bolotaulo is concerned is AFFIRMED. The
cases against petitioner Delia Preagido are DISMISSED in view
of her demise on December 16, 2003.
SO ORDERED.

It will readily be discerned from the facts in the case at bar


that the defraudation perpetrated upon the Government was
launched with the issuance of the fake LAAs in the Regional
office, gained momentum as it wound its way thru the intricate
paces of the procurement and payment processes in the District
Office, and was put to rest with the execution of the fake JVs
also in the Regional office. A veritable umbilical cord that ties the
accused in the Regional office with those in the District Office is
thus unmistakable. Such that even if the acts imputed to each
accused may, at first blush, appear disconnected and separate
from those of the others, there is nevertheless that common
thread of sentiment, intent and purpose to attain the same end
that runs thru the entire gamut of acts separately perpetrated by
them. After all, conspiracy implies concert of design more than
participation in every act of execution. Like links in a chain, the
role played by each accused is so indispensable to the success of
the fraud that, without any of them, the scheme would have
failed. In this posture, a conspiracy is made out that as a result,
the act of one is the act of all.37

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 33

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 177727

January 19, 2010

HAROLD V. TAMARGO, Petitioner,


vs.
ROMULO AWINGAN, LLOYD ANTIPORDA and LICERIO
ANTIPORDA, JR., Respondents.
DECISION
CORONA, J.:
This is a petition for review on certiorari1 of the November 10,
2006 decision2 and May 18, 2007 resolution3 of the Court of
Appeals (CA) in CA-G.R. SP No. 93610.
Atty. Franklin V. Tamargo and his eight-year-old daughter, Gail
Franzielle, were shot and killed at around 5:15 p.m. of August
15, 2003 along Nueva Street corner Escolta Street, Binondo,
Manila. The police had no leads on the perpetrators of the crime
until a certain Reynaldo Geron surfaced and executed an
affidavit dated September 12, 2003. He stated that a certain
Lucio Columna told him during a drinking spree that Atty.
Tamargo was ordered killed by respondent Lloyd Antiporda and
that he (Columna) was one of those who killed Atty. Tamargo.
He added that he told the Tamargo family what he knew and
that the sketch of the suspect closely resembled Columna. 4
After conducting a preliminary investigation and on the strength
of Gerons affidavit, the investigating prosecutor5 issued a
resolution dated December 5, 2003 finding probable cause
against Columna and three John Does. 6 On February 2, 2004,
the corresponding Informations for murder were filed against
them in the Regional Trial Court (RTC) of Manila, one assigned
to Branch 27 for the death of Atty. Franklin Tamargo, and the
other to Branch 29 for the death of the minor Gail Franzielle. 7
Columna was arrested in the province of Cagayan on February
17, 2004 and brought to Manila for detention and trial.8
On March 8, 2004, Columna (whose real name was Manuel, Jr.)
executed an affidavit wherein he admitted his participation as
"look out" during the shooting and implicated respondent
Romulo Awingan (alias "Mumoy") as the gunman and one
Richard Mecate. He also tagged as masterminds respondent
Licerio Antiporda, Jr. and his son, respondent Lloyd Antiporda.9
The former was the ex-mayor and the latter the mayor of
Buguey, Cagayan at that time. When the killing took place,
Licerio Antiporda was in detention for a kidnapping case in which
Atty. Tamargo was acting as private prosecutor.
Pursuant to this affidavit, petitioner Harold V. Tamargo (brother
of Atty. Tamargo) filed a complaint against those implicated by
Columna in the Office of the City Prosecutor of Manila. 10
On April 19, 2004, Columna affirmed his affidavit before the
investigating prosecutor11 who subjected him to clarificatory
questions.12
Respondents denied any involvement in the killings. They
alleged that Licerio was a candidate for mayor in Buguey,

Cagayan during the May 2004 elections and that the case was
instituted by his political opponents in order to derail his
candidacy. The Antipordas admitted that Atty. Tamargo was
their political rival for the mayoralty post of Buguey. Atty.
Tamargo had been defeated twice by Lloyd and once by Licerio.
Before the killing, Atty. Tamargo filed an election case against
Lloyd and a kidnapping case in the Sandiganbayan against
Licerio. However, they claimed that both cases were dismissed
as Lloyd emerged as the winner in the elections and Licerio was
acquitted by the Sandiganbayan.13
During the preliminary investigation, respondent Licerio
presented Columnas unsolicited handwritten letter dated May 3,
2004 to respondent Lloyd, sent from Columnas jail cell in
Manila. In the letter, Columna disowned the contents of his
March 8, 2004 affidavit and narrated how he had been tortured
until he signed the extrajudicial confession. He stated that those
he implicated had no participation in the killings. 14 Respondent
Licerio also submitted an affidavit of Columna dated May 25,
2004 wherein the latter essentially repeated the statements in
his handwritten letter.
Due to the submission of Columnas letter and affidavit, the
investigating prosecutor set a clarificatory hearing, to enable
Columna to clarify his contradictory affidavits and his unsolicited
letter. During the hearing held on October 22, 2004, Columna
categorically admitted the authorship and voluntariness of the
unsolicited letter. He affirmed the May 25, 2004 affidavit and
denied that any violence had been employed to obtain or extract
the affidavit from him.151avvphi1
Thus, on November 10, 2004, the investigating prosecutor
recommended the dismissal of the charges. This was approved
by the city prosecutor.
Meanwhile, in another handwritten letter addressed to City
Prosecutor Ramon Garcia dated October 29, 2004, Columna said
that he was only forced to withdraw all his statements against
respondents during the October 22, 2004 clarificatory hearing
because of the threats to his life inside the jail. He requested
that he be transferred to another detention center.16
Aggrieved by the dismissal of the charges, petitioner filed an
appeal to the Department of Justice (DOJ).17 On May 30, 2005,
the DOJ, through then Secretary Raul M. Gonzalez, reversed the
dismissal and ordered the filing of the Informations for murder.18
He opined that the March 8, 2004 extrajudicial confession was
not effectively impeached by the subsequent recantation and
that there was enough evidence to prove the probable guilt of
respondents.19 Accordingly, the Informations were filed and the
cases were consolidated and assigned to the RTC of Manila,
Branch 29.20
However, on August 12, 2005, Secretary Gonzales granted the
Antipordas motion for reconsideration (MR) and directed the
withdrawal of the Informations.21 This time, he declared that the
extrajudicial confession of Columna was inadmissible against
respondents and that, even if it was admissible, it was not
corroborated by other evidence.22 As a result, on August 22,
2005, the trial prosecutor filed a motion to withdraw the
Informations. On October 4, 2005, Secretary Gonzalez denied
petitioners MR.
The RTC, through Judge Cielito Mindaro-Grulla, granted the
motion to withdraw the Informations in an order dated October
26, 2005.23 Petitioner filed an MR but the judge voluntarily
inhibited herself without resolving the same. The cases were re-

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 34

raffled to Branch 19, presided by Judge Zenaida R. Daguna.


Judge Daguna granted the MR of petitioner in a resolution dated
December 9, 2005. She ruled that, based on Columnas March 8,
2004 affidavit which he affirmed before the investigating
prosecutor, there was probable cause to hold the accused for
trial. She denied the MR of the Antipordas in an order dated
February 6, 2006.
Consequently, respondent Awingan filed a special civil action for
certiorari and prohibition in the CA docketed as CA-G.R. SP No.
93610. The Antipordas separately filed another certiorari case
docketed as CA-G.R. SP No. 94188.
In a decision dated November 10, 2006 in CA-G.R. SP No.
93610, the CA ruled that the RTC judge gravely abused her
discretion because she arbitrarily left out of her assessment and
evaluation the substantial matters that the DOJ Secretary had
fully taken into account in concluding that there was no probable
cause against all the accused. It also held that Columnas
extrajudicial confession was not admissible against the
respondents because, aside from the recanted confession, there
was no other piece of evidence presented to establish the
existence of the conspiracy. Additionally, the confession was
made only after Columna was arrested and not while the
conspirators were engaged in carrying out the conspiracy.
After this decision was promulgated, CA-G.R. SP No. 93610 was
consolidated with CA-G.R. SP No. 94188. The CA denied
reconsideration in a resolution dated May 18, 2007. In a decision
dated August 24, 2007, the CA likewise granted the petition for
certiorari of respondents Antiporda.24
Petitioner filed this petition assailing the decision in CA-G.R. SP
No. 93610. Later on, he filed an amended petition impleading
respondents Antiporda and likewise assailing the CA decision in
CA-G.R. SP No. 94188. The Court treated this as a supplemental
petition.
The main issue for our resolution is whether or not the CA erred
in finding that Judge Daguna had committed grave abuse of
discretion in denying the withdrawal of the Informations for
murder against respondents.
Petitioner argues that, based on the independent assessment of
Judge Daguna, there was probable cause based on the earlier
affidavit of Columna. She considered all the pieces of evidence
but did not give credit to Columnas recantation.
Respondents counter that Judge Daguna committed grave abuse
of discretion by limiting her evaluation and assessment only to
evidence that supported probable cause while completely
disregarding contradicting evidence. They also contend that
Columnas extrajudicial confession was inadmissible against
respondents because of the rule on res inter alios acta.
We find no merit in the petition.
It is settled that, when confronted with a motion to withdraw an
Information (on the ground of lack of probable cause to hold the
accused for trial based on a resolution of the DOJ Secretary), the
trial court has the duty to make an independent assessment of
the merits of the motion.25 It may either agree or disagree with
the recommendation of the Secretary. Reliance alone on the
resolution of the Secretary would be an abdication of the trial
courts duty and jurisdiction to determine a prima facie case.26

The court must itself be convinced that there is indeed no


sufficient evidence against the accused.27
We agree with the CA that Judge Daguna limited herself only to
the following: (1) Columnas affidavit dated March 8, 2004
wherein he implicated the respondents in the murders; (2) his
affirmation of this affidavit during the April 19, 2004 clarificatory
hearing; (3) his letter dated October 29, 2004 and (4) the May
30, 2005 DOJ resolution upholding the prosecutors
recommendation to file the murder charges.28
She completely ignored other relevant pieces of evidence such
as: (1) Columnas May 3, 2004 letter to respondent Lloyd
Antiporda narrating the torture he suffered to force him to admit
his participation in the crimes and to implicate the respondents;
(2) his May 25, 2004 affidavit where he stated that neither he
nor the respondents had any involvement in the murders and (3)
his testimony during the October 22, 2004 clarificatory hearing
wherein he categorically affirmed his May 3, 2004 letter and May
25, 2004 affidavit.
We declared in Jimenez v. Jimenez29 that
[although] there is no general formula or fixed rule for the
determination of probable cause since the same must be decided
in the light of the conditions obtaining in given situations and its
existence depends to a large degree upon the finding or opinion
of the judge conducting the examination, such a finding
should not disregard the facts before the judge nor run
counter to the clear dictates of reason. The judge or
fiscal, therefore, should not go on with the prosecution
in the hope that some credible evidence might later turn
up during trial for this would be a flagrant violation of a
basic right which the courts are created to uphold. 30
(Emphasis supplied)
Had Judge Daguna reviewed the entire records of the
investigation, she would have seen that, aside from the pieces of
evidence she relied on, there were others which cast doubt on
them. We quote with approval the reflections of the CA on this
point:
The selectivity of respondent RTC Judge for purposes of
resolving the motion to withdraw the informations effectively
sidetracked the guidelines for an independent assessment and
evaluation of the merits of the case. Respondent RTC Judge thus
impaired the substantial rights of the accused. Instead, she
should have made a circumspect evaluation by looking at
everything made available to her at that point of the cases. No
less than that was expected and required of her as a judicial
officer. According to Santos v. Orda, Jr., the trial judge may
make an independent assessment of the merits of the case
based on the affidavits and counter-affidavits, documents, or
evidence appended to the Information; the records of the public
prosecutor which the court may order the latter to produce
before the court; or any evidence already adduced before the
court by the accused at the time the motion is filed by the public
prosecutor.31
Moreover, Judge Daguna failed to consider that Columnas
extrajudicial confession in his March 8, 2004 affidavit was not
admissible as evidence against respondents in view of the rule
on res inter alios acta.

Res inter alios acta alteri nocere non debet. The rule on res inter
alios acta provides that the rights of a party cannot be

prejudiced by an act, declaration, or omission of another.32

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 35

Consequently, an extrajudicial confession is binding only on the


confessant, is not admissible against his or her co-accused33 and
is considered as hearsay against them. 34 The reason for this rule
is that:
on a principle of good faith and mutual convenience, a mans
own acts are binding upon himself, and are evidence against
him. So are his conduct and declarations. Yet it would not only
be rightly inconvenient, but also manifestly unjust, that a man
should be bound by the acts of mere unauthorized strangers;
and if a party ought not to be bound by the acts of strangers,
neither ought their acts or conduct be used as evidence against
him.35

withdrawal of the Informations for murder against them were


issued with grave abuse of discretion.
Hence, we hold that the CA committed no reversible error in
granting the petitions for certiorari of respondents.
WHEREFORE, the petition is hereby DENIED.
No pronouncement as to costs.
SO ORDERED.

An exception to the res inter alios acta rule is an admission


made by a conspirator under Section 30, Rule 130 of the Rules
of Court:
Admission by conspirator. The act or declaration of a
conspirator relating to the conspiracy and during its existence,
may be given in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act or
declaration.1avvphi1
This rule prescribes that the act or declaration of the conspirator
relating to the conspiracy and during its existence may be given
in evidence against co-conspirators provided that the conspiracy
is shown by independent evidence aside from the extrajudicial
confession.36 Thus, in order that the admission of a conspirator
may be received against his or her co-conspirators, it is
necessary that (a) the conspiracy be first proved by evidence
other than the admission itself (b) the admission relates to the
common object and (c) it has been made while the declarant
was engaged in carrying out the conspiracy. 37 Otherwise, it
cannot be used against the alleged co-conspirators without
violating their constitutional right to be confronted with the
witnesses against them and to cross-examine them.38
Here, aside from the extrajudicial confession, which was later on
recanted, no other piece of evidence was presented to prove the
alleged conspiracy. There was no other prosecution evidence,
direct or circumstantial, which the extrajudicial confession could
corroborate. Therefore, the recanted confession of Columna,
which was the sole evidence against respondents, had no
probative value and was inadmissible as evidence against them.
Considering the paucity and inadmissibility of the evidence
presented against the respondents, it would be unfair to hold
them for trial. Once it is ascertained that no probable cause
exists to form a sufficient belief as to the guilt of the accused,
they should be relieved from the pain of going through a full
blown court case.39 When, at the outset, the evidence offered
during the preliminary investigation is nothing more than an
uncorroborated extrajudicial confession of an alleged
conspirator, the criminal complaint should not prosper so that
the system would be spared from the unnecessary expense of
such useless and expensive litigation.40 The rule is all the more
significant here since respondent Licerio Antiporda remains in
detention for the murder charges pursuant to the warrant of
arrest issued by Judge Daguna.41
Indeed, at that stage of the proceedings, the duty of Judge
Daguna was only to satisfy herself whether there was probable
cause or sufficient ground to hold respondents for trial as coconspirators. Given that she had no sufficient basis for a finding
of probable cause against respondents, her orders denying the

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 36

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 180197

June 23, 2009

FRANCISCO N. VILLANUEVA, Petitioner,


vs.
VIRGILIO P. BALAGUER and INTERCONTINENTAL
BROADCASTING CORPORATION CHANNEL-13,
Respondents.
DECISION
YNARES-SANTIAGO, J.:
Assailed is the August 10, 2007 Decision1 of the Court of Appeals
in CA-G.R. CV No. 81657 which reversed the October 29, 2003
Decision and February 2, 2004 Resolution of the Regional Trial
Court of Quezon City, Branch 89 finding petitioner Francisco N.
Villanueva entitled to damages. Also assailed is the October 16,
2007 Resolution2 denying the motion for reconsideration.
On March 31, 1992, petitioner Francisco N. Villanueva, then
Assistant Manager for Operations of Intercontinental
Broadcasting Corporation-Channel 13 (IBC-13) was dismissed
from employment on the ground of loss of confidence for
purportedly selling forged certificates of performance. Contesting
his termination, petitioner filed a complaint for illegal dismissal
before the National Labor Relations Commission.
During the pendency of the labor case, news articles about
irregularities in IBC-13 were published in the July 18, 1992 issue
of the Manila Times and the Philippine Star, and in the July 19,
1992 issue of the Manila Bulletin.
In these news articles, respondent Virgilio P. Balaguer, then
President of IBC-13, was quoted to have said that he uncovered
various anomalies in IBC-13 during his tenure which led to the
dismissal of an operations executive for selling forged certificates
of performance.
In the Manila Times, on July 18, 1992:3
Anomalies at IBC-13 uncovered
INSIDER pilferage, malversation, overpricing and other
irregularities have cost government-owned Intercontinental
Broadcasting Corporation (IBC) 13 more than P108 million in
losses for the period 1986-1989.
Gil P. Balaguer, IBC president, uncovered the anomalies after a
long and painstaking investigation when he took over the
company in 1990.
The investigation uncovered irregularities ranging from selling
forged certificates of performance (CPs) to non-remittance of
sales collections, illegal and unauthorized airing of movie trailer
advertisements (MTAs), illegal leasing of electricity and
machines to "friendly clients," millions worth of undocumented

transactions to movie suppliers, exorbitant fees against in-house


productions, abused overtime charges by certain employees.
The anomalies did not escape Balaguer when he came to IBC-13
backed by hands-on experience in television management work.
IBC has had four presidents since 1986 after the EDSA
revolution. Balaguer is the fifth president.
A special investigative committee helped Balaguer uncover the
anomalies in IBC. It led to the dismissal of an operations
executive who sold forged certificates of performance, a former
supervisor who pocketed IBCs sales collections, and station
managers who did not remit payments on radio advertisements.
Other anomalies committed against the government station
include the loose issuance of technical facilities orders (TFOs)
which practically leased the networks broadcast facilities to a
"friendly client" for free.
Balaguer, sources said, succeeded in staying as president
because of his technical expertise in media and communications
and his "managerial will" to cleanse the ranks of the firm.
(Emphasis supplied)
In the Philippine Star, on July 18, 1992:4
IBC president uncovers anomalies at tv network
The government-owned International Broadcasting Corp.Channel 13 lost more than P108 million due to insider pilferage,
malversation, overpricing and other irregularities from 1986 to
1989.
IBC president Gil P. Balaguer uncovered the anomalies after "a
long and painstaking investigation" when he took over the
television station in 1990.
Balaguer, in a statement, said the irregularities uncovered
included the sale of forged certificates of performance, nonremittance of sales collections, illegal and unauthorized airing of
movie advertisements, illegal lease of equipment to "friendly"
clients, exorbitant fees on in-house productions and abused
overtime charges by some employees.
Balaguer, the fifth IBC president since 1986, easily detected the
anomalies as he has a vast experience in television management
work.
A special investigative committee helped Balaguer uncover the
anomalies at IBC, which has resulted in the dismissal of an
operations executive who sold forged certificates of
performance, a former supervisor who pocketed sales collections
and a station manager who did not remit payments on radio
advertisements. (Emphasis supplied)
In the Manila Bulletin, on July 19, 1992:5
Sequestered firms losses bared
The Intercontinental Broadcasting Corp. (IBC) 13, a sequestered
firm, lost more than P108 million for the period 1986-1989 due
to pilferage, malversation, over-pricing, and other irregularities

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 37

perpetrated by a syndicate, according to Gil P. Balaguer, IBC


president, who took over the company in 1990.
He said the irregularities ranged from selling forged certificates
of performance to non-remittance of sales collections, illegal and
unauthorized airing of movie trailer advertisements, illegal
leasing of electricity and machines to "friendly clients," millions
worth of undocumented transactions to movie suppliers,
exorbitant fees against in-house productions, and abused
overtime charges by certain employees.
IBC has had four presidents since 1986, Balaguer being the fifth.
A special probe committee that helped Balaguer said one
dismissed executive sold forged certificates of performance, a
former supervisor pocketed IBC sales collections, and some
station managers did not remit payments on radio
advertisements.

December 6, 1994, the parties entered into a Compromise


Agreement,20 with IBC-13 proposing a scheme of payment for
petitioners monetary claims, and with IBC-13 and petitioner
waiving any and all claims against each other arising out of the
labor case.
On October 29, 2003, the Regional Trial Court 21 of Quezon City
held that petitioner is entitled to an award of damages, 22 thus:
WHEREFORE, premises considered, judgment is rendered in
favor of plaintiff Francisco N. Villanueva and against defendants
Balaguer and Intercontinental Broadcasting Corporation (IBC13).
Accordingly, defendants are hereby ordered to pay the plaintiff
jointly and severally, as follows:
1) the sum of Five Hundred Thousand (P500,000.00)
Pesos by way of moral damages;

The loose issuance of technical facilities orders practically leased


the networks broadcast facilities to a "friendly client" for free.

2) the sum of One Hundred Thousand (P100,000.00)


Pesos as and by way of exemplary damages;

Balaguer is credited with accelerating the networks rank from


number five in 1988 to number two or three under current
ratings, despite the efforts of some holdouts who tried to derail
his administration. (Emphasis supplied)

3) the sum of Thirty Thousand (P30,000.00) Pesos by


way of nominal damages;
4) the sum of Ten Thousand (P10,000.00) Pesos by
way of temperate or moderate damages; and

In a letter dated July 20, 1992, petitioner urged respondents to


confirm or deny if he was the person alluded to in the news
article as the operations executive of IBC-13 who was dismissed
for selling forged certificates of performance. 6 None of the
respondents replied to the letter.
On September 25, 1992, petitioner filed before the Regional Trial
Court of Quezon City a complaint for damages against Balaguer,7
which was later amended by impleading IBC-13 as additional
defendant.8
Petitioner claimed that respondents caused the publication of the
subject news articles which defamed him by falsely and
maliciously referring to him as the IBC-13 operations executive
who sold forged certificates of performance. 9 He alleged that in
causing these false and malicious publications, respondents
violated Articles 19, 20, 21, and 26 of the Civil Code.10
Balaguer denied that he had anything to do with the
publications.11 However, he argued that the publications are not
actionable because they are true and without malice;12 are of
legitimate public concern and interest because IBC-13 is under
sequestration; that petitioner is a newsworthy and public
figure;13 and that they are privileged communication.14 Balaguer
filed a counterclaim against petitioner for alleged malicious filing
of the civil case.15
IBC-13 also denied participation in the publications. It claimed
that assuming press statements were issued during a press
conference, the same was done solely by Balaguer without its
authority or sanction.16 IBC-13 also filed a counterclaim against
petitioner17 and a cross-claim against Balaguer.18

5) the sum of One Hundred Thousand (P100,000.00)


Pesos as and by way of attorneys fees.
With costs against defendants.
SO ORDERED.23
Respondents moved for reconsideration but it was denied. 24
Hence, they appealed to the Court of Appeals which rendered
the herein assailed Decision on August 10, 2007, disposing thus:
WHEREFORE, premises considered, the appeal is hereby
GRANTED. The October 29, 2003 Decision and the February 2,
2004 Resolution with Clarification issued by the Regional Trial
Court, Br. 89, National Capital Judicial Region, Quezon City, are
hereby REVERSED. The Complaint, the Counterclaim, and the
Cross-claim in Civil Case No. Q-92-13680 are hereby
DISMISSED.
SO ORDERED.25
Petitioners motion for reconsideration was denied. Hence, the
instant petition raising the following issues:26

On August 31, 1993, the Labor Arbiter rendered a Decision 19


finding petitioners dismissal as illegal, which was affirmed by the
National Labor Relations Commission. The Commission,
however, declared respondents to be acting in good faith, hence,
it deleted the award of moral and exemplary damages. On

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

a) Does the failure of the addressee to respond to a


letter containing statements attributing to him
commission of acts constituting actionable wrong,
hence, adverse to his interest, and of such nature as
would call for his reaction, reply, or comment if
untrue, constitute his admission of said statements,
consequently, may be used in evidence against him?

AGUSTIN, E. P. | 38

b) Is the admission by a principal admissible against


its agent? Is the admission by a person jointly
interested with a party admissible against the latter?
c) Does the failure of an individual to disown the
attribution to him by newspaper publications, as the
source of defamatory newspaper reports, when he is
free and very able to do so, constitute admission that
he, indeed, was the source of the said defamatory
news reports?
The petition lacks merit.
As early as 1905, this Court has declared that it is the duty of
the party seeking to enforce a right to prove that their right
actually exists. In varying language, our Rules of Court, in
speaking of burden of proof in civil cases, states that each party
must prove his own affirmative allegations and that the burden
of proof lies on the party who would be defeated if no evidence
were given on either side.27 Thus, in civil cases, the burden of
proof is generally on the plaintiff, with respect to his complaint.28
In proving his claim, petitioner relied on the July 20, 1992 letter,
the newspaper articles, and the alleged admission of
respondents. Based on the above pieces of evidence, the Court
finds that petitioner was unable to discharge his burden of proof.
As such, the Court of Appeals properly dismissed the complaint
for damages.
The July 20, 1992 letter sent by petitioner to respondents reads
as follows:29
20 July 1992
Mr.
Intercontinental
Broadcast
Diliman, Quezon City

Virgilio
Broadcasting
City,
Capitol

Balaguer
Corporation
Hills

Dear Mr. Balaguer:

(signed)
REX G. RICO
cc:
Mr.
Francisco
Board of Administrators, IBC-13

N.

Villanueva

Petitioner argues that by not responding to the above letter


which expressly urged them to reply if the statements therein
contained are untrue, respondents in effect admitted the matters
stated therein, pursuant to the rule on admission by silence in
Sec. 32, Rule 130,30 and the disputable presumption that
acquiescence resulted from a belief that the thing acquiesced in
was conformable to the law or fact.31
Petitioners argument lacks merit. One cannot prove his claim by
placing the burden of proof on the other party. Indeed, "(a) man
cannot make evidence for himself by writing a letter containing
the statements that he wishes to prove. He does not make the
letter evidence by sending it to the party against whom he
wishes to prove the facts [stated therein]. He no more can
impose a duty to answer a charge than he can impose a duty to
pay by sending goods. Therefore a failure to answer such
adverse assertions in the absence of further circumstances
making an answer requisite or natural has no effect as an
admission."32
Moreover, the rule on admission by silence applies to adverse
statements in writing if the party was carrying on a mutual
correspondence with the declarant. However, if there was no
such mutual correspondence, the rule is relaxed on the theory
that while the party would have immediately reacted by a denial
if the statements were orally made in his presence, such prompt
response can generally not be expected if the party still has to
resort to a written reply.33
In the same manner, we also cannot assume an admission by
silence on the part of Balaguer by virtue of his failure to protest
or disclaim the attribution to him by the newspapers that he is
the source of the articles. As explained above, the rule on
admission by silence is relaxed when the statement is not made
orally in ones presence or when one still has to resort to a
written reply, or when there is no mutual correspondence
between the parties.

We write on behalf of our client, Mr. Francisco N. Villanueva.


You have caused to be published in the 18 July 1992 issue of
The Philippine Star and 19 July 1992 issue of Manila Bulletin, a
news item wherein you stated that you dismissed an Operations
Executive because he "sold forged Certificate of Performance".
Our immediate impression is, you are referring to our client,
Francisco N. Villanueva, because he is the only Operations
Executive in IBC, Channel 13 you have illegally and despotically
dismissed.
We urge you, therefore, to inform us, within forty-eight (48)
hours from your receipt of this letter that the Operations
Executive you referred to in your press statement is not our
client, Francisco N. Villanueva. We shall construe your
failure/refusal to reply as your unequivocal admission that you
are, in fact, actually referring to our client, Mr. Francisco N.
Villanueva, as the operations executive who "sold forged
Certificate of Performance". Accordingly, we shall immediately
proceed to take appropriate criminal and civil court actions
against you without further notice.

As for the publications themselves, newspaper articles


purporting to state what the defendant said are inadmissible
against him, since he cannot be held responsible for the writings
of third persons.34 As correctly observed by the Court of Appeals,
"while the subject news items indicated that Balaguer was the
source of the columnists, proving that he truly made such
statements is another matter."35 Petitioner failed to prove that
Balaguer did make such statements.
Notably, petitioner did not implead the editorial staff and the
publisher of the alleged defamatory articles.36 Contrary to
petitioners assertion, he should have at least presented the
authors of the news articles as witnesses to prove his case
against respondents in the absence of an express admission by
the latter that the subject news articles have been caused by
them.
Petitioner also claims that respondents have admitted that they
held a press conference and caused the publication of the news
articles, based on the following testimony of Balaguer:37

Very truly yours,

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

ATTY. JIMENEZ:

AGUSTIN, E. P. | 39

Okay, Let me ask another question. Now Mr. Balaguer


this publication referred to so called anomalies of
1986 to 1989 now how about the termination.
A: 1991.
ATTY. JIMENEZ:
Yes.
WITNESS:
I think the termination of Mr. Villanueva has nothing
to do with that press statement release because the
period that covers that report is from specific date
1986 to 1989. (TSN, 07 November 2000, p. 19)
Admissions, however, should be clear and unambiguous38 which
can hardly be said of Balaguers above testimony. If Balaguer
intended to admit the allegation that he conducted a press
conference and caused the publication of the news articles, he
could have done so. Instead, Balaguer specifically denied these
allegations in paragraphs 4 and 5 of his Answer.39
Petitioner next argues that IBC-13s Cross-Claim against
Balaguer, in that:40
11. The acts complained of by the plaintiff were done solely by
co-defendant Balaguer.
Balaguer resorted to these things in his attempt to stave off his
impending removal from IBC.
is an admission by IBC-13, which is admissible against Balaguer
pursuant to Sec. 29, Rule 13041 as an admission by a co-partner
or an agent.
Petitioner is mistaken. IBC-13s cross-claim against Balaguer
effectively created an adverse interest between them. Hence,
the admission of one defendant is not admissible against his codefendant. Besides, as already discussed, the alleged acts
imputed to Balaguer were never proven to have been
committed, much less maliciously, by Balaguer. Malice or bad
faith implies a conscious and intentional design to do a wrongful
act for a dishonest purpose or moral obliquity. Such must be
substantiated by evidence.42
In sum, we find that petitioner failed to discharge his burden of
proof. No satisfactory evidence was presented to prove by
preponderance of evidence that respondents committed the acts
imputed against them. As such, there is no more need to discuss
whether the assailed statements are defamatory.1avvphi1
WHEREFORE, the petition is DENIED. The August 10, 2007
Decision of the Court of Appeals in CA-G.R. CV No. 81657
reversing the October 29, 2003 Decision and February 2, 2004
Resolution of the Regional Trial Court of Quezon City, Branch 89,
finding petitioner entitled to damages, as well as the October 16,
2007 Resolution denying the motion for reconsideration, are
AFFIRMED.
SO ORDERED.

EVIDENCE RULE 130 SEC. 25 - 35 ADDITIONAL CASES

AGUSTIN, E. P. | 40