EN BANC

[G.R. Nos. 146710-15. April 3, 2001]

JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as

Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND
CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD
DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B.
FRANCISCO, JR., respondents.

[G.R. No. 146738. April 3, 2001]

JOSEPH
E.
ESTRADA, petitioner,
ARROYO, respondent.

vs. GLORIA

MACAPAGAL-

RESOLUTION
PUNO, J.:
For resolution are petitioners Motion for Reconsideration in G.R. Nos. 146710-15
and Omnibus Motion in G.R. No. 146738 of the Courts Decision of March 2, 2001.
In G.R. Nos. 146710-15, petitioner raises the following grounds:
I. IT DISREGARDED THE CLEAR AND EXPLICIT PROVISIONS OF ART. XI,
SECTION 3 (7) OF THE CONSTITUTION AND THE SETTLED
JURISPRUDENCE THEREON.
II. IT HELD THAT PETITIONER CAN BE PROSECUTED NOW, FOR THIS
RULING WOULD VIOLATE THE DOUBLE JEOPARDY CLAUSE OF THE
CONSTITUTION, CONSIDERING THAT PETITIONER WAS ACQUITTED IN
THE IMPEACHMENT PROCEEDINGS.
III. IT HELD THAT PETITIONER IS NO LONGER ENTITLED TO ABSOLUTE
IMMUNITY FROM SUIT.
IV. IT HELD THAT PETITIONERS DUE PROCESS RIGHTS TO A FAIR TRIAL
HAVE NOT BEEN PREJUDICED BY PRE-TRIAL PUBLICITY.
V. IT HELD THAT THERE IS NOT ENOUGH EVIDENCE TO WARRANT THE
COURT TO ENJOIN THE PRELIMINARY INVESTIGATION OF THE
INCUMBENT OMBUDSMAN, PETITIONER HAVING FAILED TO PROVE

THE IMPAIRED CAPACITY OF THE OMBUDSMAN TO RENDER A BIASED

FREE DECISION.
In G.R. No. 146738, petitioner raises and argues the following issues:
1. WHETHER PETITIONER RESIGNED OR SHOULD BE CONSIDERED
RESIGNED AS OF JANUARY 20, 2001;
2. WHETHER THE ANGARA DIARY IS INADMISSIBLE FOR BEING
VIOLATIVE OF THE FOLLOWING RULES ON EVIDENCE: HEARSAY,
BEST EVIDENCE, AUTHENTICATION, ADMISSIONS AND RES INTER
ALIOS ACTA;
3. WHETHER RELIANCE ON NEWSPAPER ACOUNTS IS VIOLATIVE OF
THE HEARSAY RULE;
4. WHETHER CONGRESS POST FACTO CAN DECIDE PETITIONERS
INABILITY TO GOVERN CONSIDERING SECTION 11, ARTICLE VII OF
THE CONSTITUTION; and
5. WHETHER PREJUDICIAL PUBLICITY HAS AFFECTED PETITIONERS
RIGHT TO FAIR TRIAL.
We find the contentions of petitioner bereft of merit.
I
Prejudicial Publicity on the Court

Petitioner insists he is the victim of prejudicial publicity. Among others, he assails

the Decision for adverting to newspaper accounts of the events and occurrences to
reach the conclusion that he has resigned. In our Decision, we used the totality test to
arrive at the conclusion that petitioner has resigned. We referred to and analyzed
events that were prior, contemporaneous and posterior to the oath-taking of respondent
Arroyo as president. All these events are facts which are well-established and
cannot be refuted. Thus, we adverted to prior events that built up the irresistible
pressure for the petitioner to resign. These are: (1) the expose of Governor Luis Chavit
Singson on October 4, 2000; (2) the I accuse speech of then Senator Teofisto Guingona
in the Senate; (3) the joint investigation of the speech of Senator Guingona by the Blue
Ribbon Committee and the Committee on Justice; (4) the investigation of the Singson
expose by the House Committee on Public Order and Security; (5) the move to impeach
the petitioner in the House of Representatives; (6) the Pastoral Letter of Archbishop
Jaime Cardinal Sin demanding petitioners resignation; (7) a similar demand by the
Catholic Bishops conference; (8) the similar demands for petitioners resignation by
former Presidents Corazon C. Aquino and Fidel V. Ramos; (9) the resignation of
respondent Arroyo as Secretary of the DSWD and her call for petitioner to resign; (10)
the resignation of the members of petitioners Council of Senior Economic Advisers and
of Secretary Mar Roxas III from the Department of Trade and Industry; (11) the
defection of then Senate President Franklin Drilon and then Speaker of the House of

Representatives Manuel Villar and forty seven (47) representatives from petitioners
Lapiang Masang Pilipino; (12) the transmission of the Articles of Impeachment by
Speaker Villar to the Senate; (13) the unseating of Senator Drilon as Senate President
and of Representative Villar as Speaker of the House; (14) the impeachment trial of the
petitioner; (15) the testimonies of Clarissa Ocampo and former Finance Secretary
Edgardo Espiritu in the impeachment trial; (16) the 11-10 vote of the senator-judges
denying the prosecutors motion to open the 2nd envelope which allegedly contained
evidence showing that petitioner held a P3.3 billion deposit in a secret bank account
under the name of Jose Velarde; (17) the prosecutors walkout and resignation; (18) the
indefinite postponement of the impeachment proceedings to give a chance to the House
of Representatives to resolve the issue of resignation of their prosecutors; (19) the rally
in the EDSA Shrine and its intensification in various parts of the country; (20) the
withdrawal of support of then Secretary of National Defense Orlando Mercado and the
then Chief of Staff, General Angelo Reyes, together with the chiefs of all the armed
services; (21) the same withdrawal of support made by the then Director General of the
PNP, General Panfilo Lacson, and the major service commanders; (22) the stream of
resignations by Cabinet secretaries, undersecretaries, assistant secretaries and bureau
chiefs; (23) petitioners agreement to hold a snap election and opening of the
controversial second envelope. All these prior events are facts which are within
judicial notice by this Court. There was no need to cite their news accounts. The
reference by the Court to certain newspapers reporting them as they happened
does not make them inadmissible evidence for being hearsay. The news account
only buttressed these facts as facts. For all his loud protestations, petitioner has
not singled out any of these facts as false.
We now come to some events of January 20, 2001 contemporaneous to the oath
taking of respondent Arroyo. We used the Angara Diary to decipher the intent to resign
on the part of the petitioner. Let it be emphasized that it is not unusual for courts to distill
a persons subjective intent from the evidence before them. Everyday, courts ascertain
intent in criminal cases, in civil law cases involving last wills and testaments, in
commercial cases involving contracts and in other similar cases. As will be discussed
below, the use of the Angara Diary is not prohibited by the hearsay rule. Petitioner may
disagree with some of the inferences arrived at by the Court from the facts narrated in
the Diary but that does not make the Diary inadmissible as evidence.
We did not stop with the contemporaneous events but proceeded to examine some
events posterior to the oath-taking of respondent Arroyo. Specifically, we analyzed the
all important press release of the petitioner containing his final statement which was
issued after the oath-taking of respondent Arroyo as president. After analyzing its
content, we ruled that petitioners issuance of the press release and his abandonemnt of
Malacaang Palace confirmed his resignation. [1] These are overt acts which leave no
doubt to the Court that the petitioner has resigned.
In light of this finding that petitioner has resigned before 12 oclock noon of
Janaury 20, 2001, the claim that the office of the President was not vacant when
respondent Arroyo took her oath of office at half past noon of the same day has
no leg to stand on.

We also reject the contention that petitioners resignation was due to duress and
an involuntary resignation is no resignation at all.
x x x [I]t has been said that, in determining whether a given resignation is voluntarily
tendered, the element of voluntariness is vitiated only when the resignation is submitted
under duress brought on by government action. The three-part test for such duress
has been stated as involving the following elements: (1) whether one side involuntarily
accepted the others terms; (2) whether circumstances permitted no other alternative;
and (3) whether such circumstances were the result of coercive acts of the opposite
side. The view has also been expressed that a resignation may be found involuntary if
on the totality of the circumstances it appears that the employers conduct
in requesting resignation effectively deprived the employer of free choice in the
matter. Factors to be considered, under this test, are: (1) whether the employee was
given some alternative to resignation; (2) whether the employee understood the nature
of the choice he or she was given; (3) whether the employewe was given a reasonable
time in which to choose; and (4) whether he or she was permitted to select the effective
date of resignation. In applying this totality of the circumstances test, the assessment
whether real alternatives were offered must be gauged by an objective standard rather
than by the employees purely subjective evaluation; that the employee may perceive
his or her only option to be resignation for example, because of concerns about
his or her reputation is irrelevant. Similarly, the mere fact that the choice is
between comparably unpleasant alternatives for example, resignation or facing
disciplinary charges does not of itself establish that a resignation was induced by
duress or coercion, and was therefore involuntary. This is so even where the only
alternative to resignation is facing possible termination for cause, unless the employer
actually lacked good cause to believe that grounds for termination existed. In this regard
it has also been said that a resignation resulting from a choice between resigning or
facing proceedings for dismissal is not tantamount to discharge by coercion without
procedural view if the employee is given sufficient time and opportunity for deliberation
of the choice posed. Futhermore, a resignation by an officer charged with misconduct is
not given under duress, though the appropriate authority has already determined that
the officers alternative is termination, where such authority has the legal authority to
terminate the officers employment under the particular circumstances, since it is not
duress to threaten to do what one has the legal right to do, or to threaten to take any
measure authorized by law and the circumstances of the case. [2]
In the cases at bar, petitioner had several options available to him other than
resignation. He proposed to the holding of snap elections. He transmitted to the
Congress a written declaration of temporary inability. He could not claim he was forced
to resign because immediately before he left Malacaang, he asked Secretary Angara:
Ed, aalis na ba ako? which implies that he still had a choice of whether or not to leave.
To be sure, pressure was exerted for the petitioner to resign. But it is difficult
to believe that the pressure completely vitiated the voluntariness of the
petitioners resignation. The Malacaang ground was then fully protected by the
Presidential Security Guard armed with tanks and high-powered weapons. The then
Chief of Staff, General Angelo Reyes, and other military officers were in Malacaang to

assure that no harm would befall the petitioner as he left the Palace. Indeed, no harm,
not even a scratch, was suffered by the petitioner, the members of his family and his
Cabinet who stuck it out with him in his last hours. Petitioners entourage was even able
to detour safely to the Municipal Hall of San Juan and bade goodbye to his followers
before finally going to his residence in Polk Street, Greenhills. The only incident before
the petitioner left the Palace was the stone throwing between a small group of pro and
anti Erap rallyists which resulted in minor injuries to a few of them. Certainly, there were
no tanks that rumbled through the Palace, no attack planes that flew over the
presidential residence, no shooting, no large scale violence, except verbal violence, to
justify the conclusion that petitioner was coerced to resign.
II
Evidentiary Issues

Petitioner devotes a large part of his arguments on the alleged improper use by this
Court of the Angara Diary. It is urged that the use of the Angara Diary to determine the
state of mind of the petitioner on the issue of his resignation violates the rule against the
admission of hearsay evidence.
We are unpersuaded. To begin with, the Angara diary is not an out of court
statement. The Angara Diary is part of the pleadings in the cases at bar. Petitioner
cannot complain he was not furnished a copy of the Angara Diary. Nor can he feign
surprise on its use. To be sure, the said Diary was frequently referred to by the parties in
their pleadings.[3] The three parts of the Diary published in the PDI from February 4-6,
2001 were attached as Annexes A-C, respectively, of the Memorandum of private
respondents Romeo T. Capulong, et al., dated February 20, 2001. The second and third
parts of the Diary were earlier also attached as Annexes 12 and 13 of the Comment of
private respondents Capulong, et al., dated February 12, 2001. In fact, petitioner even
cited in his Second Supplemental Reply Memorandum both the second part of the diary,
published on February 5, 2001, [4] and the third part, published on February 6, 2001. [5] It
was also extensively used by Secretary of Justice Hernando Perez in his oral
arguments. Thus, petitioner had all the opportunity to contest the use of the Diary but
unfortunately failed to do so.
Even assuming arguendo that the Angara Diary was an out of court statement, still
its use is not covered bythe hearsay rule. [6] Evidence is called hearsay when its
probative force depends, in whole or in part, on the competency and credibility of some
persons other than the witness by whom it is sought to produce it. [7] There are three
reasons for excluding hearsay evidence: (1) absence of cross examination; (2) absence
of demeanor evidence, and (3) absence of the oath. [8] Not at all hearsay evidence,
however, is inadmissible as evidence. Over the years, a huge body of hearsay evidence
has been admitted by courts due to their relevance, trustworthiness and necessity.[9] The
emergence of these exceptions and their wide spread acceptance is well-explained by
Weinstein, Mansfield, Abrams and Berger as follows:

xxx
On the other hand, we all make decisions in our everyday lives on the basis of other
persons accounts of what happened, and verdicts are usually sustained and affirmed
even if they are based on hearsay erroneously admitted, or admitted because no
objection was made. See Shepp v. Uehlinger, 775 F 2d 452, 454-455 (1st Cir. 1985)
(hearsay evidence alone can support a verdict). Although volumes have been written
suggesting ways to revise the hearsay rule, no one advocates a rule that would bar all
hearsay evidence. Indeed, the decided historical trend has been to exclude
categories of highly probative statements from the definition of hearsay (sections
2 and 3, infra), and to develop more class exceptions to the hearsay rule (sections
4-11, infra). Furthermore, many states have added to their rules the residual, or
catch-all, exceptions first pioneered by the Federal Rules which authorize the
admission of hearsay that does not satisfy a class exception, provided it is
adequately trustworthy and probative (section 12, infra).
Moreover, some commentators believe that the hearsay rule should be abolished
altogether instead of being loosened. See, e.g., Note, The Theoretical Foundation of
the Hearsay Rules, 93 Harv.L.Rev. 1786, 1804-1805, 1815 (1980) (footnotes omitted):
The Federal Rules of Evidence provide that [a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice. Under this structure, exclusion is justified by fears of how the jury will be
influenced by the evidence. However, it is not traditional to think of hearsay as merely a
subdivision of this structure, and the Federal Rules do not conceive of hearsay in that
manner. Prejudice refers to the jurys use of evidence for inferences other than those for
which the evidence is legally relevant; by contrast, the rule against hearsay questions
the jurys ability to evaluate the strength of a legitimate inference to be drawn from the
evidence. For example, were a judge to exclude testimony because a witness was
particularly smooth or convincing, there would be no doubt as to the usurpation of the
jurys function. Thus, unlike prejudices recognized by the evidence rules, such as those
stemming from racial or religious biases or from the introduction of photographs of a
victims final state, the exclusion of hearsay on the basis of misperception strikes at the
root of the jurys function by usurping its power to process quite ordinary evidence, the
type of information routinely encountered by jurors in their everyday lives.
Since virtually all criteria seeking to distinguish between good and bad hearsay are
either incoherent, inconsistent, or indeterminate, the only altenative to a general rule of
admission would be an absolute rule of exclusion, which is surely inferior. More
important, the assumptions necessary to justify a rule against hearsay seem
insupportable and, in any event, are inconsistent with accepted notions of the function
of the jury. Therefore, the hearsay rules should be abolished.
Some support for this view can be found in the limited empirical research now available
which is, however, derived from simulations that suggests that admitting hearsay has
little effect on trial outcomes because jurors discount the value of hearsay

evidence. See Rakos & Landsman, Researching the Hearsay Rule: Emerging Findings,
General Issues, and Future Directions, 76 Minn.L.Rev. 655 (1992); Miene, Park, &
Borgidas, Jury Decision Making and the Evaluation of Hearsay Evidence, 76
Minn.L.Rev. 683 (1992); Kovera, Park, & Penrod, Jurors Perceptions of Eyewitness and
Hearsay Evidence, 76 Minn.L.Rev. 703 (1992); Landsman & Rakos, Research Essay: A
Preliminary Empirical Enquiry Concerning the prohibition of Hearsay Evidence in
American Courts, 15 Law & Psychol. Rev. 65 (1991).
Others, even if they concede that restrictions on hearsay have some utility,
question whether the benefits outweigh the cost:
The cost of maintaining the rule is not just a function of its contribution to justice. It also
includes the time spent on litigating the rule. And of course this is not just a cost
voluntarily borne by the parties, for in our system virtually all the cost of the court
salaries, administrative costs, and capital costs are borne by the public. As expensive
as litigation is for the parties, it is supported by an enormous public subsidy. Each time
a hearsay question is litigated, the public pays. The rule imposes other costs as
well. Enormous time is spent teaching and writing about the hearsay rule, which are
both costly enterprises. In some law schools, students spend over half their time in
evidence classes learning the intricacies of the hearsay rule, and enormous academic
resources are expended on the rule.
Allen, Commentary on Professor Friendmans Article: The Evolution of the Hearsay Rule
to a Rule of Admission, 76 Minn.L.Rev. 797, 800 [1992] (but would abolish rule only in
civil cases). See also Friedman, Toward a Partial Economic, Game-Theoretic Analysis
of Hearsay, 76 Minn. L. Rev. 723 (1992).[10]
A complete analysis of any hearsay problem requires that we further
determine whether the hearsay evidence is one exempted from the rules of
exclusion. A more circumspect examination of our rules of exclusion will show
that they do not cover admissions of a party and the Angara Diary belongs to this
class. Section 26 of Rule 130 provides that the act, declaration or omission of a party
as to a relevant fact may be given in evidence against him. [11] It has long been settled
that these admissions are admissible even if they are hearsay. Retired Justice
Oscar Herrera of the Court of Appeals cites the various authorities who explain
why admissions are not covered by the hearsay rule:[12]
Wigmore, after pointing out that the partys declaration has generally the probative
value of any other persons asssertion, argued that it had a special value when offered
against the party. In that circumstance, the admission discredits the partys statement
with the present claim asserted in pleadings and testimony, much like a witness
impeached by contradictory statements. Moreover, he continued,admissions pass the
gauntlet of the hearsay rule, which requires that extrajudicial assertions be excluded if
there was no opportunity for the opponent to cross-examine because it is the opponents
own declaration, and he does not need to cross examine himself. Wigmore then
added that the Hearsay Rule is satisfied since the party now as opponent has the full

opportunity to put himself on the stand and explain his former assertion. (Wigmore on
evidence, Sec. 1048 (Chadbourn Rev. 1972), cited in Sec. 154, McCormick)
According to Morgan: The admissibility of an admission made by the party himself rests
not upon any notion that the circumstances in which it was made furnish the trier means
of evaluating it fairly, but upon the adversary theory of litigation. A party can hardly
object that he had no opportunity to cross-examine himself or that he is unworthy
of credence save when speaking under sanction of an oath.
A mans acts, conduct, and declaration, wherever made, if voluntary, are admissible
against him, for the reason that it is fair to presume that they correspond with the truth,
and it is his fault if they do not.(U.S. vs. Ching Po, 23 Phil. 578, 583).
The Angara Diary contains direct statements of petitioner which can be categorized
as admissions of a party: his proposal for a snap presidential election where he would
not be a candidate; his statement that he only wanted the five-day period promised by
Chief of Staff Angelo Reyes; his statements that he would leave by Monday if the
second envelope would be opened by Monday and Pagod na pagod na ako. Ayoko na,
masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very
tired. I dont want any more of this its too painful. Im tired of the red tape, the
bureaucracy, the intrigue). I just want to clear my name, then I will go. We noted that
days before, petitioner had repeatedly declared that he would not resign despite the
growing clamor for his resignation. The reason for the meltdown is obvious - - - his will
not to resign has wilted.
It is, however, argued that the Angara Diary is not the diary of the petitioner,
hence, non-binding on him. The argument overlooks the doctrine of adoptive
admission. An adoptive admission is a partys reaction to a statement or action by
another person when it is reasonable to treat the partys reaction as an admission of
something stated or implied by the other person.[13] Jones explains that the basis for
admissibility of admissions made vicariously is that arising from the ratification or
adoption by the party of the statements which the other person had made. [14] To use the
blunt language of Mueller and Kirkpatrick, this process of attribution is not mumbo
jumbo but common sense.[15] In the Angara Diary, the options of the petitioner started
to dwindle when the armed forces withdrew its support from him as President and
commander-in-chief. Thus, Executive Secretary Angara had to ask Senate President
Pimentel to advise petitioner to consider the option of dignified exit or
resignation. Petitioner did not object to the suggested option but simply said he could
never leave the country. Petitioners silence on this and other related suggestions can be
taken as an admission by him.[16]
Petitioner further contends that the use of the Angara diary against him violated the
rule on res inter alios acta. The rule is expressed in section 28 of Rule 130 of the
Rules of Court, viz: The rights of a party cannot be prejudiced by an act, declaration, or
omission of another, except as hereinafter provided.

Again, petitioner errs in his contention. The res inter alios acta rule has several
exceptions. One of them is provided in section 29 of Rule 130 with respect
to admissions by a co-partner or agent.
Executive Secretary Angara as such was an alter ego of the petitioner. He was the
Little President. Indeed, he was authorized by the petitioner to act for him in the
critical hours and days before he abandoned Malacaang Palace. Thus, according to
the Angara Diary, the petitioner told Secretary Angara: Mula umpisa pa lang ng
kampanya, Ed, ikaw na lang pinakikinggan ko. At hanggang sa huli, ikaw pa rin. (Since
the start of the campaign, Ed, you have been the only one Ive listened to. And now at
the end, you still are.)[17] This statement of full trust was made by the petitioner after
Secretary Angara briefed him about the progress of the first negotiation. True to
this trust, the petitioner had to ask Secretary Angara if he would already leave
Malacaang after taking their final lunch on January 20, 2001 at about 1:00
p.m. TheAngara Diary quotes the petitioner as saying to Secretary Angara: ed,
kailangan ko na bang umalis? (Do I have to leave now?) [18] Secretary Angara told him to
go and he did. Petitioner cannot deny that Secretary Angara headed his team of
negotiators that met with the team of the respondent Arroyo to discuss the peaceful and
orderly transfer of power after his relinquishment of the powers of the
presidency.The Diary shows that petitioner was always briefed by Secretary Angara on
the progress of their negotiations. Secretary Angara acted for and in behalf of the
petitioner in the crucial days before respondent Arroyo took her oath as
President. Consequently, petitioner is bound by the acts and declarations of
Secretary Angara.
Under our rules of evidence, admissions of an agent (Secretary Angara) are
binding on the principal (petitioner). [19] Jones very well explains the reasons for the
rule, viz: What is done, by agent, is done by the principal through him, as through a
mere instrument. So, whatever is said by an agent, either in making a contract for his
principal, or at the time and accompanying the performance of any act within the scope
of his authority, having relation to, and connected with, and in the course of the
particular contract or transaction in which he is then engaged, or in the language of the
old writers, dum fervet opus is, in legal effect, said by his principal and admissible in
evidence against such principal.[20]
Moreover, the ban on hearsay evidence does not cover independently relevant
statements. These are statements which are relevant independently of whether they
are true or not. They belong totwo (2) classes: (1) those statements which are the
very facts in issue, and (2) those statements which are circumstantial evidence of the
facts in issue. The second class includes the following:[21]
a. Statement of a person showing his state of mind, that is, his mental
condition, knowledge, belief, intention, ill will and other emotions;
b. Statements of a person which show his physical condition, as illness and the
like;

c. Statements of a person from which an inference may be made as to

the state of mind of another, that is, the knowledge, belief, motive, good or
bad faith, etc. of the latter;
d. Statements which may identify the date, place and person in question; and
e. Statements showing the lack of credibility of a witness.
Again, Jones tells us why these independently relevant statements are not
covered by the prohibition against hearsay evidence: [22]
1088. Mental State or Condition Proof of Knowledge.- There are a number of comon
issues, forming a general class, in proof of which hearsay is so obviously necessary that
it is not customary to refer to its admissibility as by virtue of any exception to the general
exclusionary rule. Admissibility, in such cases, is as of course. For example, where any
mental state or condition is in issue, such as motive, malice, knowledge, intent,
assent or dissent, unless direct testimony of the particular person is to be taken as
conclusive of his state of mind, the only method of proof available is testimony of
others to the acts or statements of such person. Where his acts or statements are
against his interest, they are plainly admissible within the rules hereinabove announced
as to admissions against interest. And even where not against interest, if they are so
closely connected with the event or transaction in issue as to constitute one of the very
facts in controversy, they become admissible of necessity.
As aforediscussed, The Angara Diary contains statements of the petitioner which
reflect his state of mind and are circumstantial evidence of his intent to resign. It also
contains statements of Secretary Angara from which we can reasonably deduce
petitioners intent to resign. They are admissible and they are not covered by the rule on
hearsay. This has long been a quiet area of our law on evidence and petitioners attempt
to foment a belated tempest cannot receive our imprimatur.
Petitioner also contends that the rules on authentication of private writings
and best evidence were violated in our Decision, viz:
The use of the Angara diary palpably breached several hornbook rules of evidence,
such as the rule on authentication of private writings
xxx
A. Rule on Proof of Private Writings Violated
The rule governing private documents as evidence was violated. The law provides that
before any private writing offered as authentic is received in evidence, its due execution
and authenticity must be proved either: a) by anyone who saw the document executed
or written, or b) by evidence of the genuineness of the signature or handwriting of the
maker.
xxx

B. Best Evidence Rule Infringed

Clearly, the newspaper reproduction is not the best evidence of the Angara diary. It is
secondary evidence, of dubious authenticity. It was however used by this Honorable
Court without proof of the unavailability of the original or duplicate original of the
diary. The Best Evidence Rule should have been applied since the contents of the diary
are the subject of inquiry.
The rule is that, except in four (4) specific instances, [w]hen the subject of inquiry is the
contents of a document, no evidence shall be admissible other than the original
document itself.[23]
Petitioners contention is without merit. In regard to the Best Evidence rule, the
Rules of Court provides in sections 2 to 4 of Rule 130, as follows:
Sec. 2. Documentary evidence. Documents as evidence consist of writings or any
material containing letters, words, numbers, figures or other modes of written
expressions offered as proof of their contents.
Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is
the contents of a document, no evidence shall be admissible other than the original
document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom
the evidence is offered, and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot
be examined in court without great loss of time and the fact sought to be established
from them is only the general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is recorded in
a public office.
Sec. 4. Original of document. (a) The original of a document is one the contents of
which are the subject of inquiry.
(b) When a document is in two or more copies executed at or about the same time, with
identical contents, all such copies are equally regarded as originals.
(c) When an entry is repeated in the regular course of business, one being copied from
another at or near the time of the transaction, all the entries are likewise equally
regarded as originals.

It is true that the Court relied not upon the original but only copy of the Angara
Diary as published in the Philippine Daily Inquirer on February 4-6, 2001. In doing
so, the Court, did not, however, violate the best evidence rule. Wigmore, in his
book on evidence, states that:
Production of the original may be dispensed with, in the trial courts discretion, whenever
in the case in hand the opponent does not bona fide dispute the contents of the
document and no other useful purpose will be served by requiring production. [24]
xxx
In several Canadian provinces, the principle of unavailability has been abandoned, for
certain documents in which ordinarily no real dispute arised. This measure is a sensible
and progressive one and deserves universal adoption (post, sec. 1233). Its essential
feature is that a copy may be used unconditionally, if the opponent has been given an
opportunity to inspect it. (empahsis supplied)
Franciscos opinion is of the same tenor, viz:
Generally speaking, an objection by the party against whom secondary evidence is
sought to be introduced is essential to bring the best evidence rule into application; and
frequently, where secondary evidence has been admitted, the rule of exclusion might
have successfully been invoked if proper and timely objection had been taken. No
general rule as to the form or mode of objecting to the admission of secondary evidence
is set forth. Suffice it to say here that the objection should be made in proper season
that is, whenever it appears that there is better evidence than that which is
offered and before the secondary evidence has been admitted. The objection itself
should be sufficiently definite to present a tangible question for the courts consideration.
[25]

He adds:
Secondary evidence of the content of the writing will be received in evidence if no
objection is made to its reception.[26]
In regard to the authentication of private writings, the Rules of Court provides in
section 20 of Rule 132, viz:
Sec. 20. Proof of private document. Before any private document offered as authentic is
received in evidence, its due execution and authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which it is claimed to be.

On the rule of authentication of private writings, Francisco states that:

A proper foundation must be laid for the admission of documentary evidence; that is, the
identity and authenticity of the document must be reasonably established as a prerequisite to its admission. (Rouw v. Arts, 174 Ark. 79, 294 S.W. 993, 52 A.L.R. 1263, and
others) However, a party who does not deny the genuineness of a proffered
instrument may not object that it was not properly identified before it was
admitted in evidence. (Strand v. Halverson, 220 Iowa 1276, 264 N.W. 266, 103 A.L.R.
835).[27]
Petitioner cites the case of State prosecutors v. Muro,[28] which frowned on
reliance by courts on newspaper accounts. In that case, Judge Muro was dismissed
from the service for relying on a newspaper account in dismissing eleven (11) cases
against Mrs. Imelda Romualdez Marcos. There is a significant difference, however,
between the Muro case and the cases at bar. In the Muro case, Judge Muro dismissed
the cases against Mrs. Marcos on the basis of a newspaper account without affording
the prosecution the basic opportunity to be heard on the matter by way of a written
comment or on oral argument. . .(this is) not only a blatant denial of elementary due
process to the Government but is palpably indicative of bad faith and partiality. In the
instant cases, however, the petitioner had an opportunity to object to the
admissibility of the Angara Diary when he filed his Memorandum dated February 20,
2001, Reply Memorandum dated February 22, 2001, Supplemental Memorandum dated
February 23, 2001, and Second Supplemental memorandum dated February 24,
2001. He was therefore not denied due process. In the words of Wigmore, supra,
petitioner had been given an opportunity to inspect the Angara Diary but did not object
to its admissibility. It is already too late in the day to raise his objections in an Omnibus
Motion, after the Angara Diary has been used as evidence and a decision rendered
partly on the basis thereof.
III
Temporary Inability

Petitioner argues that the Court misinterpreted the meaning of section 11, Article
VII, of the Constitution in that congress can only decide the issue of inability when there
is a variance of opinion between a majority of the Cabinet and the President. The
situation presents itself when majority of the Cabinet determines that the President is
unable to govern; later, the President informs Congress that his inability has ceased but
is contradicted by a majority of the members of the Cabinet. It is also urged that the
presidents judgment that he is unable to govern temporarily which is thereafter
communicated to the Speaker of the House and the President of the Senate is the
political question which this Court cannot review.
We cannot sustain the petitioner. Lest petitioner forgets, he himself made the
submission in G.R. No. 146738 that Congress has the ultimate authority under the
Constitution to determine whether the President is incapable of performing his

functions in the manner provided for in section 11 of Article VII.[29] We sustained

this submission and held that by its many acts, Congress has already determined and
dismissed the claim of alleged temporary inability to govern proffered by petitioner. If
petitioner now feels aggrieved by the manner Congress exercised its power, it is
incumbent upon him to seek redress from Congress itself. The power is conceded by
the petitioner to be with Congress and its alleged erroneous exercise cannot be
corrected by this Court. The recognition of respondent Arroyo as our de
jure president made by Congress is unquestionably a political judgment. It is
significant that House Resolution No. 176 cited as the bases of its judgment such
factors as thepeoples loss of confidence on the ability of former President Joseph
Ejercito Estrada to effectively govern and the members of the international
community had extended their recognition of Her Excellency, Gloria Macapagal-Arroyo
as President of the Republic of the Philippines and it has a constitutional duty of fealty
to the supreme will of the people x x x. This political judgment may be right or
wrong but Congress is answerable only to the people for its judgment. Its wisdom
is fit to be debated before the tribunal of the people and not before a court of
justice. Needles to state, the doctrine ofseparation of power constitutes
an inseparable bar against this courts interposition of its power of judicial review to
review the judgment of Congress rejecting petitioners claim that he is still the
President,albeit on leave and that respondent Arroyo is merely an acting President.
Petitioner attempts to extricate himself from his submission that Congress has the
ultimate authority to determine his inability to govern, and whose determination is a
political question by now arguing that whether one is a de jure or de facto President
is a judicial question. Petitioners change of theory, ill disguised as it is, does not at all
impress. The cases at bar do not present the general issue of whether the respondent
Arroyo is the de jure or a de facto President. Specific issues were raised to the Court
for resolution and we ruled on an issue by issue basis. On the issue of resignation
under section 8, Article VII of the Constitution, we held that the issue is legal and ruled
that petitioner has resigned from office before respondent Arroyo took her oath as
President. On the issue of inability to govern under section 11, Article VII of the
Constitution, we held that the Congress has the ultimate authority to determine the
question as opined by the petitioner himself and that the determination of Congress is a
political judgment which this Court cannot review. Petitioner cannot blur these
specific rulings by the generalization that whether one is a de jure or de facto
President is a judicial question.
Petitioner now appears to fault Congress for its various acts expressed thru
resolutions which brushed off his temporary inability to govern and President-onleave argument. He asserts that these acts of Congress should not be accorded any
legal significance because: (1) they are post facto and (2) a declaration of presidential
incapacity cannot be implied.
We disagree. There is nothing in section 11 of Article VII of the Constitution which
states that the declaration by Congress of the Presidents inability must always be a
priori or before the Vice-President assumes the presidency. In the cases at bar, special
consideration should be given to the fact that the events which led to the resignation of
the petitioner happened at express speed and culminated on a Saturday. Congress

was then not in session and had no reasonable opportunity to act a priori on
petitioners letter claiming inability to govern. To be sure, however, the petitioner cannot
strictly maintain that the President of the Senate, the Honorable Aquilino Pimentel, Jr.
and the then Speaker of the House of Representatives, the Honorable Arnulfo P.
Fuentebella, recognized respondent Arroyo as the constitutional successor to the
presidency post facto. Petitioner himself states that his letter alleging his inability to
govern was received by the Office of the Speaker on January 20, 2001 at 8:30 A.M. and
the Office of the Senate at 9 P.M. of the same day. [30] Respondent took her oath of office
a few minutes past 12 oclock in the afternoon of January 20. Before the oath-taking,
Senate President Pimentel, Jr. and Speaker Fuentebella had prepared a Joint
Statement which states:[31]
Joint Statement of Support
and Recognition from the
Senate President and the Speaker
Of the House of Representatives
We, the elected leaders of the Senate and the House of Representatives, are called
upon to address the constitutional crisis affecting the authority of the President to
effectively govern our distressed nation.We understand that the Supreme Court at that
time is issuing an en banc resolution recognizing this political reality. While we may
differ on the means to effect a change of leadership, we however, cannot be indifferent
and must act resolutely. Thus, in line with our sworn duty to represent our people
and in pursuit of our goals for peace and prosperity to all, we, the Senate
President and the Speaker of the House of Representatives, hereby declare our
support and recognition to the constitutional successor to the Presidency. We
similarly call on all sectors to close ranks despite our political differences. May God
bless our nation in this period of new beginnings.
Mabuhay and Pilipinas at ang mamamayang Pilipino.
(Sgd.) AQUILINO PIMENTEL, JR.
Senate President
(Sgd.) ARNULFO P. FUENTEBELLA
Speaker of the House of Representatives
This a priori recognition by the President of the Senate and the Speaker of the House
of Representatives of respondent Arroyo as the constitutional successor to the
presidency was followed post facto by various resolutions of the Senate and the
House, in effect, confirming this recognition. Thus, Resolution No. 176 expressed x x x
the support of the House of Representatives to the assumption into office by VicePresident Gloria Macapagal-Arroyo as President of the Republic of the Philippines,
extending its congratulations and expressing its support for her administration as a
partner in the attainment of the nations goal under the Constitution. [32] Resolution No. 82
of the Senate and Resolution No. 178 of the House of Representatives both confirmed
the nomination of then Senator Teofisto Guingona, Jr., as Vice-President. [33] It also
passed Resolution No. 83 declaring the impeachment court functus officio.[34] Both

Houses sent bills to respondent Arroyo to be signed by her into law as President of the
Philippines.[35] These acts of Congress, a priori and post facto, cannot be
dismissed as merely implied recognitions of respondent Arroyo, as the President
of the Republic. Petitioners insistence that respondent Arroyo is just a de
facto President because said acts of Congress x x x are mere circumstances of
acquiescence calculated to induce people to submit to respondents exercise of the
powers of the presidency[36] is a guesswork far divorced from reality to deserve further
discussion.
Similarly way off the mark is petitioners point that while the Constitution has made
Congress the national board of canvassers for presidential and vice-presidential
elections, this Honorable Court nonetheless remains the sole judge in presidential and
vice presidential contests.[37] He thus postulates that such constitutional
provision[38] is indicative of the desire of the sovereign people to keep out of the hands
of Congress questions as to the legality of a persons claim to the presidential office.
[39]
Suffice to state that the inference is illogical. Indeed, there is no room to resort to
inference. The Constitution clearly sets out the structure on how vacancies and election
contest in the office of the President shall be decided. Thus, section 7 of Article
VII covers the instance when (a) the President-elect fails to qualify, (b) if a President
shall not have been chosen and (c) if at the beginning of the term of the President, the
President-elect shall have died or shall have become permanently disabled. Section 8
of Article VII covers the situation of the death, permanent disability, removal from office
or resignation of the President. Section 11 of Article VII covers the case where the
President transmits to the President of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to discharge the powers and
duties of his office. In each case, the Constitution specifies the body that will
resolve the issues that may arise from the contingency. In case of election contest,
section 4, Article VII provides that the contests shall be resolved by this Court sitting en
banc. In case of resignation of the President, it is not disputed that this Court has
jurisdiction to decide the issue. In case of inability to govern, section 11 of Article VII
gives the Congress the power to adjudge the issue and petitioner himself submitted this
thesis which was shared by this Court. In light of these clear provisions of the
Constitution, it is inappropriate, to say the least, for petitioner to make inferences that
simply distort their meanings.
IV

Impeachment and Absolute Immunity

Petitioner contends that this Court disregarded section 3 (7) of Article XI of the
Constitution which provides:
(7) Judgment in cases of impeachment shall not extend further than removal from office
and disqualification to hold any office under the Republic of the Philippines, but the

party convicted should nevertheless be liable and subject to prosecution, trial and
punishment according to law.
Petitioner reiterates the argument that he must be first convicted in the impeachment
proceedings before he could be criminally prosecuted. A plain reading of the provision
will not yield this conclusion. The provision conveys two uncomplicated ideas: first, it
tells us that judgment in impeachment cases has a limited reach. . .i.e., it cannot
extend further than removal from office and disqualification to hold any office under the
Republic of the Philippines, and second, it tells us the consequence of the limited
reach of a judgment in impeachment proceedings considering its nature, i.e., that the
party convicted shall still be liable and subject to prosecution, trial and punishment
according to law. No amount of manipulation will justify petitioners non
sequitur submission that the provision requires that his conviction in the impeachment
proceedings is a condition sine qua non to his prosecution, trial and punishment for the
offenses he is now facing before the respondent Ombudsman.
Petitioner contends that the private and public prosecutors walk out from the
impeachment proceedings should be considered failure to prosecute on the part of the
public and private prosecutors, and the termination of the case by the Senate
is equivalent to acquittal.[40] He explains failure to prosecute as the failure of the
prosecution to prove the case, hence dismissal on such grounds is a dismissal on the
merits.[41] He then concludes that dismissal of a case for failure to prosecute amounts
to an acquittal for purposes of applying the rule against double jeopardy.[42]
Without ruling on the nature of impeachment proceedings, we reject
petitioners submission.
The records will show that the prosecutors walked out in the January 16, 2001
hearing of the impeachment cases when by a vote of 11-10, the Senator-judges refused
to open the second envelope allegedly containing the P3.3 billion deposit of the
petitioner in a secret bank account under the name Jose Velarde. The next
day, January 17, the public prosecutors submitted a letter to the Speaker of the House
tendering their resignation. They also filed their Manifestation of Withdrawal of
Appearance with the impeachment tribunal. Senator Raul Roco immediately moved for
the indefinite suspensionof the impeachment proceedings until the House of
Representatives shall have resolved the resignation of the public
prosecutors. The Roco motion was then granted by Chief Justice Davide,
Jr. Beforethe House could resolve the issue of resignation of its prosecutors or
on January 20, 2001, petitioner relinquished the presidency and respondent Arroyo
took her oath as President of the Republic. Thus, onFebruary 7, 2001, the Senate
passed Resolution No. 83 declaring that the impeachment court is functus officio.
Prescinding from these facts, petitioner cannot invoke double
jeopardy. Double jeopardy attaches only: (1) upon a valid complaint; (2) before a
competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5)
when the defendant was acquitted or convicted or the case was dismissed or otherwise
terminated without the express consent of the accused. [43] Assuming arguendo that the
first four requisites of double jeopardy were complied with, petitioner failed to satisfy the

fifth requisite for he was not acquitted nor was the impeachment proceeding
dismissed without his express consent. Petitioners claim of double jeopardy cannot
be predicated on prior conviction for he was not convicted by the impeachment court. At
best, his claim of previous acquittal may be scrutinized in light of a violation of his right
to speedy trial, which amounts to a failure to prosecute. As Bernas points out, a failure
to prosecute, which is what happens when the accused is not given a speedy trial,
means failure of the prosecution to prove the case. Hence, dismissal on such grounds is
a dismissal on the merits.[44]
This Court held in Esmea v. Pogoy[45], viz:
If the defendant wants to exercise his constitutional right to a speedy trial, he should
ask, not for the dismissal, but for the trial of the case. After the prosecutions motion for
postponement of the trial is denied and upon order of the court the fiscal does not or
cannot produce his evidence and, consequently fails to prove the defendants guilt, the
court upon defendants motion shall dismiss the case, such dismissall amounting to an
acquittal of the defendant.
In a more recent case, this Court held:
It is true that in an unbroken line of cases, we have held that the dismissal of cases on
the ground of failure to prosecute is equivalent to an acquittal that would bar further
prosecution of the accused for the same offense. It must be stressed, however, that
these dismissals were predicated on the clear right of the accused to speedy
trial. These cases are not applicable to the petition at bench considering that the right of
the private respondents to speedy trial has not been violated by the State. For this
reason, private respondents cannot invoke their right against double jeopardy.[46]
Petitioner did not move for the dismissal of the impeachment case against
him. Even assuming arguendo that there was a move for its dismissal, not every
invocation of an accuseds right to speedy trial is meritorious. While the Court accords
due importance to an accuseds right to a speedy trial and adheres to a policy of speedy
administration of justice, this right cannot be invoked loosely. Unjustified postponements
which prolong the trial for an unreasonable length of time are what offend the right of
the accused to speedy trial. [47] The following provisions of the Revised Rules of Criminal
Procedure are apropos:
Rule 115, Section 1(h). Rights of accused at the trial. -- In all criminal prosecutions, the
accused shall be entitled to the following rights:
(h) To have speedy, impartial and public trial.
Rule 119, Section 2. Continuous trial until terminated; postponements.-- Trial once
commenced shall continue from day to day as far as practicable until terminated. It may
be postponed for a reasonable length of time for good cause.

The court shall, after consultation with the prosecutor and defense counsel, set the case
for continuous trial on a weekly or other short-term trial calendar at the earliest possible
time so as to ensure speedy trial. In no case shall the entire trial period exceed one
hundred eighty (180) days from the first day of trial, except as otherwise authorized by
the Supreme Court.
Petitioner therefore failed to show that the postponement of the impeachment
proceedings was unjustified, much less that it was for an unreasonable length of
time. Recalling the facts, on January 17, 2001, the impeachment proceeding was
suspended until the House of Representatives shall have resolved the issue on the
resignation of the public prosecutors. This was justified and understandable for an
impeachment proceeding without a panel of prosecutors is a mockery of the
impeachment process. However, three (3) days from the suspension or January 20,
2001, petitioners resignation supervened. With the sudden turn of events, the
impeachment court became functus officio and the proceedings were therefore
terminated. By no stretch of the imagination can the four-day period from the time the
impeachment proceeding was suspended to the day petitioner resigned, constitute an
unreasonable period of delay violative of the right of the accused to speedy trial.
Nor can the claim of double jeopardy be grounded on the dismissal or
termination of the case without the express consent of the accused. We reiterate
that the impeachment proceeding was closed only after the petitioner had resigned from
the presidency, thereby rendering the impeachment court functus officio. By resigning
from the presidency, petitioner more than consented to the termination of the
impeachmment case against him, for he brought about the termination of the
impeachment proceedings. We have consistently ruled that when the dismissal or
termination of the case is made at the instance of the accused, there is no double
jeopardy.[48]
Petitioner stubbornly clings to the contention that he is entitled to absolute
immunity from suit. His arguments are merely recycled and we need not prolong the
longevity of the debate on the subject. In our Decision, we exhaustively traced the origin
of executive immunity in our jurisdiction and its bends and turns up to the present
time. We held that given the intent of the 1987 Constitution to breathe life to the policy
that a public office is a public trust, the petitioner, as a non-sitting President, cannot
claim executive immunity for his alleged criminal acts committed while a sitting
President. Petitioners rehashed arguments including their thinly disguised new spins
are based on the rejected contention that he is still President, albeit, a President on
leave. His stance that his immunity covers his entire term of office or until June 30, 2004
disregards the reality that he has relinquished the presidency and there is now a
new de jure President.
Petitioner goes a step further and avers that even a non-sitting President enjoys
immunity from suit during his term of office. He buttresses his position with the
deliberations of the Constitutional Commission, viz:
Mr. Suarez. Thank you.

The last question is with reference to the Committees omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the
Committee did very well in striking out this second sentence, at the very least, of the
original provision on immunity from suit under the 1973 Constitution. But would the
Committee members not agree to a restoration of at least the first sentence that the
President shall be immune from suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be spending all his time facing litigations,
as the President-in-exile in Hawaii is now facing litigations almost daily?
Fr. Bernas: The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.
Mr. Suarez: So there is no need to express it here.
Fr. Bernas: There is no need. It was that way before. The only innovation made by
the 1973 Constitution was to make that explicit and to add other things.
Mr. Suarez; On the understanding, I will not press for any more query, madam
President.
I thank the Commissioner for the clarification. [49]
Petitioner,
however,
fails
to
distinguish
between
term
and
tenure. The term means the time during which the officer may claim to hold the office
as of right, and fixes the interval after which the several incumbents shall succeed one
another. The tenure represents the term during which the incumbent actually holds
office. The tenure may be shorter than the term for reasons within or beyond the power
of the incumbent.[50] From the deliberations, the intent of the framers is clear that
the immunity of the president from suit is concurrent only with his tenure and not
his term.
Indeed, petitioners stubborn stance cannot but bolster the belief that the cases at
bar were filed not really for petitioner to reclaim the presidency but just to take
advantage of the immunity attached to the presidency and thus, derail the investigation
of the criminal cases pending against him in the Office of the Ombudsman.
V

Prejudicial Publicity on the Ombudsman

Petitioner hangs tough on his submission that his due process rights to a fair trial
have been prejudiced by pre-trial publicity. In our Decision, we held that there is not
enough evidence to sustain petitioners claim of prejudicial publicity. Unconvinced,
petitioner alleges that the vivid narration of events in our Decision itself proves the
pervasiveness of the prejudicial publicity. He then posits the thesis that doubtless, the
national fixation with the probable guilt of petitioner fueled by the hate campaign

launched by some high circulation newspaper and by the bully pulpit of priests and
bishops left indelible impression on all sectors of the citizenry and all regions, so harsh
and so pervasive that the prosecution and the judiciary can no longer assure petitioner
a sporting chance.[51] To be sure, petitioner engages inexageration when he alleges
that all sectors of the citizenry and all regions have been irrevocably influenced by this
barrage of prejudicial publicity. This exaggeration collides with petitioners claim that
he still enjoys the support of the majority of our people, especially the masses.
Petitioner pleads that we apply the doctrine of res ipsa loquitur (the thing or the
transaction speaks for itself) to support his argument. Under the res ipsa loquitur rule
in its broad sense, the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of negligence, or make
out a plaintiffs prima facie case, and present a question of fact for defendant to meet
with an explanation.[52] It is not a rule of substantive law but more a procedural rule. Its
mere invocation does not exempt the plaintiff with the requirement of proof to prove
negligence. It merely allows the plaintiff to present along with the proof of the accident,
enough of the attending circumstances to invoke the doctrine, creating an inference or
presumption of negligence and to thereby place on the defendant the burden of going
forward with the proof.[53]
We hold that it is inappropriate to apply the rule on res ipsa loquitur, a rule
usually applied only in tort cases, to the cases at bar. Indeed, there is no court in the
whole world that has applied the res ipsa loquitur rule to resolve the issue of
prejudicial publicity. We again stress that the issue before us is whether the alleged
pervasive publicity of the cases against the petitioner has prejudiced the minds of the
members of the panel of investigators. We reiterate the test we laid down in People v.
Teehankee,[54] to resolve this issue, viz:
We cannot sustain appellants claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar
pervasive publicity, just like all high profile and high stake criminal trials. Then and now,
we rule that the right of an accused to a fair trial is not incompatible to a free press. To
be sure, responsible reporting enhances an accuseds right to a fair trial for, as well
pointed out , a responsible press has always been regarded as the handmaiden of
effective judicial administration, especially in the criminal field x x x. The press does not
simply publish information about trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes to extensive public scrutiny
and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The
mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage
does not by itself prove that the publicity so permeated the mind of the trial judge and
impaired his impartiality. For one, it is impossible to seal the minds of members of the
bench from pre-trial and other off-court publicity of sensational criminal cases. The state
of the art of our communication system brings news as hey happen straight to our
breakfast tables and right to our bedrooms. These news form part of our everyday menu
of the facts and fictions of life. For another, our idea of a fair and impartial judge is not

that of a hermit who is out of touch with the world. We have not installed the jury system
whose members are overly protected from publicity lest they lost their impartiality. x x
x x x x x x x. Our judges are learned in the law and trained to disregard off-court
evidence and on-camera performances of parties to a litigation. Their mere exposure to
publications and publicity stunts does not per se fatally infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial judge
due to the barrage of publicity that characterized the investigation and trial of the
case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of
prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding
of prejudicial publicity, there must be allegation and proof that the judges have been
unduly influenced, not simply that they might be, by the barrage of publicity. In the case
at bar, the records do not show that the trial judge developed actual bias against
appellant as a consequence of the extensive media coverage of the pre-trial and trial of
his case. The totality of circumstances of the case does not prove that the trial judge
acquired a fixed opinion as a result of prejudicial publicity which is incapable of change
even by evidence presented during the trial. Appellant has the burden to prove this
actual bias and he has not discharged the burden.
Petitioner keeps on pounding on the adverse publicity against him but fails to
prove how the impartiality of the panel of investigators from the Office of the
Ombudsman has been infected by it. As we held before and we hold it
again, petitioner has completely failed to adduce any proof of actual
prejudice developed by the members of the Panel of Investigators. This fact must be
established by clear and convincing evidence and cannot be left to loose surmises and
conjectures. In fact, petitioner did not even identify the members of the Panel of
Investigators. We cannot replace this test of actual prejudice with the rule of res ipsa
loquitur as suggested by the petitioner. The latter rule assumes that an injury (i.e.,
prejudicial publicity) has been suffered and then shifts the burden to the panel of
investigators to prove that the impartiality of its members has been affected by said
publicity. Such a rule will overturn our case law that pervasive publicity is not per
se prejudicial to the right of an accused to fair trial. The cases are not wanting where an
accused has been acquitted despite pervasive publicity.[55] For this reason, we continue
to hold that it is not enough for petitioner to conjure possibility of prejudicebut
must prove actual prejudice on the part of his investigators for the Court to sustain his
plea. It is plain that petitioner has failed to do so.
Petitioner agains suggests that the Court should order a 2-month cooling
off period to allow passions to subside and hopefully the alleged prejudicial publicity
against him would die down. We regret not to acquiesce to the proposal. There is no
assurance that the so called 2-month cooling off period will achieve its purpose. The
investigation of the petitioner is a natural media event. It is the first time in our history
that a President will be investigated by the Office of the Ombudsman for alleged
commission of heinous crimes while a sitting President. His investigation will even be
monitored by the foreign press all over the world in view of its legal and historic
significance. In other words, petitioner cannot avoid the kleiglight of publicity. But what
is important for the petitioner is that his constitutional rights are not violated in

the process of investigation. For this reason, we have warned the respondent
Ombudsman in our Decision to conduct petitioners preliminary investigation in a circusfree atmosphere.Petitioner is represented by brilliant legal minds who can protect his
right as an accused.
VI

Recusation

Finally, petitioner prays that the members of this Honorable Court who went to
EDSA put on record who they were and consider recusing or inhibiting themselves,
particularly those who had ex-parte contacts with those exerting pressure on this
Honorable Court, as mentioned in our Motion of March 9, 2001, given the need for the
cold neutrality of impartial judges.[56]
We hold that the prayer lacks merit. There is no ground to inhibit the twelve (12)
members of the Court who merely accepted the invitation of the respondent Arroyo to
attend her oath taking. As mere spectators of a historic event, said members of the
Court did not prejudge the legal basis of the claim of respondent Arroyo to the
presidency at the time she took her oath. Indeed, the Court in its en banc resolution on
January 22, 2001, the first working day after respondent Arroyo took her oath as
President, held in Administrative Matter No. 01-1-05 SC, to wit:
A.M. No. 01-1-05-SC In re: Request for Vice President Gloria Macapagal-Arroyo to Take
Her Oath of Office as President of the Republic of the Philippines before the Chief
Justice Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be
sworn in as President of the Republic of the Philippines, addressed to the Chief Justice
and confirmed by a letter to the Court, dated January 20, 2001, which request was
treated as an administrative matter, the court Resolved unanimously to confirm the
authority given by the twelve (12) members of the Court then present to the Chief
Justice on January 20, 2001 to administer the oath of office to Vice President Gloria
Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001.
This resolution is without prejudice to the disposition of any justiciable case that may be
filed by a proper party.
The above resolution was unanimously passed by the 15 members of the Court. It
should be clear from the resolution that the Court did not treat the letter of respondent
Arroyo to be administered the oath by Chief Justice Davide, Jr., as a case but as an
administrative matter. If it were considered as a case, then petitioner has reason to
fear that the Court has predetermined the legitimacy of the claim of respondent
Arroyo to the presidency. To dispel the erroneous notion, the Court precisely
treated the letter as an administrative matter and emphasized that it was without
prejudice to the disposition of any justiciable case that may be filed by a proper

party. In further clarification, the Court on February 20, 2001 issued another
resolution to inform the parties and the public that it xxx did not issue a resolution on
January 20, 2001 declaring the office of the President vacant and that neither did the
Chief Justice issue a press statement justifying the alleged resolution. Thus, there is
no reason for petitioner to request for the said twelve (12) justices to recuse
themselves. To be sure, a motion to inhibit filed by a party after losing his case is
suspect and is regarded with general disfavor.
Moreover, to disqualify any of the members of the Court, particularly a majority of
them, is nothing short of pro tanto depriving the Court itself of its jurisdiction as
established by the fundamental law.Disqualification of a judge is a deprivation of his
judicial power. And if that judge is the one designated by the Constitution to exercise the
jurisdiction of his court, as is the case with the Justices of this Court, the deprivation of
his or their judicial power is equivalent to the deprivation of the judicial power of the
court itself. It affects the very heart of judicial independence. [57] The proposed mass
disqualification, if sanctioned and ordered, would leave the Court no alternative but to
abandon a duty which it cannot lawfully discharge if shorn of the participation of its
entire membership of Justices.[58]
IN VIEW WHEREOF, petitioners Motion for Reconsideration in G.R. Nos. 14671015 and his Omnibus Motion in G.R. No. 146738 are DENIED for lack of merit.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC

G.R. Nos. 115908-09 December 6, 1995

PEOPLE
OF
THE
vs.
DANNY GODOY, * accused-appellant.

PHILIPPINES, plaintiff-appellee,

REGALADO, J.:
Often glossed over in the emotional arguments against capital punishment is the
amplitude of legal protection accorded to the offender. Ignored by the polemicist are the
safeguards designed to minimally reduce, if not altogether eliminate, the grain of human
fault. Indeed, there is no critique on the plethora of rights enjoyed by the accused
regardless of how ruthlessly he committed the crime. Any margin of judicial error is

further addressed by the grace of executive clemency. But, even before that, all
convictions imposing the penalty of death are automatically reviewed by this Court. The
cases at bar, involving two death sentences, apostrophize for the condemned the role of
this ultimate judicial intervention.
Accused-appellant Danny Godoy was charged in two separate informations filed before
the Regional Trial Court, for Palawan and Puerto Princesa City, Branch 47, with rape
and kidnapping with serious illegal detention, respectively punished under Articles 335
and 267 of the Revised Penal Code, to wit:
In Criminal Case No. 11640 for Rape:
That on or about the evening of the 21st day of January, 1994, at
Barangay Pulot Center, Municipality of Brooke's Point, Province of
Palawan, Philippines, and within the jurisdiction of this Honorable Court,
the said accused by means of force, threat and intimidation, by using a
knife and by means of deceit, did then and there wilfully, unlawfully and
feloniously have carnal knowledge with one Mia Taha to her damage and
prejudice. 1
In Criminal Case No. 11641 for Kidnapping with Serious Illegal Detention:
That on or about the 22nd day of January, 1994, at Barangay Ipilan,
Municipality of Brooke's Point, Province of Palawan, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, a private
individual, and being a teacher of the victim, Mia Taha, and by means of
deceit did then and there wilfully, unlawfully and feloniously kidnap or
detained (sic) said Mia Taha, a girl of 17 years old (sic), for a period of five
(5) days thus thereby depriving said Mia Taha of her liberty against her will
and consent and without legal justification, to the damage and prejudice of
said Mia Taha. 2
During the arraignment on both indictments, appellant pleaded not guilty to said charges
and, after the pre-trial was terminated, a joint trial of the two cases was conducted by
the trial court. 3
According to complainant Mia Taha, at around 7:00 P.M. of January 21, 1994, she went
to the boarding house of her cousin, Merlylyn Casantosan, at Pulot Center, Brooke's
Point which is near the Palawan National School (PNS), Pulot Branch, where she was
studying. When she saw that the house was dark, she decided to pass through the
kitchen door at the back because she knew that there was nobody inside. As soon as
she opened the door, somebody suddenly grabbed her, poked a knife on her neck,
dragged her by the hand and told her not to shout. She was then forced to lie down on

the floor. Although it was dark, complainant was able to recognize her assailant, by the
light coming from the moon and through his voice, as accused-appellant Danny Godoy
who was her Physics teacher at PNS.
When she was already on the floor, appellant removed her panty with one hand while
holding the knife with the other hand, opened the zipper of his pants, and then inserted
his private organ inside her private parts against her will. She felt pain because it was
her first experience and she cried. Throughout her ordeal, she could not utter a word.
She was very frightened because a knife was continually pointed at her. She also could
not fight back nor plead with appellant not to rape her because he was her teacher and
she was afraid of him. She was threatened not to report the incident to anyone or else
she and her family would be killed.
Thereafter, while she was putting on her panty, she noticed that her skirt was stained
with blood. Appellant walked with her to the gate of the house and she then proceeded
alone to the boarding house where she lived. She did not see where appellant went
after she left him at the gate. When she arrived at her boarding house, she saw her
landlady but she did not mention anything about the incident.
The following morning, January 22, 1994, complainant went home to her parents' house
at Ipilan, Brooke's Point. She likewise did not tell her parents about the incident for fear
that appellant might make good his threat. At around 3:00 P.M. of that same day,
appellant arrived at the house of her parents and asked permission from the latter if
complainant could accompany him to solicit funds because she was a candidate for
"Miss PNS Pulot." When her parents agreed, she was constrained to go with appellant
because she did not want her parents to get into trouble.
Appellant and complainant then left the house and they walked in silence, with Mia
following behind appellant, towards the highway where appellant hailed a passenger
jeep which was empty except for the driver and the conductor. She was forced to ride
the jeep because appellant threatened to kill her if she would not board the vehicle. The
jeep proceeded to the Sunset Garden at the poblacion, Brooke's Point where they
alighted.
At the Sunset Garden, appellant checked in and brought her to a room where they staye
d for three days. During the entire duration of their stay at the Sunset Garden,
complainant was not allowed to leave the room which was always kept locked. She was
continuously guarded and constantly raped by appellant. She was, however, never
drunk or unconscious. Nonetheless, she was forced to have sex with appellant because
the latter was always carrying a knife with him.
In the early morning of January 25, 1994, appellant brought her to the house of his
friend at Edward's Subdivision where she was raped by him three times. She was

likewise detained and locked inside the room and tightly guarded by appellant. After two
days, or on January 27, 1994, they left the place because appellant came to know that
complainant had been reported and indicated as a missing person in the police blotter.
They went to see a certain Naem ** from whom appellant sought help. On that same
day, she was released but only after her parents agreed to settle the case with
appellant.
Immediately thereafter, Mia's parents brought her to the District Hospital at Brooke's
Point where she was examined by Dr. Rogelio Divinagracia who made the following
medical findings:
GENERAL: Well developed, nourished, cooperative, walking, conscious,
coherent Filipina.
BREAST: Slightly globular with brown colored areola and nipple.
EXTERNAL EXAM.: Numerous pubic hair, fairly developed labia majora
and minora, hymenal opening stellate in shape, presence of laceration
superficial, longitudinal at the fossa navicularis, approximately 1/2 cm.
length.
INTERNAL EXAM.: Hymenal opening, stellate in shape, laceration noted,
hymenal opening admits 2 fingers with slight resistance, prominent vaginal
rugae, cervix closed.
CONCLUSION: Hymenal opening admits easily 2 fingers with slight
resistance, presence of laceration, longitudinal at the fossa navicularis
approximately 1/2 cm. length. Hymenal opening can admit an average
size penis in erection with laceration. 4
Dr. Divinagracia further testified that the hymenal opening was in stellate shape and that
there was a laceration, which shows that complainant had participated in sexual
intercourse. On the basis of the inflicted laceration which was downward at 6 o'clock
position, he could not say that there was force applied because there were no scratches
or bruises, but only a week-old laceration. He also examined the patient bodily but
found no sign of bruises or injuries. The patient told him that she was raped.
During the cross-examination, complainant denied that she wrote the letters marked as
Exhibits "1" and "2"; that she never loved appellant but, on the contrary, she hated him
because of what he did to her; and that she did not notice if there were people near the
boarding house of her cousin. She narrated that when appellant started to remove her
panty, she was already lying down, and that even as appellant was doing this she could
not shout because she was afraid. She could not remember with which hand appellant

held the knife. She was completely silent from the time she was made to lie down, while
her panty was being removed, and even until appellant was able to rape her.
When appellant went to their house the following day, she did not know if he was armed
but there was no threat made on her or her parents. On the contrary, appellant even
courteously asked permission from them in her behalf and so they left the house with
appellant walking ahead of her. When she was brought to the Sunset Garden, she could
not refuse because she was afraid. However, she admitted that at that time, appellant
was not pointing a knife at her. She only saw the cashier of the Sunset Garden but she
did not notice if there were other people inside. She likewise did not ask the appellant
why he brought her there.
Complainant described the lock in their room as an ordinary doorknob, similar to that on
the door of the courtroom which, even if locked, could still be opened from the inside,
and she added that there was a sliding lock inside the room. According to her, they
stayed at Sunset Garden for three days and three nights but she never noticed if
appellant ever slept because everytime she woke up, appellant was always beside her.
She never saw him close his eyes.
Helen Taha, the mother of complainant, testified that when the latter arrived at their
house in the morning of January 22, 1994, she noticed that Mia appeared weak and her
eyes were swollen. When she asked her daughter if there was anything wrong, the
latter merely kept silent. That afternoon, she allowed Mia to go with appellant because
she knew he was her teacher. However, when Mia and appellant failed to come home at
the expected time, she and her husband, Adjeril, went to look for them at Ipilan. When
they could not find them there, she went to the house of appellant because she was
already suspecting that something was wrong, but appellant's wife told her that he did
not come home.
Early the next morning, she and her husband went to the Philippine National Police
(PNP) station at Pulot, Brooke's Point and had the incident recorded in the police blotter.
The following day, they went to the office of the National Bureau of Investigation (NBI) at
Puerto Princess City, then to the police station near the NBI, and finally to the radio
station airing the Radyo ng Bayan program where she made an appeal to appellant to
return her daughter. When she returned home, a certain Naem was waiting there and
he informed her that Mia was at Brooke's Point. He further conveyed appellant's
willingness to become a Muslim so he could marry Mia and thus settle the case. Helen
Taha readily acceded because she wanted to see her daughter.
In the morning of January 27, 1994, she went to the house of Naem who sent
somebody to fetch complainant. She testified that when Mia arrived, she was crying as
she reported that she was raped by appellant, and that the latter threatened to kill her if
she did not return within an hour. Because of this, she immediately brought Mia to the

hospital where the latter was examined and then they proceeded to the municipal hall to
file a complaint for rape and kidnapping. Both Mia and Helen Taha executed separate
sworn statements before the PNP at Brooke's Point.
Later, Fruit Godoy, the wife of appellant, went to their house and offered P50,000.00 for
the settlement of the case. On their part, her husband insisted that they just settle,
hence all three of them, Adjeril, Helen and Mia Taha, went to the Office of the Provincial
Prosecutor where they met with the mother of appellant who gave them P30,000.00.
Adjeril and Helen Taha subsequently executed an affidavit of desistance in Criminal
Case No. 7687 for kidnapping pending in the prosecutor's office, which was sworn to
before Prosecutor II Chito S. Meregillano. Helen Taha testified that she agreed to the
settlement because that was what her husband wanted. Mia Taha was dropped from the
school and was not allowed to graduate. Her father died two months later, supposedly
because of what happened.
The defense presented a different version of what actually transpired.
According to appellant, he first met Mia Taha sometime in August, 1993 at the Palawan
National School (PNS). Although he did not court her, he fell in love with her because
she often told him "Sir, I love you." What started as a joke later developed into a serious
relationship which was kept a secret from everybody else. It was on December 20, 1993
when they first had sexual intercourse as lovers. Appellant was then assigned at the
Narra Pilot Elementary School at the poblacion because he was the coach of the
Palawan delegation for chess. At around 5:00 P.M. of that day, complainant arrived at
his quarters allegedly because she missed him, and she then decided to spend the
night there with him.
Exactly a month thereafter, specifically in the evening of January 20, 1994, Erna
Baradero, a teacher at the PNS, was looking inside the school building for her husband,
who was a security guard of PNS, when she heard voices apparently coming from the
Orchids Room. She went closer to listen and she heard a girl's voice saying "Mahal na
mahal kita, Sir, iwanan mo ang iyong asawa at tatakas tayo." Upon hearing this, she
immediately opened the door and was startled to see Mia Taha and Danny Godoy
holding hands. She asked them what they were doing there at such an unholy hour but
the two, who were obviously caught by surprise, could not answer. She then hurriedly
closed the door and left. According to this witness, complainant admitted to her that she
was having an affair with appellant. Desirous that such illicit relationship must be
stopped, Erna Baradero informed appellant's wife about it when the latter arrived from
Manila around the first week of February, 1994.
Upon the request of appellant's wife, Erna Baradero executed an affidavit in connection
with the present case, but the same was not filed then because of the affidavit of
desistance which was executed and submitted by the parents of complainant. In her

sworn statement, later marked in evidence as Exhibit "7", Erna Baradero alleged that on
January 21, 1994, she confronted Mia Taha about the latter's indiscretion and reminded
her that appellant is a married man, but complainant retorted, "Ano ang pakialam mo,"
adding that she loves appellant very much.
Appellant testified that on January 21, 1994, at around 7:00 P.M., Mia Taha went to his
office asking for help with the monologue that she would be presenting for the Miss PNS
contest. He agreed to meet her at the house of her cousin, Merlylyn Casantosan.
However, when he reached the place, the house was dark and he saw Mia waiting for
him outside. Accordingly, they just sat on a bench near the road where there was a
lighted electric post and they talked about the matter she had earlier asked him about.
They stayed there for fifteen minutes, after which complainant returned to her boarding
house just across the street while appellant headed for home some fifteen meters away.
It appears that while complainant was then waiting for appellant, Filomena Pielago, a
former teacher of Mia at PNS and who was then on her way to a nearby store, saw her
sitting on a bench and asked what she was doing there at such a late hour. Complainant
merely replied that she was waiting for somebody. Filomena proceeded to the store
and, along the way, she saw Inday Zapanta watering the plants outside the porch of her
house. When Filomena Pielago returned, she saw complainant talking with appellant
and she noticed that they were quite intimate because they were holding hands. This
made her suspect that the two could be having a relationship. She, therefore, told
appellant that his wife had finished her aerobics class and was already waiting for him.
She also advised Mia to go home.
Prior to this incident, Filomena Pielago already used to see them seated on the same
bench. Filomena further testified that she had tried to talk appellant out of the
relationship because his wife had a heart ailment. She also warned Mia Taha, but to no
avail. She had likewise told complainant's grandmother about her activities. At the trial,
she identified the handwriting of complainant appearing on the letters marked as
Exhibits "1" and "2", claiming that she is familiar with the same because Mia was her
former student. On cross-examination, Filomena clarified that when she saw the couple
on the night of January 21, 1994, the two were talking naturally, she did not see Mia
crying, nor did it appear as if appellant was pleading with her.
In the afternoon of the following day, January 22, 1994, appellant met Mia's mother on
the road near their house and she invited him to come up and eat "buko," which
invitation he accepted. Thirty minutes thereafter, complainant told him to ask permission
from her mother for them to go and solicit funds at the poblacion, and he did so. Before
they left, he noticed that Mia was carrying a plastic bag and when he asked her about it,
she said that it contained her things which she was bringing to her cousin's house.
Appellant and Mia went to the poblacion where they solicited funds until 6:30 P.M. and
then had snacks at the Vic Tan Store.

Thereafter, complainant told appellant that it was already late and there was no more
available transportation, so she suggested that they just stay at Sunset Garden.
Convinced that there was nothing wrong in that because they already had intimate
relations, aside from the fact that Mia had repeatedly told him she would commit suicide
should he leave her, appellant was prevailed upon to stay at the hotel. Parenthetically, it
was complainant who arranged their registration and subsequently paid P400.00 for
their bill from the funds they had solicited. That evening, however, appellant told
complainant at around 9:00 P.M. that he was going out to see a certain Bert Dalojo at
the latter's residence. In truth, he borrowed a motorcycle from Fernando Rubio and went
home to Pulot. He did not bring complainant along because she had refused to go
home.
The following morning, January 23, 1994, appellant went to the house of complainant's
parents and informed them that Mia spent the night at the Sunset Garden. Mia's parents
said that they would just fetch her there, so he went back to Sunset Garden and waited
for them outside the hotel until 5:00 P.M. When they did not arrive, he decided to go with
one Isagani Virey, whom he saw while waiting near the road, and they had a drinking
session with Virey's friends. Thereafter, Virey accompanied him back to Sunset Garden
where they proceeded to Mia's room. Since the room was locked from the inside, Virey
had to knock on the door until it was opened by her.
Once inside, he talked to complainant and asked her what they were doing, but she
merely answered that what she was doing was of her own free will and that at that
moment her father was not supposed to know about it for, otherwise, he would kill her.
What complainant did not know, however, was that appellant had already reported the
matter to her parents, although he opted not to tell her because he did not want to add
to her apprehensions. Isagani Virey further testified that when he saw appellant and
complainant on January 23 and 24, 1994, the couple looked very happy.
Appellant denied that they had sexual intercourse during their entire stay at Sunset
Garden, that is, from January 22 to 24, 1994, because he did not have any idea as to
what she really wanted to prove to him. Appellant knew that what they were doing was
wrong but he allegedly could not avoid Mia because of her threat that she would commit
suicide if he left her. Thus, according to appellant, on January 24, 1994 he asked
Isagani Virey to accompany him to the house of Romy Vallan, a policeman, to report the
matter.
Additionally, Virey testified that appellant and Mia went to see him at his aunt's house to
ask for assistance in procuring transportation because, according to appellant, the
relatives of Mia were already looking for them and so they intend to go to Puerto
Princesa City. Virey accompanied them to the house of Romy Vallan, whose wife was a
co-teacher of appellant's wife, but the latter refused to help because of the complicated
situation appellant was in.

Nevertheless, Vallan verified from the police station whether a complaint had been filed
against appellant and after finding out that there was none, he told appellant to just
consult a certain Naem who is an "imam." Appellant was able to talk to Naem at Vallan's
house that same day and bared everything about him and Mia. Naem suggested that
appellant marry complainant in Muslim rites but appellant refused because he was
already married. It was eventually agreed that Naem would just mediate in behalf of
appellant and make arrangements for a settlement with Mia's parents. Later that day,
Naem went to see the parents of complainant at the latter's house.
The following day, January 25, 1994, allegedly because complainant could no longer
afford to pay their hotel bills, the couple were constrained to transfer to the house of
appellant's friend, Fernando Rubio, at Edward's Subdivision where they stayed for two
days. They just walked along the national highway from Sunset Garden to Edward's
Subdivision which was only five hundred to seven hundred meters away. The owner of
the house, Fernando Rubio, as well as his brother Benedicto Rubio, testified that the
couple were very happy, they were intimate and sweet to each other, they always ate
together, and it was very obvious that they were having a relationship.
In fact, Fernando Rubio recalled that complainant even called appellant "Papa." While
they were there, she would buy food at the market, help in the cooking, wash clothes,
and sometimes watch television. When Fernando Rubio once asked her why she chose
to go with appellant despite the fact the he was a married man, Mia told him that she
really loved appellant. She never told him, and Fernando Rubio never had the slightest
suspicion, that she was supposed to have been kidnapped as it was later claimed. He
also testified that several police officers lived within their neighborhood and if
complainant had really been kidnapped and detained, she could have easily reported
that fact to them. Mia was free to come and go as she pleased, and the room where
they stayed was never locked because the lock had been destroyed.
On cross-examination, Fernando Rubio declared that appellant was merely an
acquaintance of his; that it was Naem who went to the lodging house to arrange for Mia
to go home; that complainant's mother never went to his house; and that it was Chief of
Police Eliseo Crespo who fetched appellant from the lodging house and brought him to
the municipal hall.
Shortly before noon of January 26, 1994, Naem again met with appellant at Edward's
Subdivision and informed him that complainant's parents were willing to talk to him at
Naem's house the next day. The following morning, or on January 27, 1994, appellant
was not able to talk to complainant's parents because they merely sent a child to fetch
Mia at Edward's Subdivision and to tell her that her mother, who was at Naem's house,
wanted to see her. Appellant permitted complainant to go but he told her that within one
hour he was be going to the police station at the municipal hall so that they could settle
everything there.

After an hour, while appellant was already on his way out of Edward's Subdivision, he
was met by Chief of Police Eliseo Crespo who invited him to the police station.
Appellant waited at the police station the whole afternoon but when complainant, her
parents and relatives arrived at around 5:00 P.M., he was not given the chance to talk to
any one of them. That afternoon of January 27, 1994, appellant was no longer allowed
to leave and he was detained at the police station after Mia and her parents lodged a
complaint for rape and kidnapping against him.
During his detention, Mia's cousin, Lorna Casantosan, delivered to appellant on different
occasions two letters from complainant dated February 27, 1994 and March 1, 1994,
respectively. As Mia's teacher, appellant is familiar with and was, therefore, able to
identify the handwriting in said letters as that of Mia Taha. After a time, he came to
know, through his mother, that an affidavit of desistance was reportedly executed by
complainants. However, he claims that he never knew and it was never mentioned to
him, not until the day he testified in court, that his mother paid P30,000.00 to Mia's
father because, although he did not dissuade them, neither did he request his mother to
talk to complainants in order to settle the case.
Under cross-examination, appellant denied that he poked a knife at and raped Mia Taha
on January 21, 1994. However, he admitted that he had sex with Mia at the Sunset
Garden but that was already on January 24, 1994. While they were at Edward's
Subdivision, they never had sexual relations. Appellant was told, when complainant
visited him in jail, that her father would kill her if she refused to testify against him,
although by the time she testified in court, her father had already died.
Appellant further testified that complainant has had several illicit relations in the
boarding house of her cousin, Merlylyn Casantosan, which was a well-known fact in
Pulot. However, he decided to have a relationship with her because he wanted to
change her and that was what they had agreed upon. Appellant denied that, during the
time when they were staying together, Mia had allegedly asked permission to leave
several times but that he refused. On the contrary, he claimed that on January 27, 1994
when she told him that her parents wanted to see her, he readily gave her permission to
go.
He also identified the clothes that Mia brought with her when they left her parents'
house on January 22, 1994, but which she left behind at the Rubios' lodging house after
she failed to return on January 27, 1994. The bag of clothes was brought to him at the
provincial jail by Benedicto Rubio.
Appellant likewise declared that he had been detained at the provincial jail since
January 27, 1994 but the warrant for his arrest was issued only on January 28, 1994;
and that he did not submit a counter-affidavit because according to his former counsel,
Atty. Paredes, it was no longer necessary since the complainants had already executed

an affidavit of desistance. He admits having signed a "Waiver of Right to Preliminary

Investigation" in connection with these cases.
On rebuttal, Lorna Casantosan, the cousin of Mia Taha, denied that she delivered any
letter to appellant when the latter was still detained at the provincial jail. She admitted,
on cross-examination, that she was requested by Mia Taha to testify for her, although
she clarified that she does not have any quarrel or misunderstanding with appellant.
Mia Taha was again presented on rebuttal and she denied the testimony of Erna
Baradero regarding the incident at the Orchids Room because, according to her, the
truth was that she was at the boarding house of Toto Zapanta on that date and time.
She likewise negated the claim that Erna Baradero confronted her on January 21, 1994
about her alleged relationship with appellant contending that she did not see her former
teacher on that day. Similarly, she disclaimed having seen and talked to Filemona
Pielago on the night of January 21, 1994. She vehemently disavowed that she and
appellant were lovers, much less with intimate relations, since there never was a time
that they became sweethearts.
She sought to rebut, likewise through bare denials, the following testimonies of the
defense witnesses: that she told appellant "iwanan mo ang iyong asawa at tatakas
tayo;" that she answered "wala kang pakialam" when Erna Baradero confronted her
about her relationship with appellant; that she was the one who registered them at
Sunset Garden and paid for their bill; that appellant left her at Sunset Garden to go to
Ipil on January 22, 1994; that Isagani Virey came to their room and stayed there for five
minutes, because the only other person who went there was the room boy who served
their food; that they went to the house of Virey's aunt requesting help for transportation;
and that she was free to roam around or to go out of the lodging house at Edward's
Subdivision.
Mia Taha also rejected as false the testimony of appellant that she went to see him at
Narra, Palawan to have sex with him and claims that the last time she went to Narra
was when she was still in Grade VI; that she ever told him "I love you, sabik no sabik
ako sa iyo" when she allegedly went to Narra; that she wrote to him, since the letters
marked as Exhibits "1" and "2" are not hers; that she threatened to commit suicide if
appellant would leave her since she never brought a blade with her; and that at Sunset
Garden and at Edward's Subdivison, she was not being guarded by appellant.
However, on cross-examination, complainant identified her signature on her test paper
marked as Exhibit "4" and admitted that the signature thereon is exactly the same as
that appearing on Exhibits "1" and "2". Then, contradicting her previous disclaimers, she
also admitted that the handwriting on Exhibits "1" and "2" all belong to her.

On sur-rebuttal, Armando Pasion, a provincial guard of the Provincial Jail, Palawan who
volunteered to testify in these cases, identified Lorna Casantosan as the person who
visited appellant in jail on February 27, 1994 at around 4:00 P.M. Since he was on duty
at that time, he asked her what she wanted and she said she would just visit appellant.
Pasion then called appellant and told him he had a visitor. Lorna Casantosan and
appellant talked at the visiting area which is around ten meters away from his post, and
then he saw her hand over to appellant a letter which the latter immediately read. This
witness declared that appellant never requested him to testify.
Another sur-rebuttal witness, Desmond Selga, a jeepney driver, testified that in the
afternoon of January 22, 1994, he was plying his regular route in going to Brooke's
Point and, when he passed by Ipilan, he picked up appellant and Mia Taha. At that time,
there were already several passengers inside his jeepney. The two got off at the
poblacion market. He denied that he brought them to the Sunset Garden.
On May 20, 1994, the court a quo rendered judgment 5 finding appellant guilty beyond
reasonable doubt of the crimes of rape and kidnapping with serious illegal detention,
and sentencing him to the maximum penalty of death in both cases. 6By reason of the
nature of the penalty imposed, these cases were elevated to this Court on automatic
review.
The records show that, on the basis of the complaints for rape 7 and kidnapping with
serious illegal detention 8 filed by Mia Taha and Helen Taha, respectively, the Municipal
Trial Court of Brooke's Point issued a resolution 9 on February 4, 1994 finding the
existence of a prima facie case against appellant. On February 10, 1994, the spouses
Adjeril Taha and Helen Taha executed an affidavit of desistance withdrawing the charge
of kidnapping with serious illegal detention. 10However, pursuant to a joint
resolution 11 issued on March 11, 1994 by Prosecutor II Reynaldo R. Guayco of the
Office of the Provincial Prosecutor, two separate informations for rape and for
kidnapping with serious illegal detention were nevertheless filed against appellant
Danny Godoy with no bail recommended in both charges.
Appellant is now before us seeking the reversal of the judgment of the court below, on
the following assignment of errors:
I. The trial court erred in convicting the accused-appellant (of) the crime of
rape despite the fact that the prosecution failed to prove his guilt beyond
reasonable doubt.
II. The trial court erred by failing to adhere to the doctrine/principle in
reviewing the evidence adduced in a prosecution for the crime of rape as
cited in its decision reiterating the case of People vs. Calixto (193 SCRA
303).

III. The trial court erred in concluding that the accused-appellant had
consummated the crime of rape against private complainant.
IV. The trial court erred by its failure to give any credence to Exhibits "1"
and "2" as evidence of the defense.
V. The trial court erred in convicting the accused-appellant of the crime of
kidnapping with serious illegal detention as the prosecution failed to prove
his guilt beyond reasonable doubt.
VI. The trial court erred in giving full faith and credence to the testimonies
of prosecution witnesses and completely ignoring the testimonies of the
defense witnesses.
VII. The trial court erred in concluding that there was implied admission of
guilt on the part of the accused-appellant in view of the offer to
compromise.
VIII. The trial court erred in ordering that the complainant be indemnified in
the sum of one hundred thousand pesos (P100,000.00) for each of the
alleged crimes committed.
IX. The trial court gravely erred by imposing the death penalty for each of
the crimes charged on the accused-appellant despite the fact that the
crimes were allegedly committed prior to the effectivity of Republic Act No.
7659. 12
A. The Rape Case
A rape charge is a serious matter with pernicious consequences. It exposes both the
accused and the accuser to humiliation, fear and anxieties, not to mention the stigma of
shame
that
both
have
to
bear
for
the
rest
of
their
13
lives. By the very nature of the crime of rape, conviction or acquittal depends almost
entirely on the credibility of the complainant's testimony because of the fact that usually
only the participants can testify as to its occurrence. 14 This notwithstanding, the basic
rule remains that in all criminal prosecutions without regard to the nature of the defense
which the accused may raise, the burden of proof remains at all times upon the
prosecution to establish his guilt beyond a reasonable doubt. If the accused raises a
sufficient doubt as to any material element, and the prosecution is then unable to
overcome this evidence, the prosecution has failed to carry its burden of proof of the
guilt of the accused beyond a reasonable doubt and the accused must be acquitted. 15
The rationale for the rule is that, confronted by the full panoply of State authority, the
accused is accorded the presumption of innocence to lighten and even reverse the

heavy odds against him. Mere accusation is not enough to convict him, and neither is
the weakness of his defense. The evidence for the prosecution must be strong per se,
strong enough to establish the guilt of the accused beyond reasonable doubt. 16 In other
words, the accused may be convicted on the basis of the lone uncorroborated testimony
of the offended woman, provided such testimony is clear, positive, convincing and
otherwise consistent with human nature and the normal course of things.
There are three well-known principles that guide an appellate court in reviewing the
evidence presented in a prosecution for the crime of rape. These are: (1) while rape is a
most detestable crime, and ought to be severely and impartially punished, it must be
borne in mind that it is an accusation easy to be made, hard to be proved, but harder to
be defended by the party accused, though innocent; 17 (2) that in view of the intrinsic
nature of the crime of rape where only two persons are usually involved, the testimony
of the complainant must be scrutinized with extreme caution; 18 and (3) that the evidence
for the prosecution must stand or fall on its own merits and cannot be allowed to draw
strength from the weakness of the evidence for the defense. 19
In the case at bar, several circumstances exist which amply demonstrate and
ineluctably convince this Court that there was no rape committed on the alleged date
and place, and that the charge of rape was the contrivance of an afterthought, rather
than a truthful plaint for redress of an actual wrong.
I. Two principal facts indispensably to be proven beyond reasonable doubt for conviction
of the crime of rape under paragraph (1), Article 335 of the Revised Penal Code are,
first, that the accused had carnal knowledge of the complainant; and, second, that the
same was accomplished through force or intimidation.
1. The prosecution has palpably failed to prove beyond peradventure of doubt that
appellant had sexual congress with complainant against her will. Complainant avers that
on the night of January 21, 1994, she was sexually assaulted by appellant in the
boarding house of her cousin, Merlelyn Casantosan. Appellant, on the other hand,
denied such a serious imputation and contends that on said date and time, he merely
talked with complainant outside that house. We find appellant's version more credible
and sustained by the evidence presented and of record.
According to complainant, when she entered the kitchen of the boarding house,
appellant was already inside apparently waiting for her. If so, it is quite perplexing how
appellant could have known that she was going there on that particular day and at that
time, considering that she does not even live there, unless of course it was appellant's
intention to satisfy his lustful desires on anybody who happened to come along. But
then this would be stretching the imagination too far, aside from the fact that such a
generic intent with an indeterminate victim was never established nor even intimated by
the prosecution.

Moreover, any accord of credit to the complainant's story is precluded by the

implausibility that plagues it as regards the setting of the supposed sexual assault. 20 It
will be noted that the place where the alleged crime was committed is not an ordinary
residence but a boarding house where several persons live and where people are
expected to come and go. The prosecution did not even bother to elucidate on whether
it was the semestral break or that the boarding house had remained closed for some
time, in order that it could be safely assumed that nobody was expected to arrive at any
given time.
Appellant, on the other hand, testified that on that fateful day, he went to the boarding
house upon the invitation of complainant because the latter requested him to help her
with her monologue for the Miss PNS contest. However, they were not able to go inside
the house because it was locked and there was no light, so they just sat on a bench
outside the house and talked. This testimony of appellant was substantially
corroborated by defense witness Filomena Pielago. She affirmed that in the evening of
January 21, 1994, she saw both appellant and complainant seated on a bench outside
the boarding house, and that she even advised them to go home because it was
already late and appellant's wife, who was the head teacher of witness Pielago, was
waiting for him at the school building. On rebuttal, complainant could only deny that she
saw Pielago that night. Doctrinally, where the inculpatory facts and circumstances are
capable of two or more explanations one of which is consistent with the innocence of
the accused and the other consistent with his guilt, then the evidence does not fulfill the
test of moral certainty and is not sufficient to support a conviction. 21
It was further alleged by complainant that after her alleged ravishment, she put on her
panty and then appellant openly accompanied her all the way to the gate of the house
where they eventually parted ways. This is inconceivable. It is not the natural tendency
of a man to remain for long by the side of the woman he had raped, 22 and in public in a
highly populated area at that. Given the stealth that accompanies it and the anxiety to
end further exposure at the scene, the logical post-incident impulse of the felon is to
distance himself from his victim as far and as soon as practicable, to avoid discovery
and apprehension. It is to be expected that one who is guilty of a crime would want to
dissociate himself from the person of his victim, the scene of the crime, and from all
other things and circumstances related to the offense which could possibly implicate
him or give rise to even the slightest suspicion as to his guilt. Verily, the guilty flee where
no man pursueth.
It is of common knowledge that facts which prove or tend to prove that the accused was
at the scene of the crime are admissible as relevant, on the theory that such presence
can be appreciated as a circumstance tending to identify the appellant. 23 Consequently,
it is not in accord with human experience for appellant to have let himself be seen with
the complainant immediately after he had allegedly raped her. 24 It thus behooves this
Court to reject the notion that appellant would be so foolhardy as to accompany

complainant up to the gate of the house, considering its strategic locationvis-avis complainant's boarding house which is just across the street, 25 and the PNS
schoolbuilding which is only around thirty meters away. 26
Complainant mentioned in her narration that right after the incident she went directly to
her boarding house where she saw her landlady. Yet, the landlady was never presented
as a witness to corroborate the story of complainant, despite the fact that the former
was the very first person she came in contact with from the time appellant allegedly left
her at the gate of the Casantosan boarding house after her alleged traumatic ordeal.
Even though they supposedly did not talk, the landlady could at least have testified on
complainant's physical appearance and to attest to the theorized fact that indeed she
saw complainant on said date and hour, possibly with dishevelled hair, bloody skirt and
all.
We are, therefore, justifiedly inclined to believe appellant's version that it was Mia Taha
who invited him to the boarding house to help her with the monologue she was
preparing for the school contest. This is even consonant with her testimony that
appellant fetched her the following day in order to solicit funds for her candidacy in that
same school affair.
In contrast, complainant's professed reason for going to the boarding house is vague
and tenuous. At first, she asserted that she was at the boarding house talking with a
friend and then, later, she said it was her cousin. Subsequently, she again wavered and
said that she was not able to talk to her cousin. Furthermore, she initially stated that on
January 21, 1994 at around 7:00 P.M., she was at the boarding house conversing with
her cousin. Then in the course of her narration, she gave another version and said that
when she reached the boarding house it was dark and there was nobody inside.
The apparent ease with which she changed or adjusted her answers in order to cover
up or realign the same with her prior inconsistent statements is readily apparent from
her testimony even on this single episode, thus:
Q Sometime on January 21, 1994, at about 7:00 o'clock in
the evening, do you remember where you were?
A Yes, sir.
Q Where were you?
A I was in the boarding house of Merlylyn Casantosan, Sir.
xxx xxx xxx
Q Why were you there?

A I was conversing with my friend there, Sir.

COURT:
Q Conversing with whom?
A With my cousin, Your Honor.
Q Your cousin's name?
A Merlylyn Casantosan, Your Honor.
xxx xxx xxx
PROSECUTOR GUAYCO:
Q You said that this Dane or Danny Godoy raped you, will
you please relate to this Honorable Court how that rape
happened?
A On Friday and it was 7:00 o'clock in the evening.
COURT:
Q Of what date?
A January 21, 1994, Your Honor.
xxx xxx xxx
PROSECUTOR GUAYCO:
Q Then what happened?
A I went to the boarding house of my cousin Merlylyn
Casantosan. I passed (through) the kitchen and then when I
opened the door somebody grabbed me suddenly.
xxx xxx xxx
Q During that time were there other people present in that
boarding house where you said Danny Godoy raped you?
A None, Sir.

COURT:
Q So, the house was empty?
A Yes, Your Honor.
Q I thought your cousin was there and you were conversing?
A When I went there she was not there,
Honor. 27 (Corrections and emphasis supplied.)

Your

2. Complainant testified that appellant raped her through the use of force and
intimidation, specifically by holding a knife to her neck. However, the element of force
was not sufficiently established. The physical facts adverted to by the lower court as
corroborative of the prosecution's theory on the use of force are undoubtedly the
medico-legal findings of Dr. Rogelio Divinagracia. Upon closer scrutiny, however, we
find that said findings neither support nor confirm the charge that rape was so
committed through forcible means by appellant against complainant on January 21,
1994.
The reported hymenal laceration which, according to Dr. Divinagracia, was a week old
and already healed, and the conclusion therefrom that complainant had sexual
intercourse with a man on the date which she alleged, do not establish the supposed
rape since the same findings and conclusion are likewise consistent with appellant's
admission that coitus took place with the consent of complainant at Sunset Garden on
January 24, 1994. 28Further, rather than substantiating the prosecution's aforesaid
theory and the supposed date of commission of rape, the finding that there were no
evident signs of extra-genital injuries tends, instead, to lend more credence to
appellant's claim of voluntary coition on a later date and the absence of a struggle or the
lack of employment of physical force. 29 In rape of the nature alleged in this case, we
repeat, the testimony of the complainant must be corroborated by physical evidence
showing use of force. 30
Thus, on the basis of the laceration inflicted, which is superficial at 6 o'clock position,
the aforesaid medico-legal expert opined that it could not be categorically stated that
there was force involved. On further questioning, he gave a straightforward answer that
force was not applied. 31 He also added that when he examined the patient bodily, he did
not see any sign of bruises. 32 The absence of any sign of physical violence on the
complainant's body is an indication of complainant's consent to the act. 33 While the
absence in the medical certificate of external signs of physical injuries on the victim
does not necessarily negate the commission of rape, 34 the instant case is clearly an
exception to this rule since appellant has successfully cast doubt on the veracity of that
charge against him.

Even granting ex gratia argumenti that the medical report and the laceration
corroborated complainant's assertion that there was sexual intercourse, of course the
same cannot be said as to the alleged use of force. It has been held that such
corroborative evidence is not considered sufficient, since proof of facts constituting one
principal element of the crime is not corroborative proof of facts necessary to constitute
another equally important element of the crime. 35
Complainant testified that she struggled a little but it was not really strong because she
was afraid of appellant. Again assuming that a sexual assault did take place as she
claims, we nevertheless strongly believe that her supposed fear is more imaginary than
real. It is evident that complainant did not use the manifest resistance expected of a
woman defending her honor and chastity. 36 She failed to make any outcry when
appellant allegedly grabbed her and dragged her inside the house. There is likewise no
evidence on record that she put up a struggle when appellant forced her to lie on the
floor, removed her panty, opened the zipper of his trousers, and inserted his organ
inside her genitals. Neither did she demonstrate that appellant, in committing the
heinous act, subjected her to any force of whatever nature or form.
Complainant's explanation for her failure to shout or struggle is too conveniently general
and ruefully unconvincing to make this Court believe that she tenaciously resisted the
alleged sexual attack on her by appellant. And, if ever she did put up any struggle or
objected at all to the involuntary intercourse, such was not enough to show the kind of
resistance expected of a woman defending her virtue and honor. 37 Her failure to do
anything while allegedly being raped renders doubtful her charge of rape, 38 especially
when we consider the actual mise-en-scene in the context of her asseverations.
There is a rule that the rape victim's panty and blood-stained dress are not essential,
and need not be presented, as they are not indispensable evidence to prove rape. 39 We
incline to the view, however, that this general rule holds true only if there exist other
corroborative evidence sufficiently and convincingly proving the rape charge beyond
reasonable doubt. The rule should go the other way where, as in the present case, the
testimony of complainant is inherently weak and no other physical evidence has been
presented to bolster the charge of sexual abuse except for the medical report which, as
earlier discussed, even negated the existence of one of the essential elements of the
crime. We cannot, therefore, escape the irresistible conclusion that the deliberate nonpresentation of complainant's blood-stained skirt, if it did exist, should vigorously militate
against the prosecution's cause.
II. The conduct of the outraged woman immediately following the alleged assault is of
the utmost importance as tending to establish the truth or falsity of the charge. It may
well be doubted whether a conviction for the offense of rape should even be sustained
from the uncorroborated testimony of the woman unless the court is satisfied beyond
doubt that her conduct at the time when the alleged rape was committed and

immediately thereafter was such as might be reasonably expected from her under all
the
circumstances
of
the
40
case.
Complainant said that on the day following the supposed rape, appellant went to her
parents' house and asked permission from them to allow her to go with him to solicit
funds for her candidacy. Nowhere throughout her entire testimony did she aver or imply
that appellant was armed and that by reason thereof she was forced to leave with him.
In brief, she was neither threatened nor intimidated by appellant. Her pretense that she
was afraid of the supposed threat previously made by appellant does not inspire belief
since appellant was alone and unarmed on that occasion and there was no showing of
any opportunity for him to make good his threat, even assuming that he had really
voiced any. On the contrary, complainant even admitted that appellant respectfully
asked permission from her parents for her to accompany him.
Complainant's enigmatic behavior after her alleged ravishment can only be described as
paradoxical: it was so strangely normal as to be abnormal. 41 It seems odd, if not
incredible, that upon seeing the person who had allegedly raped her only the day
before, she did not accuse, revile or denounce him, or show rage, revulsion, and
disgust. 42 Instead, she meekly went with appellant despite the presence of her parents
and the proximity of neighbors which, if only for such facts, would naturally have
deterred appellant from pursuing any evil design. From her deportment, it does not
appear that the alleged threat made by appellant had instilled any fear in the mind of
complainant. Such a nonchalant, unconcerned attitude is totally at odds with the
demeanor that would naturally be expected of a person who had just suffered the
ultimate invasion of her womanhood. 43
III. Rape is a very emotional word, and the natural human reactions to it are categorical:
admiration and sympathy for the courageous female publicly seeking retribution for her
outrageous violation, and condemnation of the rapist. However, being interpreters of the
law and dispensers of justice, judges must look at a rape charge without those
proclivities, and deal with it with extreme caution and circumspection. Judges must free
themselves of the natural tendency to be overprotective of every woman decrying her
having been sexually abused, and demanding punishment for the abuser. While they
ought to be cognizant of the anguish and humiliation the rape victim goes through as
she demands justice, judges should equally bear in mind that their responsibility is to
render justice based on the law. 44
The rule, therefore, that this Court generally desists from disturbing the conclusions of
the trial court on the credibility of witnesses 45 will not apply where the evidence of
record fails to support or substantiate the lower court's findings of fact and conclusions;
or where the lower court overlooked certain facts of substance and value that, if

considered, would affect the outcome of the case; or where the disputed decision is
based on a misapprehension of facts.46
The trial court here unfortunately relied solely on the lone testimony of complainant
regarding the January 21, 1994 incident. Indeed, it is easy to allege that one was raped
by a man. All that the victim had to testify to was that appellant poked a knife at her,
threatened to kill her if she shouted and under these threats, undressed her and had
sexual intercourse with her. The question then that confronts the trial court is whether or
not complainant's testimony is credible. 47 The technique in deciphering testimony is not
to solely concentrate on isolated parts of that testimony. The correct meaning of the
testimony can often be ascertained only upon a perusal of the entire testimony.
Everything stated by the witness has to be considered in relation to what else has been
stated. 48
In the case at bar, the challenged decision definitely leaves much to be desired. The
court below made no serious effort to dispassionately or impartially consider the totality
of the evidence for the prosecution in spite of the teaching in various rulings that in rape
cases, the testimony of the offended party must not be accepted with precipitate
credulity. 49 In finding that the crime of rape was committed, the lower court took into
account only that portion of the testimony of complainant regarding the January 21,
1994 incident and conveniently deleted the rest. Taken singly, there would be reason to
believe that she was indeed raped. But if we are to consider the other portions of her
testimony concerning the events which transpired thereafter, which unfortunately the
court a quo wittingly or unwittingly failed or declined to appreciate, the actual truth could
have been readily exposed.
There are easily perceived or discernible defects in complainant's testimony which
inveigh against its being accorded the full credit it was given by the trial court.
Considered independently of any other, the defects might not suffice to overturn the trial
court's judgment of conviction; but assessed and weighed conjointly, as logic and
fairness dictate, they exert a powerful compulsion towards reversal of said
judgment. 50 Thus:
1. Complainant said that she was continuously raped by herein appellant at the Sunset
Garden and around three times at Edward's Subdivision. In her sworn statement she
made the same allegations. If this were true, it is inconceivable how the investigating
prosecutor could have overlooked these facts with their obvious legal implications and,
instead, filed an information charging appellant with only one count of rape. The
incredibility of complainant's representations is further magnified by the fact that even
the trial court did not believe it, as may be inferred from its failure to consider this aspect
of her testimony, unless we were to uncharitably assume that it was similarly befuddled.

2. She claims that appellant always carried a knife, but it was never explained how she
was threatened with the same in such a manner that she was allegedly always cowed
into giving in to his innumerable sexual demands. We are not unaware that in rape
cases, this claim that complainant now advances appears to be a common testimonial
expedient and face-saving subterfuge.
3. According to her, they stayed at Sunset Garden for three days and three nights and
that she never noticed if appellant slept because she never saw him close his eyes. Yet,
when asked if she slept side by side with appellant, complainant admitted that everytime
she woke up, appellant was invariably in bed beside her. 51
4. She alleged that she could never go out of the room because it was always locked
and it could not be opened from the inside. But, this was refuted by complainant's own
testimony, as follows:
Q And yet the door could be opened by you from the inside?
A No, Sir, it was locked.
Q Can you describe the lock of that room?
A It's like that of the door where there is a doorknob.
ATTY. EBOL:
Let it be recorded that the lock is a doorknob and may I ask
that the door be locked and opened from the inside.
COURT:
Alright (sic) you go down the witness stand and find out for
yourself if you can open that door from the inside.
CLERK OF COURT:
Witness holding the doorknob.
COURT:
The key is made to open if you are outside, but as you're
were (sic) inside you can open it?
A Yes, sir.

Q Is there no other lock aside from that doorknob that you

held?
A There was, Your Honor.
Q What is that?
A The one that slides, Your Honor.
Q And that is used when you are already inside?
A Yes, Your Honor. 52 (Emphases ours.)
5. During their entire stay at the Sunset Garden or even at Edward's Subdivision,
beyond supposedly offering token or futile resistance to the latter's sexual advances,
she made no outcry, no attempt to flee or attract attention to her plight. 53 In her own
declaration, complainant mentioned that when they checked in at Sunset Garden, she
saw the cashier at the information counter where appellant registered. She did not do
anything, despite the fact that appellant at that time was admittedly not armed. She
likewise stated that a room boy usually went to their room and brought them food. If
indeed she was bent on fleeing from appellant, she could have grabbed every possible
opportunity to escape. Inexplicably, she did not. What likewise appears puzzling is the
prosecution's failure to present these two people she mentioned and whose testimonies
could have bolstered or corroborated complainant's story.
6. When appellant fetched complainant in the afternoon of January 22, 1994, they left
the house together and walked in going to the highway. In her own testimony,
complainant stated that appellant went ahead of her. It is highly improbable, if appellant
really had evil motives, that he would be that careless. It is likewise beyond
comprehension that appellant was capable of instilling such fear in complainant that she
could not dare take advantage of the situation, in spite of the laxity of appellant, and run
as far away from him as possible despite all the chances therefor.
7. Helen Taha, the mother of Mia, testified that as a result of the filing of the rape case,
complainant was dropped from school and was not allowed to graduate. This is absurd.
Rather than support and commiserate with the ill-fated victim of rape, it would appear
that the school authorities were heartless people who turned their backs on her and
considered her an outcast. That would be adding insult to injury. But what is more
abstruse yet significant is that Mia and her parents were never heard to complain about
this apparent injustice. Such complacency cannot but make one think and conclude that
there must necessarily have been a valid justification for the drastic action taken by the
school and the docile submission thereto by the Taha family.

On the other hand, in evaluating appellant's testimony, the trial court's decision was
replete with sweeping statements and generalizations. It chose to focus on certain
portions of appellant's testimony, declared them to be preposterous and abnormal, and
then hastened to conclude that appellant is indeed guilty. The court in effect rendered a
judgment of conviction based, not on the strength of the prosecution's evidence, but on
the weakness of that of the defense, which is totally repugnant to the elementary and
time-honored rule that conviction should be made on the basis of strong, clear and
compelling evidence of the prosecution. 54
IV. The main defense proffered by appellant is that he and complainant were
sweethearts. While the "sweetheart theory" does not often gain favor with this Court,
such is not always the case if the hard fact is that the accused and the supposed victim
are, in truth, intimately related except that, as is usual in most cases, either the
relationship is illicit or the victim's parents are against it. It is not improbable that in some
instances, when the relationship is uncovered, the alleged victim or her parents for that
matter would rather take the risk of instituting a criminal action in the hope that the court
would take the cudgels for them than for the woman to admit to her own acts of
indiscretion. And this, as the records reveal, is precisely what happened to appellant.
Appellant's claim that he and complainant were lovers is fortified by the highly credible
testimonies of several witnesses for the defense, viz.:
1. Filomena Pielago testified that on the night of January 21, 1994, she saw appellant
and complainant sitting on a bench in front of the house where the sexual attack
allegedly took place, and the couple were talking intimately. She had warned Mia about
the latter's illicit affair with appellant.
2. Fernando Rubio, an acquaintance of appellant and owner of the house at Edward's
Subdivision, testified that he asked Mia why she decided to have an affair with appellant
who is a married man. Mia answered that she really loves him. 55 He heard her call
appellant "Papa". 56 The couple looked happy and were sweet to each other. 57
3. Benedicto Rubio, the younger brother of Fernando, testified on redirect examination
that he asked Mia if she knew what she getting into and she answered, "Yes;" then he
asked her if she really loved Sir Godoy, and she again answered in the affirmative.
When he was trying to give counsel to appellant, complainant announced that if
appellant left her, she would commit suicide. 58 He could see that the couple were happy
together. 59
4. Isagani Virey, who knew appellant because the Municipal Engineering Office where
he worked was located within the premises of PNS, attested that he was able to talk to
the couple and that when he was advising appellant that what he was doing is wrong
because he is married and Mia is his student, complainant reacted by saying that no

matter what happened she would not leave Godoy, and that if she went home her father
would kill her. 60 He also observed that they were happy. 61
5. Erna Baradero, a co-teacher of appellant, saw the couple the day before the alleged
rape incident, inside one of the classrooms and they were holding hands, and she heard
Mia tell appellant, "Mahal na mahal kita Sir, iwanan mo ang iyong asawa at tatakas
tayo." 62 She tried to dissuade complainant from continuing with her relationship with
appellant. 63
The positive allegations of appellant that he was having an intimate relationship with
complainant, which were substantially corroborated by several witnesses, were never
successfully confuted. The rebuttal testimony of complainant merely consisted of bare,
unexplained denials of the positive, definite, consistent and detailed assertions of
appellant. 64 Mere denials are self-serving negative evidence. They cannot obtain
evidentiary weight greater than the declarations of credible disinterested witnesses. 65
Besides, appellant recounted certain facts that only he could have supplied. They were
replete with details which could have been known only to him, thereby lending credence
and reliability thereto. 66 His assertions are more logical, probable and bear the
earmarks of truth. This is not to say that the testimony of appellant should be accorded
full credence. His self-interest must have colored his account, even on the assumption
that he could be trusted to stick to the literal truth. Nonetheless, there is much in his
version that does not strain the limits of credulity. More to the point, there is enough to
raise doubts that do appear to have some basis in reality. 67
Thus, the trial court's hasty pontification that appellant's testimony is improbable,
ridiculous, nonsensical and incredible is highly uncalled for. The rule of falsus in uno,
falsus in omnibus is not mandatory. It is not a positive rule of law and is not an inflexible
one. 68 It does not apply where there is sufficient corroboration on many grounds of the
testimony and the supposed inconsistencies arise merely from a desire of the witness to
exculpate himself although not completely. 69
Complainant's denial that she and appellant were lovers is belied by the evidence
presented by the defense, the most telling of which are her two handwritten letters,
Exhibits "1" and "2", which she sent to the latter while he was detained at the provincial
jail. For analysis and emphasis, said letters are herein quoted in full:
27 Feb. 94
Dane,
Kumusta kana? Kong ako hito hindi na makatiis sa sakit.

Sir, sumulat ako sa inyo dahil gusto kong malaman mo ang situation ko.
Sir, kong mahal mo ako gagawa kang paraan na mailayo ako dito sa
bahay. nalaman ng nanay at tatay ko na delayed ang mens ko ng one
week. pinapainom nila ako ng pampalaglag pero ayaw ko. pagnalaman
nila na hindi ko ininom ang gamot sinasaktan nila ako.
Sir, kong maari ay huwag ng maabutan ng Martes. dahil naabutan nila
akong maglayas sana ako. kaya ngayon hindi ako makalabas ng bahay
kong wala akong kasama, kong gaano sila kahigpit noon doble pa
ngayon. ang mga gamit ko ngayon ay wala sa lalagyan ko. tinago nila
hindi ko makita, ang narito lang ay ang bihisan kong luma. Sir kong
manghiram ka kaya ng motor na gagamitin sa pagkuha sa akin. Sa lunes
ng gabi manonood kami Ng Veta eksakto alas 9:00 ay dapat dito ka sa
lugar na may Veta. tanungin mo lang kay Lorna kong saan ang Veta nila
Navoor Lozot. Mag busina ka lang ng tatlo bilang senyas na lalabas na
ako at huwag kang tatapat ng bahay dahil nandoon ang kuya ko. kong
ano ang disisyon mo maari bang magsulat ka at ipahatid kay Lorna.
alang-alang sa bata. Baka makainon ako ng gamot dahil baka pagkain ko
hahaluan nila.
Please sir . . .
(Sgd.)
Mia
Taha 70
3/1/94
Dane,
I'm sorry kong problem ang ipinadala o sinulat sa iyo sa halip sa
kasiyahan. oo nag usap na tayo nagawa ko lang naman ang sumulat sa
iyo dahil naiinis na ako sa pagmumukha ng mga magulang kong
suwapang. Ang paglayas ko sana ay dahil sa narinig ko. Sir narinig ko na
magreklamo si nanay kay Arquero yong superentende sa Palawan high
tapos ang sabi ay magreklamo itong si Arquero sa DECS para matanggal
ka sa pagtuturo yan ang dahilan kong bakit naisipan kong lumayas ng
wala sa oras at wala akong tensyon na masama laban so iyo. hindi ko
sinabi sa kanila na delayed ako ay sinabi sa iyo ni Eden na sa harap niya
mismo binigyan ako ng gamot samantalang noong Sabado ng gabi lang
nalaman dahil gusto kong masuka. Oo aaminin ko nagkasala ako sa iyo,
pinabilanggo kita dahil nagpanig ako sa mga magulang ko nadala nila ako

sa sulsul nila. hindi ko naipaglaban ang dapat kong ipaglaban ngunit kong
iniisip mong minahal lang kita dahil sa may kailangan lang ako sa iyo
nagkakamali ka. alam ng Diyos na hindi ganon ang hangarin ko sa iyo.
higit pa sa binilanggo ang kalagayan ko kong alam mo. kinukunsinsiya,
nagtitiis na saktan at pagsasakripisyo ng damdamin ko na gusto kang
makita at yakapin ka pero ano ang magagawa ko kong ang paglabas ko
ng bahay ay hindi ako makalabas ng mag isa may guardiya pa. tanungin
mo si Lorna kong ano ginagawa nilang pagbantay sa akin para akong
puganti. hindi ito ayon sa kagustuhan ng mga magulang ko sarili kong
plano ito. Magtitiis pa ba akong hindi makakain maghapon tubig lang ang
laman ng tiyan, kong may masama akong hangarin sa iyo.
Oo, magtiis ako para maipakita kong mahal rin kita. March 2 darating ako
sa bahay na sinasabi mo. hindi ko matiyak kong anong oras dahil kukuha
pa ako ng tiyempo na wala rito ang tatay ko. Alam mo bang pati ang
kapatid kong si Rowena ay inuutusan akong lumayas dahil naawa no siya
sa situation ko. siya lang ang kakampi ko rito sa bahay malaki ang pagasa kong makalabas ako ng bahay sa tulong niya.
Love
you
(Sgd.)
Mia
Taha 71
There is absolutely nothing left to the imagination. The letters eloquently speak for
themselves. It was complainant's handwriting which spilled the beans, so to speak.
Aside from appellant, two other defense witnesses identified the handwriting on the
letters as belonging to Mia Taha. They are Filomena Pielago and Erna Baradero who
were admittedly the former teachers of complainant and highly familiar with her
handwriting. The greatest blunder committed by the trial court was in ignoring the
testimonies of these qualified witnesses and refusing to give any probative value to
these two vital pieces of evidence, on the dubious and lame pretext that no handwriting
expert was presented to analyze and evaluate the same.
Well-entrenched by now is the rule that resort to questioned document examiners, more
familiarly called handwriting experts, is not mandatory. Handwriting experts, while
probably useful, are not indispensable in examining or comparing handwriting. 72 This is
so since under Section 22, Rule 132 of the Rules of Court, the handwriting of a person
may be proved by any witness who believes it to be the handwriting of such person,
because he has seen the person write, or has seen writing purporting to be his upon
which the witness has acted or been charged, and has thus acquired knowledge of the

handwriting of such person. The said section further provides that evidence respecting
the handwriting may also be given by a comparison, made by the witness or the court,
with writings admitted or treated as genuine by the party against whom the evidence is
offered or proved to be genuine to the satisfaction of the judge. 73
The defense witnesses were able to identify complainant's handwriting on the basis of
the examination papers submitted to them by her in their respective subjects. This Court
has likewise carefully examined and compared the handwriting on the letters with the
standard writing appearing on the test papers as specimens for comparison and,
contrary to the observations and conclusions of the lower court, we are convinced
beyond doubt that they were written by one and the same person. More importantly,
complainant herself categorically admitted that the handwriting on the questioned letters
belongs to her.
It is, therefore, extremely disconcerting, to say the least, why the trial court again chose
to turn a deaf ear to this conclusive portion of complainant's testimony:
ATTY. EBOL:
Q Did I get you right on rebuttal that Mrs. Erna Baradero and
Filomena Pielago were your teachers?
A Yes, sir.
Q And they have been your teachers for several months
before this incident of January 21, 1994, am I not correct?
A That is true, sir.
Q And you have (sic) during these past months that they
have been your teachers you took examinations in their
classes in their particular subject(s)?
A Yes, sir.
Q And some of those test papers are in the possession of
your teachers, am I correct?
A Yes, sir.
Q I will show you Exhibit "4" previously marked as Exhibit
"4", it appears to be your test paper and with your signature
and the alphabet appears in this exhibit appears to be that of

Mia Taha, please examine this and tell the Honorable Court
if that is your test paper?
A Yes, sir.
Q That signature Mia Taha I understand is also your
signature?
A Yes, sir.
Q I will show you Exhibit "4-A", will you please examine this
Exhibit "4-A" and tell this Honorable Court if you are familiar
with that.
A What subject is that?
Q I am just asking you whether you are familiar with that.
A I cannot remember if I have this kind of subject, sir.
Q How about this signature Mia Taha, are you not familiar
with that signature?
A That is min(e), sir.
Q I will show you Exhibit "4-C" which appears to be that in
Math, are you familiar with that signature?
A Yes, sir.
Q That is your signature?
A Yes, sir.
Q In fact, these letters in alphabet here are in your own
handwriting?
A Yes, sir.
xxx xxx xxx
Q You will deny this Exhibit "1" your signature?
xxx xxx xxx

Q You will deny that this is your handwriting?

A That is my handwriting, sir.
Q Also Exhibit "2"?
A Yes, sir. 74
While rebuttal witness Lorna Casantosan insisted that she never delivered any letter of
complainant to herein appellant, the witness presented by the defense on sur-rebuttal,
Armando Pasion, who was the guard on duty at the provincial jail at that time, testified
of his own accord because he knew that what Casantosan said was a blatant lie.
Appellant never talked to Amando Pasion nor requested him to testify for the defense,
as related by the witness himself. Hence, there exists no reason whatsoever to
disbelieve the testimony of witness Pasion to the effect that Lorna Casantosan actually
went to visit appellant in jail and in truth handed to him what turned out to be the letters
marked as Exhibits "1" and "2" for the defense.
V. The prosecution insists that the offer of compromise made by appellant is deemed to
be an admission of guilt. This inference does not arise in the instant case. In criminal
cases, an offer of compromise is generally admissible as evidence against the party
making it. It is a legal maxim, which assuredly constitutes one of the bases of the right
to penalize, that in the matter of public crimes which directly affect the public interest, no
compromise whatever may be entered into as regards the penal action. It has long been
held, however, that in such cases the accused is permitted to show that the offer was
not made under a consciousness of guilt, but merely to avoid the inconvenience of
imprisonment or for some other reason which would justify a claim by the accused that
the offer to compromise was not in truth an admission of his guilt or an attempt to avoid
the legal consequences which would ordinarily ensue therefrom. 75
A primary consideration here is that the evidence for the defense overwhelmingly
proves appellant's innocence of the offense charged. Further, the supposed offer of
marriage did not come from appellant but was actually suggested by a certain Naem,
who is an imam or Muslim leader and who likewise informed appellant that he could be
converted into a Muslim so he could marry complainant. As a matter of fact, when said
offer was first made to appellant, he declined because of the fact that he was already
married. On top of these, appellant did not know, not until the trial proper, that his
mother actually paid P30,000.00 for the settlement of these cases. Complainant's own
mother, Helen Taha, testified that present during the negotiations were herself, her
husband, Mia, and appellant's mother. Appellant himself was never present in any of
said meetings. 76

It has been held that where the accused was not present at the time the offer for
monetary consideration was made, such offer of compromise would not save the day for
the prosecution. 77 In another case, this Court ruled that no implied admission can be
drawn from the efforts to arrive at a settlement outside the court, where the accused did
not take part in any of the negotiations and the effort to settle the case was in
accordance with the established tribal customs, that is, Muslim practices and traditions,
in an effort to prevent further deterioration of the relations between the parties. 78
VI. Generally, an affidavit of desistance by the complainant is not looked upon with
favor. It may, however, create serious doubts as to the liability of appellant, especially if
it corroborates appellant's explanation about the filing of criminal charges. 79
In the cases at bar, the letters written by complainant to appellant are very revealing.
Most probably written out of desperation and exasperation with the way she was being
treated by her parents, complainant threw all caution to the winds when she wrote: "Oo,
aaminin ko nagkasala ako sa iyo, pinabilanggo kita dahil nagpanig ako sa mga
magulang ko nadala nila ako sa sulsul nila, hindi ko naipaglaban ang dapat kong
ipaglaban," obviously referring to her ineptitude and impotence in helping appellant out
of his predicament. It could, therefore, be safely presumed that the rape charge was
merely an offshoot of the discovery by her parents of the intimate relationship between
her and appellant. In order to avoid retribution from her parents, together with the moral
pressure exerted upon her by her mother, she was forced to concoct her account of the
alleged rape.
The Court takes judicial cognizance of the fact that in rural areas in the Philippines,
young ladies are strictly required to act with circumspection and prudence. Great
caution is observed so that their reputations shall remain untainted. Any breath of
scandal which brings dishonor to their character humiliates their entire families. 80 It
could precisely be that complainant's mother wanted to save face in the community
where everybody knows everybody else, and in an effort to conceal her daughter's
indiscretion and escape the wagging tongues of their small rural community, she had to
weave the scenario of this rape drama.
Although the trial court did observe that a mother would not sacrifice her daughter to tell
a story of defloration, that is not always the case as this Court has noted a long time
ago. The books disclose too many instances of false charges of rape. 81 While this Court
has, in numerous cases, affirmed the judgments of conviction rendered by trial courts in
rape charges, especially where the offended parties were very young and presumptively
had no ill motives to concoct a story just to secure indictments for a crime as grave as
rape, the Court has likewise reversed judgments of conviction and acquitted the
accused when there are strong indications pointing to the possibility that the rape
charges were merely motivated by some factors except the truth as to their
commission. 82 This is a case in point. The Court, therefore, cannot abdicate its duty to

declare that the prosecution has failed to meet the exacting test of moral certainty and
proof of guilt of appellant beyond reasonable doubt.
This is not to say that the Court approves of the conduct of appellant. Indisputably, he
took advantage of complainant's feelings for him and breached his vow of fidelity to his
wife. As her teacher, he should have acted as adviser and counselor to complainant and
helped her develop in manners and virtue instead of corrupting her. 83 Hence, even as he
is freed from physical detention in a prison as an instrument of human justice, he
remains in the spiritual confinement of his conscience as a measure of divine
retribution. Additionally, these ruminations do not rule out such other legal options
against him as may be available in the arsenal of statutory law.
VII. The trial court, in holding for conviction, relied on the presumptio hominis that a
young Filipina will not charge a person with rape if it is not true. In the process, however,
it totally disregarded the more paramount constitutional presumption that an accused is
deemed innocent until proven otherwise.
It frequently happens that in a particular case two or more presumptions are involved.
Sometimes the presumptions conflict, one tending to demonstrate the guilt of the
accused and the other his innocence. In such case, it is necessary to examine the basis
for each presumption and determine what logical or social basis exists for each
presumption, and then determine which should be regarded as the more important and
entitled to prevail over the other. It must, however, be remembered that the existence of
a presumption indicating guilt does not in itself destroy the presumption against
innocence unless the inculpating presumption, together with all of the evidence, or the
lack of any evidence or explanation, is sufficient to overcome the presumption of
innocence by proving the defendant's guilt beyond a reasonable doubt. Until the
defendant's guilt is shown in this manner, the presumption of innocence continues. 84
The rationale for the presumption of guilt in rape cases has been explained in this wise:
In rape cases especially, much credence is accorded the testimony of the
complaining witness, on the theory that she will not choose to accuse her
attacker at all and subject herself to the stigma and indignities her
accusation will entail unless she is telling the truth. The rape victim who
decides to speak up exposes herself as a woman whose virtue has been
not only violated but also irreparably sullied. In the eyes of a narrowminded society, she becomes a cheapened woman, never mind that she
did not submit to her humiliation and has in fact denounced her assailant.
At the trial, she will be the object of lascivious curiosity. People will want to
be titillated by the intimate details of her violation. She will squirm through
her testimony as she describes how her honor was defiled, relating every
embarrassing movement of the intrusion upon the most private parts of

her body. Most frequently, the defense will argue that she was not forced
to submit but freely conjoined in the sexual act. Her motives will be
impugned. Her chastity will be challenged and maligned. Whatever the
outcome of the case, she will remain a tainted woman, a pariah because
her purity has been lost, albeit through no fault of hers. This is why many a
rape victim chooses instead to keep quiet, suppressing her helpless
indignation rather than denouncing her attacker. This is also the reason
why, if a woman decides instead to come out openly and point to her
assailant,
courts
are prone to believe that she is telling the truth regardless of its
consequences. . . . 85
The presumption of innocence, on the other hand, is founded upon the first principles of
justice, and is not a mere form but a substantial part of the law. It is not overcome by
mere suspicion or conjecture; a probability that the defendant committed the crime; nor
by the fact that he had the opportunity to do so. 86 Its purpose is to balance the scales in
what would otherwise be an uneven contest between the lone individual pitted against
the People and all the resources at their command. Its inexorable mandate is that, for all
the authority and influence of the prosecution, the accused must be acquitted and set
free if his guilt cannot be proved beyond the whisper of a doubt. 87 This is in consonance
with the rule that conflicts in evidence must be resolved upon the theory of innocence
rather than upon a theory of guilt when it is possible to do so. 88
On the basis of the foregoing doctrinal tenets and principles, and in conjunction with the
overwhelming evidence in favor of herein appellant, we do not encounter any difficulty in
concluding that the constitutional presumption on the innocence of an accused must
prevail in this particular indictment.
B. The Kidnapping/Illegal Detention Case
It is basic that for kidnapping to exist, there must be indubitable proof that the actual
intent of the malefactor was to deprive the offended party of her liberty. 89 In the present
charge for that crime, such intent has not at all been established by the prosecution.
Prescinding from the fact that the Taha spouses desisted from pursuing this charge
which they themselves instituted, several grave and irreconcilable inconsistencies
bedevil the prosecution's evidence thereon and cast serious doubts on the guilt of
appellant, as hereunder explained:
To recall, complainant testified that appellant by himself went to fetch her at her parents'
house the day after the alleged rape incident. In her own words, appellant courteously
asked her parents to permit her to help him solicit contributions for her candidacy. When
they left the house, appellant walked ahead of her, obviously with her parents and their
neighbors witnessing their departure. It is difficult to comprehend how one could deduce

from these normal and innocuous arrangement any felonious intent of appellant to
deprive complainant of her liberty. One will look in vain for a case where a kidnapping
was committed under such inauspicious circumstances as described by complainant.
Appellant declared that when they left the house of the Taha family, complainant was
bringing with her a plastic bag which later turned out to contain her clothes. This bag
was left behind by Mia at Edward's Subdivision, as hereinbefore noted, and was later
delivered to appellant by Benedicto Rubio. Again, we cannot conceive of a ridiculous
situation where the kidnap victim was first allowed to prepare and pack her clothes, as if
she was merely leaving for a pleasant sojourn with the criminal, all these with the
knowledge and consent of her parents who passively looked on without comment.
Complainant alleged that appellant always kept her locked inside the room which they
occupied, whether at Sunset Garden or at Edward's Subdivision, and that she could not
unlock the door from the inside. We must, however, recall that when she was asked on
cross-examination about the kind of lock that was used, she pointed to the doorknob of
the courtroom. The court then ordered that the door of the courtroom be locked and
then asked complainant to open it from the inside. She was easily able to do so and, in
fact, she admitted that the two locks in the room at Sunset Garden could also be
opened from the inside in the same manner. This demonstrably undeniable fact was
never assailed by the prosecution. It also failed to rebut the testimony of Fernando
Rubio that the room which was occupied by the couple at Edward's Subdivision could
not even be locked because the lock thereof was broken.
When the couple transferred to Edward's Subdivision, they walked along the national
highway in broad daylight. Complainant, therefore, had more than ample opportunity to
seek the help of other people and free herself from appellant if it were true that she was
forcibly kidnapped and abused by the latter. 90 In fact, several opportunities to do so had
presented themselves from the time they left complainant's home and during their
extended stay in the hotel and in the lodging house.
According to appellant, he went to see the parents of complainant the day after they
went to Sunset Garden to inform them that Mia spent the night in said place. This was
neither denied nor impugned by Helen Taha, her husband, or any other person. On the
other hand, the allegation of Helen Taha that she made a report to the police about her
missing daughter was not supported by any corroborative evidence, such as the police
blotter, nor was the police officer to whom she allegedly reported the incident ever
identified or presented in court.
We agree with appellant's contention that the prosecution failed to prove any motive on
his part for the commission of the crime charged. In one case, this Court rejected the
kidnapping charge where there was not the slightest hint of a motive for the crime. 91 It is
true that, as a rule, the motive of the accused in a criminal case is immaterial and, not

being an element of a crime, it does not have to be proved. 92 Where, however, the
evidence is weak, without any motive being disclosed by the evidence, the guilt of the
accused becomes open to a reasonable doubt and, hence, an acquittal is in
order. 93 Nowhere in the testimony of either the complainant or her mother can any ill
motive of a criminal nature be reasonably drawn. What actually transpired was an
elopement or a lovers' tryst, immoral though it may be.
As a closing note, we are bewildered by the trial court's refusal to admit in evidence the
bag of clothes belonging to complainant which was presented and duly identified by the
defense, on its announced supposition that the clothes could have easily been bought
from a department store. Such preposterous reasoning founded on a mere surmise or
speculation, aside from the fact that on rebuttal the prosecution did not even seek to
elicit an explanation or clarification from complainant about said clothes, strengthens
and reinforces our impression of an apparently whimsical exercise of discretion by the
court below. Matters which could have been easily verified were thus cavalierly
dismissed and supplanted by a conjecture, and on such inferential basis a conclusion
was then drawn by said court.
We accordingly deem it necessary to reiterate an early and highly regarded disquisition
of this Court against the practice of excluding evidence in the erroneous manner
adopted by the trial court:
It has been observed that justice is most effectively and expeditiously
administered where trivial objections to the admission of proof are
received with least favor. The practice of excluding evidence on doubtful
objections to its materiality or technical objections to the form of the
questions should be avoided. In a case of any intricacy it is impossible for
a judge of first instance, in the early stages of the development of the
proof, to know with any certainty whether the testimony is relevant or not;
and where there is no indication of bad faith on the part of the attorney
offering the evidence, the court may as a rule safely accept the testimony
upon the statement of the attorney that the proof offered will be connected
later. Moreover, it must be remembered that in the heat of the battle over
which he presides, a judge of first instance may possibly fall into error in
judging the relevancy of proof where a fair and logical connection is in fact
shown. When such a mistake is made and the proof is erroneously ruled
out, the Supreme Court, upon appeal, often finds itself embarrassed and
possibly unable to correct the effects of the error without returning the
case for a new trial, a step which this court is always very loath to take. On
the other hand, the admission of proof in a court of first instance, even if
the question as to its form, materiality, or relevancy is doubtful, can never
result in much harm to either litigant, because the trial judge is supposed
to know the law and it is its duty, upon final consideration of the case, to

distinguish the relevant and material from the irrelevant and immaterial. If
this course is followed and the cause is prosecuted to the Supreme Court
upon appeal, this court then has all the materials before it necessary to
make a correct judgment. 94
At any rate, despite that procedural lapse, we find in the records of these cases
sufficient and substantial evidence which warrant and demand the acquittal of
appellant. Apropos thereto, we take this opportunity to repeat this age-old observation
and experience of mankind on the penological and societal effect of capital punishment:
If it is justified, it serves as a deterrent; if injudiciously imposed, it generates resentment.
Finally, we are constrained to reiterate here that Republic Act No. 7659 which
reimposed the death penalty on certain heinous crimes took effect on December 31,
1993, that is, fifteen days after its publication in the December 16, 1993 issues of the
Manila Bulletin, Philippine Star, Malaya and Philippine Times Journal, 95 and not on
January 1, 1994 as is sometimes misinterpreted.
WHEREFORE, the judgment appealed from is hereby REVERSED and SET ASIDE,
and accused-appellant Danny Godoy is hereby ACQUITTED of the crimes of rape and
kidnapping with serious illegal detention charged in Criminal Cases Nos. 11640 and
11641 of the Regional Trial Court for Palawan and Puerto Princesa City, Branch 49. It is
hereby ORDERED that he be released forthwith, unless he is otherwise detained for
any other valid cause.
SO ORDERED.
THIRD DIVISION
[G.R. No. 117217. December 2, 1996]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GENER DE GUZMAN y
SICO, accused-appellant.
DECISION
DAVIDE, JR., J.:
On 1 April 1992, complainant Gilda Ambray filed with the Municipal Trial Court (MTC)
of Bacoor, Cavite, a complaint[1] charging accused Gener de Guzman y Sico with the
crime of rape allegedly committed at 9:00 p.m. of 31 March 1992 in Meadow
Wood, Executive Village, Barangay Panapaan, Bacoor, Cavite. On even date, Gener de
Guzman was arrested and detained at the Municipal Jail of Bacoor, Cavite, but was
released on 14 April 1992 upon the filing and approval of his bail bond. [2]

Gener de Guzman did not submit any counter-affidavit as required in

the subpoena[3] issued by the MTC on 14 April 1992. Finding a prima facie case against
him on the basis of the evidence for the prosecution, the MTC forwarded the record of
the case to the Office of the Provincial Prosecutor for the filing of the necessary
information with the appropriate court.[4]
On 14 July 1992, the Office of the Provincial Prosecutor of Cavite filed with the
Regional Trial Court (RTC) of Bacoor, Cavite, Branch 19, an information[5] charging
accused Gener de Guzman with the crime of rape, allegedly committed as follows:
That on or about the 31st day of March 1992 at around 9:00 oclock in the evening at
Meadow Wood Subd., Executive Village, Barangay Panapaan, Municipality of Bacoor,
Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with lewd design, by means of force, violence and intimidation,
did, then and there, wilfully, unlawfully and feloniously, have carnal knowledge of one
Gilda B. Ambray, against her will and consent, to the damage and prejudice of said
Gilda B. Ambray.
Contrary to law.
The case was docketed as Criminal Case No. B-92-216.
Upon arraignment on 10 August 1992, accused Gener de Guzman entered a plea of
not guilty.[6] Trial on the merits thereafter ensued and the prosecution moved for the
cancellation of the bail bond.
On 9 December 1992, after complainant Gilda Ambray, Police Officer Efren Bautista,
and Dr. Valentin Bernales of the National Bureau of Investigation (NBI), completed their
testimony as witnesses for the prosecution, the trial court cancelled the bail bond of
Gener de Guzman on the ground that the evidence of his guilt was strong. [7] He was rearrested, and on 22 January 1993, his motion for reconsideration [8] of the order
cancelling his bail bond was denied by the trial court for lack of merit as he was charged
with a capital offense punishable by reclusion perpetua and the evidence of his guilt
was strong.[9]
Two other witnesses were presented by the prosecution, namely: Resurreccion Talub
Quiocho, a kumadre of the accused, and Aquilino Flores Ambray, the husband of the
complainant.
The testimonies of the witnesses for the prosecution established the following facts:
Homeward bound on 31 March 1992 from Anson Department Store where
she worked as a sales clerk, complainant Gilda Ambray, the 32-year old wife of
Aquilino Flores Ambray and a mother of two children, was at the gate of
Meadow Wood Subdivision, Panapaan, Bacoor, Cavite, at about 8:45 p.m.
waiting for a tricycle ride toward her residence. She waited for about ten

minutes. When she noticed the accused, then wearing army pants, sitting at the
guardhouse, she approached him and asked him some questions. He
answered in a stammering manner. The complainant recognized the accused
very well because it was summertime and the gate of the subdivision was welllit.[10]
After Gilda started to walk, the accused mounted his tricycle, followed her and offered
her a ride, to which she agreed. While on board the tricycle, Gilda noticed that the
accused took a different route. She got scared but managed not to show it. The
accused would once in a while stop the tricycle and tell her that it was not in good
condition.[11] When they reached Phase II of the same subdivision near an unfinished
house, the accused stopped and told Gilda to push the tricycle. She alighted from the
tricycle and paid him P5.00, which he did not accept. Gilda then walked away, but after
she had taken about ten steps, the accused embraced her from behind, covered her
mouth and held her neck tightly. She tried to shout but the accused threatened her. The
accused then dragged her to a vacant lot ten meters away from the unfinished
house. She attempted to shout again, but he threatened to kill her if she made
noise. She fought to free herself from his hold, but the accused pushed and slapped
her. He tried to raise her T-shirt while holding her neck tightly. He shouted and
commanded her to raise her T-shirt, which she obligingly followed because of fear. He
removed her bra and kissed her breast. She shouted Saklolo! Tulungan ninyo ako, but
the accused covered her mouth and again held her neck that she could hardly
breathe. He held her hand tightly and positioned himself on top of her. He unzipped her
pants and pulled it down her knees. She struggled to liberate herself, but to no
avail. The accused then tried to insert his penis into her, but failed to do so because she
struggled and fought back, then slapped him while covering her vagina with her hand.
When she tried to stand, he pushed her down and, in the process, was able to
completely pull down her pants and underwear. She pleaded to him to have mercy on
her and told him that she had two children. He warned her: Huwag kang sisigaw,
papatayin kita. The accused again tried to insert his penis into her, but she prevented
him from doing so. The accused took her hand and let her hold his penis to make it
stiff. As Gilda became too weak to struggle against the accuseds sexual advances, the
accused was able to finally consummate his dastardly desire. He then pulled out his
penis and fingered her private organ for a short while. The accused then warned Gilda
not to tell anybody, otherwise, he would kill her and all members of her family. [12] He told
her that she was his third victim but the two did not complain. He then dressed up. Gilda
picked up her pants and underwear and hurriedly ran toward her home, without looking
back.[13]
When Gilda arrived home, she told her mother and her husband, Aquilino Flores
Ambray, that she was raped by the accused. Aquilino got angry and wanted to retaliate
but was prevailed upon not to by Gildas mother.[14]

At almost midnight of 31 March 1992, Gilda and her mother reported the incident to one
Tony Antonio, the President of the Homeowners Association and President of the
National Press Club. Antonio radioed the Bacoor Police Station to send an
investigator. PO3 Efren Bautista and Sgt. Saguisame responded to the alarm
immediately. Upon their arrival at the house of Antonio, PO3 Bautista saw Gilda with her
mother. Gilda, who was crying, related to PO3 Bautista that she was raped and
described to him her assailant as a tricycle driver, tall, strong, with curly hair and in army
cut.[15] Gilda also gave PO3 Bautista a vivid description of the accuseds tricycle, viz.,
blue in color with the name Dimple at the back. [16] The policemen left and went to the
house of the accused. PO3 Bautista invited the accused to go with him because the
Mayor wanted to talk to him. The accused, together with P03 Bautista, went to the
residence of Antonio. When the accused entered the house of Antonio, Gilda Ambray
cried hysterically while pointing to the accused as her rapist. The accused was then
brought to the municipal jail.[17]
Gilda Ambray was medically examined at the Las Pias Hospital and issued a medical
certificate.[18] She then proceeded to the NBI for a medico-legal examination. Dr.
Valentin Bernales, a medico-legal officer of the NBI, conducted the examination on
Gilda. His findings, contained in his medico-legal report, [19] were as follows:
I. Physical Injuries:
Abrasion, brownish; lips, upper, left side, mucosal, 2.0 x 1.5 cm.; elbow, right, posterolateral aspect, 2.0 x 1.5 cm. and postero-medial aspect, multi-linear, with brown scab
formation, 3.0 x 1.0 cm. Contusion, reddish; back, right, scapular area, 7.0 x 5 .0 cm.
and left, 15.0 x 8.0 cm. Contused abrasion, reddish black, scapular area, left, medial
aspect, 3.0 x 2.0 cm.
II. Genital Examination:
Pubic hair, fully grown, moderate. Labia majora, gaping. Labia minora, coaptated.
Fourchette, lax. Vestibulae, pinkish, smooth. Hymen, reduced to carunculae myrtiformis.
Vaginal orifice, admits a tube, 3.0 cm. in diameter. Vaginal wall, lax. Rugosities,
obliterated.
III. Conclusions:
1. The above physical injuries were noted on the body of the subject at the time
of the examination.
2. Medical evidence indicative of recent sexual intercourse with man on or
about the alleged date of examination.
IV. Remarks:

Laboratory Report S-92-94 [20] shows positive result for the presence of human
spermatozoa.
Dr. Bernales opined that the physical injuries sustained by Gilda Ambray resulted
from force applied to her,[21] while the presence of human spermatozoa in Gildas
genitals indicated recent sexual intercourse.[22]
On 3 April 1992, Bebey and Linda de Guzman, the parents of the accused, asked the
help of Resurreccion Talub Quiocho, the accuseds kumadre, to beg for Gildas
forgiveness for the accuseds sake. The following day, Resurreccion accompanied the
accuseds parents, wife, children and sister-in-law to Gildas house. [23] Gilda met them,
but to their plea for forgiveness, she told them that should not be tolerated. [24]
Gilda further testified that she suffered moral damages, had to resign from her job
due to shame, and had spent P28,500.00 for attorneys fees.[25]
Gener de Guzman interposed the defense of alibi and presented Alfredo Fernandez
and Teotimo Camagong as his witnesses.
According to Gener de Guzman, on 31 March 1992 at around 9:00 p.m., he was
about to go home and was at the corner of Meadow Wood Subdivision coming from
Justineville Subdivision. On his way home on his tricycle, he saw Gilda Ambray, who
flagged him down and boarded his tricycle. After traveling about half a kilometer, his
tricycle malfunctioned. He told her that she better walk home because her house was
already near. He pushed his tricycle home, and on his way, one Alfredo Fernandez
approached him and inquired what was wrong with his tricycle. Alfredo helped him push
the tricycle towards his (accuseds) home, and upon arrival thereat, he told Alfredo not to
leave at once. At around 9:10 p.m., they started to drink liquor until 11:00 p.m., and after
their drinking spree, he cleaned their mess and slept. Then at around 12:50 a.m. of 1
April 1992, PO3 Efren Bautista fetched and apprised him that he was accused of rape
by a certain Gilda Ambray. Thereafter, an investigation was conducted and he was
brought to the Bacoor Police Station.
Alfredo L. Fernandez, 37 years old, jobless, and a resident of Justineville Subdivision,
corroborated Geners story about the malfunctioning tricycle and the drinking session. [26]
Teotimo Camagong testified that he was present when the accused was investigated
at the residence of Tony Antonio and that the complainant did not pinpoint and identify
the accused as her alleged molester.[27]
In its Decision[28] dated 30 June 1994 and promulgated on 25 July 1994, the trial court
found the accused guilty beyond reasonable doubt of the crime of rape as charged, and
rendered judgment as follows:
WHEREFORE, premises considered herein accused GENER SICO DE GUZMAN is
hereby found GUILTY beyond reasonable doubt of the crime of rape punishable by Art.

335 of the Revised Penal Code.He should suffer the prison term of reclusion
perpetua and indemnify herein private complainant Gilda Ambray the following: actual
damages representing her lost monthly salary when she resigned from her office due to
shame for being a rape victim, in the sum of P30,000.00, moral damages in the sum
of P30,000.00, exemplary damages of P10,000.00, litigation expenses of P5,000.00,
and attorneys fee[s] including appearance fees for the private prosecutor in the sum
of P28,500.00.
It gave full gave weight to the testimony of Gilda Ambray because [w]ithout doubt, the
complainant had endured the rigors of recalling her harrowing ordeal and had vividly,
credibly and candidly portrayed in detail how she was raped by the accused. [29]
As to whether sexual intercourse was consummated against the will or consent of the
offended party, the trial court said:
No less than NBI Medico Legal Officer Dr. Valentin Bernales had corroborated
the stance of herein private complainant that she was raped by the accused.
The victim had sustained contusions and abrasions at her body that indicated
that she struggled against the sexual advances of the accused. As a result of
the doctors examination on the victim, he confirmed the occurrence of a recent
sexual intercourse and presence in her private part of human spermatozoa as
denoted in his Medico Legal Report (Exh. F) and Laboratory Report (Exh. D). [30]
Likewise it ruled that since the accused was drunk, he was more aggressive and
sexually capable.[31] Finally, it considered as evidence of the accuseds guilt the plea of
his parents, wife and relatives for forgiveness and compromise. [32]
The accused seasonably appealed from the trial courts judgment of conviction, and in
urging us to acquit him, interposes the following assignment of errors in his Appellants
Brief:
1. THE COURT ERRED IN FINDING THAT ACCUSED HAS INDUBITABLY
EMPLOYED FORCE AND INTIMIDATION IN THE RAPE OF THE VICTIM.
2. THE COURT ERRED IN FINDING THAT ACCUSED WAS POSITIVELY
IDENTIFIED BY THE VICTIM.
3. THE COURT ERRED IN STRESSING THAT THE ACCUSED WAS DRUNK AT
THE TIME OF THE COMMISSION OF RAPE.
In the Brief for the Appellee, the Office of the Solicitor General disagrees with the
accused and prays that we affirm in toto the appealed decision.
The first and second assigned errors may be taken up together. The upshot of the
accuseds stance in these alleged errors is that he was not positively identified and that

neither force nor intimidation was proven. As to the latter he cites these facts: (a) Gildas
assailant had three acts of sexual intercourse with her; (b) the physical examination
showed that she suffered injuries on the dorsal portion only, and none was found on her
neck; (c) her personal belongings -- bra, pants, T-shirt and underwear -- were
completely intact; and (d) no signs of physical violence were discernible on both the
persons of the accused and Gilda Ambray.
Rape is essentially an offense of secrecy, not generally attempted except in dark or
deserted and secluded places away from prying eyes, and the crime usually
commences solely upon the word of the offended woman herself and conviction
invariably turns upon her credibility, as the Peoples single witness of the actual
occurrence.[33]
In the review of rape cases, therefore, this Court is guided by the following principles:
(1) an accusation for rape can be made with facility: it is difficult to prove but more
difficult for the person accused, though innocent, to disprove it; (2) in view of the
intrinsic nature of the crime of rape where two persons are usually involved, the
testimony of the complainant must be scrutinized with extreme caution; and (3) the
evidence for the prosecution must stand or fall on its on merits, and cannot be allowed
to draw strength from the weakness of the evidence for the defense. [34]
The resolution then of the first two assigned errors and the determination of the guilt
of the accused depend primarily on the credibility of the complainant Gilda Ambray,
since only she and the accused witnessed the incident when it happened. Her testimony
alone, if credible, would render the accuseds conviction inevitable.
A meticulous assessment of Gildas testimony demonstrates beyond doubt the
truthfulness of her story, which she narrated in a categorical, straightforward and candid
manner. Further strengthening her credibility in recounting her ordeal at the hands of the
accused was her conduct immediately after the sexual assault. She ran home without
looking back, and upon her arrival she reported the rape to her husband and her mother
at once. Immediately thereafter, she reported it to Tony Antonio, the President of the
Homeowners Association and President of the National Press Club, who then sought
police assistance. When the policemen arrived at Antonios residence in response to the
latters call, Gilda narrated the rape to the policemen and gave them the description of
the assailant. When the policemen brought the accused to the residence of Antonio,
Gilda forthwith pointed to the accused as the person who raped her. Gilda voluntarily
submitted herself to a medical examination at the Las Pias Hospital and then to an
examination of her private parts by Dr. Bernales of the NBI. The following day she
submitted herself to an investigation [35] by the PNP of Bacoor, Cavite, and filed on the
same day a complaint for rape against the accused with the MTC of Bacoor, Cavite.
All the foregoing acts of Gilda were done within twenty-four hours after the
commission of the crime. The quickness and spontaneity of these deeds manifested the
natural reactions of a virtuous woman who had just undergone sexual molestation
against herself,[36] and evinced nothing more than her instant resolve to denounce the

beast who criminally abused and ravished her, and to protect her honor. Moreover, she
rejected the plea for forgiveness sought by the accuseds parents, wife, and children,
then suffered the travails of a public trial which necessarily exposed her to humiliation
and embarrassment by unraveling the details of the rape and enduring a crossexamination which sought to discredit her.
What Gilda endured could only come from one whose obsession was to bring to
justice the person who had abused her and vindicate her honor, even if such vindication
would never erase from her memory that excruciatingly painful chapter in her life which
left her psychologically and emotionally scarred forever. This Court has repeatedly held
that no complainant would admit that she has been raped, make public the offense,
allow the examination of her private parts, undergo the troubles and humiliation of public
trial and endure the ordeal of testifying to all its gory details if she had not in fact been
raped.[37]
We likewise agree with the trial court that the accused used force and intimidation
upon Gilda.
Another established rule in rape cases is that the force need not be irresistible; all that
is necessary is that the force used by the accused is sufficient to consummate his evil
purpose, or that it was successfully used. It need not be so great or of such character
that it could not be repelled. [38] Intimidation, on the other hand, must be viewed in light of
the victims perception and judgment at the time of the commission of the crime and not
by any hard and fast rule; it is enough that it produces fear -- fear that if the victim does
not yield to the bestial demands of the accused, something would happen to her at that
moment, or even thereafter as when she is threatened with death if she would report the
incident.[39]
In this case, the accused embraced Gilda from behind, held her neck tightly, and
covered her mouth. As she struggled to free herself, she sustained her injuries. Dr.
Bernales confirmed the use of force, and according to him, the abrasions and
contusions on Gildas body were due to force applied on her. Moreover, the accused
also threatened Gilda with death if she would not yield to his bestial desires. The threat
certainly constituted intimidation.
The accuseds contention that it was highly incredible that there was force or
intimidation since the assailant committed three acts of sexual intercourse with Gilda in
three hours, deserves scant consideration. In the first place, Gilda explained in her redirect examination that the three hours mentioned in her cross-examination referred to
the time which elapsed from the moment she was at the gate of Meadow Wood
Subdivision and until she reported the incident to Tony Antonio. [40] The principal object of
re-direct examination is to prevent injustice to the witness and the party who has called
him by affording an opportunity to the witness to explain the testimony given on crossexamination, and to explain any apparent contradiction or inconsistency in his
statements, an opportunity which is ordinarily afforded to him during crossexamination. The re-direct examination serves the purpose of completing the answer of

a witness, or of adding a new matter which has been omitted, or of correcting a possible
misinterpretation of testimony.[41] In the second place, on direct examination, Gilda
categorically declared that the accused tried to thrice insert his penis into her vagina. He
failed in the first and second attempts because she struggled, but succeeded on the
third because she was already weak. While it may be true that on cross-examination
she testified that she was raped once, yet on re-direct examination she said that she
was raped three times, no inconsistency at all may be deduced therefrom. There was
merely confusion as to the legal qualifications of the three separate acts, i.e., Gildas
answers were conclusions of law. A witness is not permitted to testify as to a conclusion
of law, among which, legal responsibility is one of the most conspicuous. A witness, no
matter how skillful, is not to be asked or permitted to testify as to whether or not a party
is responsible to the law. Law in the sense here used embraces whatever conclusions
belonging properly to the court.[42]
What is clear to us is that there were, at least, two acts of attempted rape and one
consummated rape, committed in light of the testimony of Gilda. The information,
however, charged the accused with only one act of rape; hence, consistent with the
constitutional right of the accused to be informed of the nature and cause of the
accusation against him,[43] he cannot be held liable for more than what he was
charged. There can only be one conviction for rape if the information charges only one
offense, even if the evidence shows three separate acts of sexual intercourse. [44]
Neither are we persuaded by the claim that Gilda was not able to positively identify
the accused. He was familiar to Gilda one or two weeks before the incident because
she saw him driving a tricycle and had, in fact, been once a passenger of his. She saw
him clearly at the guardhouse before the incident because the guardhouse was well-lit;
she was his passenger that evening until he stopped his tricycle near the unfinished
house; and she had ample opportunity to see and recognize him during the
assault. Then, Gilda did not hesitate to point to and identify the accused as her rapist
when the latter was brought by the policemen to the house of Tony Antonio.
The accuseds defense of alibi, which is the weakest of all defenses for it is easy to
concoct and fabricate, cannot prevail over his positive identification by Gilda. [45]
Moreover, any scintilla of doubt both as to the identification of the accused and as to
his guilt was dissolved by the overtures of his parents, wife, children and sister-in-law on
pleading for forgiveness from Gilda. The accused did not disown their acts, which were
testified to by his kumadre, Resurreccion Talub Quiocho, and Gilda herself. He chose
not to deny their testimony. Finally, despite the unequivocal pronouncement by the trial
court that his guilt was strongly established by the acts of his parents, wife and relatives,
who had gone to the house of the victim to ask her forgiveness and to seek a
compromise, the accused dared not assign that finding and conclusion as an error and
his Appellants Brief is conspicuously silent thereon. Indubitably then, the accused was a
party to the decision to seek for forgiveness, or had prior knowledge of the plan to seek
for it and consented to pursue it, or confirmed and ratified the act of his parents, wife,
children and sister-in-law. A plea for forgiveness may be considered as analogous to an

attempt to compromise. In criminal cases, except those involving quasi-offense (criminal

negligence) or those allowed by law to be compromised, an offer of compromise by the
accused may be received in evidence as an implied admission of guilt. [46] No one would
ask for forgiveness unless he had committed some wrong, for to forgive means to
absolve, to pardon, to cease to feel resentment against on account of wrong committed;
give up claim to requital from or retribution upon (an offender). [47] In People vs.
Calimquim,[48] we stated:
The fact that appellants mother sought forgiveness for her son from Corazons father
is an indication of guilt. (See People vs. Olmedillo, L-42660, August 30, 1982, 116
SCRA 193).
The accused may be correct in the third assigned error because no testimony of a
witness established that the accused was in a state of drunkenness when he sexually
assaulted Gilda.The trial court may have formed its conclusion that the accused was
drunk from his testimony that he and Alfredo Fernandez were drinking liquor in his
house from 9:00 to 11:00 p.m. of 31 March 1992. In any event, that erroneous
conclusion is innocuous.
We do not then hesitate to conclude that the accused, having had carnal knowledge
of complainant Gilda Ambray through the use of force and intimidation, committed the
crime of rape as defined and penalized in Article 335 of the Revised Penal Code, the
prescribed penalty being reclusion perpetua.
The damages awarded by the trial court stand modification. No damage for loss of
income due to Gildas resignation from her employment should have been awarded, the
resignation being unnecessary. Conformably however with the current jurisprudence,
she is entitled to indemnity of P50,000.00. For her shame, as well as mental anguish,
fright, serious anxiety, besmirched reputation, moral shock and social humiliation which
rape necessarily brings to the offended party,[49] she is entitled to recover moral
damages under Article 2219 in relation to Article 2217 of the Civil Code. However, since
no aggravating circumstance had been proved, exemplary damages may not be
awarded. In Article 2230 of the Civil Code, such damages may be awarded in criminal
cases when the crime was committed with one or more aggravating circumstances.
WHEREFORE, the instant appeal is DISMISSED and the challenged decision of 30
June 1994 of Branch 19 of the Regional Trial Court of Bacoor, Cavite, in Criminal Case
No. B-92-216 is AFFIRMED, subject to the modification on the civil liabilities, and as so
modified, the awards of P30,000.00 as actual damages for loss of monthly salary
and P10,000.00 as exemplary damages are deleted, and accused-appellant Gener de
Guzman y Sico is further ordered to pay the complainant Gilda Ambray the sum
of P50,000.00 as indemnity. The awards for moral damages, litigation expenses and
attorneys fees stand.
Costs against the accused-appellant.

SO ORDERED.
EN BANC

[G.R. No. 1284. November 10, 1905. ]

THE CITY OF MANILA, Plaintiff-Appellee, v. JACINTO DEL ROSARIO, DefendantAppellant.

Francisco Rodriguez, for Appellant.

Modesto Reyes, for Appellee.

SYLLABUS

1. ACTION; DISMISSAL; ERROR. The defendant is entitled to have the case

dismissed where the plaintiff fails to establish the allegations in the complaint; and an
order overruling such motion is erroneous.

2. REALTY; POSSESSION; EVIDENCE. Where one derives title to real estate from
another, the declaration act, or omission of the latter to the property is evidence against
the former only when made while the latter holds the title. (Sec. 278, Code of Civil
Procedure.)

3. ID.; ID.; ID.; REGISTRATION; PRESUMPTION OF OWNERSHIP. A possessory

information recorded in the property register is prima facie evidence of the fact that the
person who instituted the proceedings holds the property as owner; and the
presumption, under article 448 of the Civil Code, is that his title is good unless the
contrary is shown.

DECISION

MAPA, J. :

This is an action to recover the possession of the two lots describe in the complaint,
located in Calles Clavel and Barcelona, district of Tondo, at present occupied by the
defendant.

The court below entered judgment in favor of the plaintiff and against the defendant for
possession and damages in the sum of $2,500, United States currency, and costs.

At the trial, after the plaintiff rested, the defendant moved for the dismissal of the case
upon the ground that the plaintiff had failed to establish the allegations in the complaint.
This motion was overruled by the court, to which ruling the defendant duly excepted.
The question thus raised puts in issue the trial courts finding that the plaintiff was
entitled to the ownership and possession of the land in question. We accordingly hold
that this point is impliedly involved in the third and fourth assignments of error.

Plaintiff introduced both documentary and oral evidence. The latter consisted of the
testimony of John R. Lorenzo del Rosario, and Modesto Reyes, the city attorney. The
first witness testified that he did not know of his own knowledge if the land in question
belonged to the city (p. 11 of the bill of exceptions). The next witness testified that the
land included in Calles Clavel and Barcelona was formerly part of Plaza Divisoria, which
belonged to the Central Government (not the city), and that he did not know to whom it
now belongs (pp. 12 and 13 of the bill of exceptions)). It must be borne in mind that this
witness referred to the land included in Calles Clavel and Barcelona, and not to the lots
described in the complaint. These lots abut upon the streets referred to, but do not form
a part of either. According to the complaint, they are building lots.

The third witness, Juan Villegas, testified that the land in question was formerly included
in the Gran Divisoria, and that all the land included in it belonged to the city. In this
particular his testimony is at variance with that of the precediing witness, who testified
that the land belonged to the Central Government. Villegas testimony was merely
hearsay. It consisted of what he had learned from some of the oldest residents in that
section of the city. His testimony was introduced by the plaintiff apparently for the

purpose of proving that the city was generally considered the owner of the land, drawing
from this fact the presumption of actual ownership under paragraph 11, section 334, of
the Code of Civil Procedure. Such testimony, however, does not constitute the "common
reputation" referred to in the section mentioned. "common reputation," as used in that
section, is equivalent to universal reputation. The testimony of this witness is not
sufficient to establish the presumption referred to.

Furthermore, this witness stated that the land in Calle Azcarraga had been partitioned
between the municipality and the Central Government, share and share alike, and that
the Central Government (not the city) retained Calles Gabriel de Rivera and Barcelona,
which are precisely the streets on which the property abuts (bill of exceptions, pp. 15
and 16).

The fourth witness (Sotera Roco) testified merely that Lorenzo del Rosario had paid 100
pesos to her brother Cipriano Roco for the purpose of instituting a possessory
information as to the property abutting on Calle Clavel. It appears that Lorenzo del
Rosario acquired the land from Cipriano Roco and sold it to his brother Jacinto del
Rosario, the defendant in this case. Notwithstanding this, and assuming that the
hearsay testimony of Sotera Roco is admissible, we do not see how it can be inferred
from her testimony that the plaintiff is the real owner of the property.

The witness Modesto Reyes and Lorenzo del Rosario said nothing as to the ownership
of the land. They simply testified as to the authenticity of some of the documentary
evidence introduced by the plaintiff.

Of these documents the most important of all is the petition presented by Lorenzo del
Rosario to the "mayor of the city of manila" on the 26th of September, 1891, and the
letter written by him on the 9th of October, 1901, to the Municipal Board of Manila.
Lorenzo del Rosario in his testimony, admitted the authenticity of both documents which
contain an offer to the municipality of Manila to purchase the land on Calle Clavel.
Lorenzo del Rosario admitted also that he signed the first document under the
misapprehension that the land belonged to the city, but that he had been subsequently
informed by some of the city officials that the land did not belong to the municipality, but
to Cipriano Roco y Vera. He stated that he signed the second document because the
President of the Municipal Board, Seor Herrera, advised him to do so in order to avoid
litigation with the city. His testimony in this respect was not contradicted. We accordingly
hold that the provisions of section 346 of the Code of Civil Procedure are applicable to
the case at bar in so far as they declare that an offer of compromise is not admissible in
evidence.

Again, Lorenzo del Rosario signed the first document before he acquired from Cipriano
Roco y Vera the ownership of the land referred to therein, the second document being
signed after he had transferred the land to the defendant Jacinto del Rosario, who took
possession of the same and had it registered, as the plaintiff admits (par. 2 of the
complaint), on the 23d of February, 1893. If this is so, whatever statements Lorenzo del
Rosario might have made in the documents mentioned, they are not binding upon the
defendant, because, under section 278 of the Code of Civil Procedure, "where one
derives title to real property from another, the declaration, act, or omission of the latter,
in relation to the property, is evidence against the former only when made while the
latter holds the title."cralaw virtua1aw library

The plaintiff also introduced in evidence a map of the city of Manila. This map is not
before us. It is sufficient to say, in order to show that it has no value as evidence, that
the reliability of the map was not proven at the trial. The only witness examined with
regard to it was the city attorney. He was unable to say who made it or who caused it to
be made, or when it was made. He said only that he believed the map had been drawn
in the month of July, 1880, or prior to May, 1893. Neither this nor his statement that the
map was found among the archives of the city of Manila is of itself sufficient to show
that the map is authentic. No one appears to certify as to its correctness.

The map identified by the witness John R. Wilson was introduced by the plaintiff for the
sole purpose of showing the location of the land in question. It has, therefore, no value
in establishing the right of possession claimed by the plaintiff.

On the other hand, the two public instruments executed on March 7, 1900, between the
defendant and Telesfora Apostol y Perea, also introduced in evidence by the plaintiff,
show that the defendant was in possession of the land under a good title and with the
status of owner of the land. In the first instrument if is stated so many words that the
defendant is the owner in fee simple of the land, he having repurchased it from Liberio
de Aurteneche y Menchacatorre, whose title had been recorded in the property register.

From the foregoing it appears that the evidence introduced by the plaintiff does not
prove its claim of title to the land in question. Neither the testimony of the witnesses
presented by the plaintiff nor the documentary evidence introduced show that the city of
Manila is the owner of the land, or that it has a right to its possession as claimed in the
complaint. Some of the documents introduced, as well as the two public instruments
referred to as having been executed in 1900, tended to support the contentions of the

defendant rather than those of the plaintiff. Furthermore, the plaintiff itself admits in the
complaint that the defendants possession of the land in Calle Barcelona was recorded
since March, 1901, and his possession of that in Calle Clavel since February, 1893. This
shows that the defendant had been in the adverse possession of the land. According to
article 448 of the Civil Code he must be presumed to hold under a just title, unless the
contrary is shown.

In view of the foregoing, we hold that the defendant had a perfect right to ask for the
dismissal of the case on the ground that the plaintiff had failed to establish the
allegations in the complaint, and the court erred in overruling his motion to dismiss.

The order of the trial court overruling the motion of the defendant to dismiss and the
judgment appealed from are hereby reversed. Let the case be remanded to the court of
its origin for action in accordance herewith. The plaintiff shall pay the costs of the Court
of First Instance. No special order is made as to the costs on appeal. After the
expiration of twenty days from the date hereof let judgment be entered in conformity
herewith. So ordered.

Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION
G.R. No. 77029 August 30, 1990
BIENVENIDO, ESTELITA, MACARIO, LUIS, ADELAIDE, ENRIQUITA and CLAUDIO,
all
surnamed,
GEVERO,petitioners,
vs.
INTERMEDIATE APPELLATE COURT and DEL MONTE DEVELOPMENT
CORPORATION, respondents.
Carlito B. Somido for petitioners.
Benjamin N. Tabios for private respondent.

PARAS, J.:

This is a petition for review on certiorari of the March 20, 1988 decision 1 of the then
Intermediate Appellate Court (now Court of Appeals) in AC-GR CV No. 69264, entitled
Del Monte Development Corporation vs. Enrique Ababa, et al., etc. affirming the
decision 2 of the then Court of First Instance (now Regional Trial Court) of Misamis
Oriental declaring the plaintiff corporation as the true and absolute owner of that portion
of Lot 476 of the Cagayan Cadastre, particularly Lot No. 2476-D of the subdivision plan
(LRC) Psd-80450, containing an area of Seven Thousand Eight Hundred Seventy Eight
(7,878) square meters more or less.
As found by the Appellate Court, the facts are as follows:
The parcel of land under litigation is Lot No. 2476 of the Subdivision Plan
Psd-37365 containing an area of 20,119 square meters and situated at
Gusa, Cagayan de Oro City. Said lot was acquired by purchase from the
late Luis Lancero on September 15, 1964 as per Deed of Absolute Sale
executed in favor of plaintiff and by virtue of which Transfer Certificate of
Title No. 4320 was issued to plaintiff (DELCOR for brevity). Luis Lancero,
in turn acquired the same parcel from Ricardo Gevero on February 5,
1952 per deed of sale executed by Ricardo Gevero which was duly
annotated as entry No. 1128 at the back of Original Certificate of Title No.
7610 covering the mother lot identified as Lot No. 2476 in the names of
Teodorica Babangha 1/2 share and her children: Maria; Restituto,
Elena, Ricardo, Eustaquio and Ursula, all surnamed surnamed Gevero,
1/2 undivided share of the whole area containing 48,122 square meters.
Teodorica Babangha died long before World War II and was survived by
her six children aforementioned. The heirs of Teodorica Babangha on
October 17,1966 executed an Extra-Judicial Settlement and Partition of
the estate of Teodorica Babangha, consisting of two lots, among them was
lot 2476. By virtue of the extra-judicial settlement and partition executed
by the said heirs of Teodorica Babangha, Lot 2476-A to Lot 2476-I,
inclusive, under subdivision plan (LRC) Psd-80450 duly approved by the
Land Registration Commission, Lot 2476-D, among others, was
adjudicated to Ricardo Gevero who was then alive at the time of extrajudicial settlement and partition in 1966. Plaintiff (private respondent
herein) filed an action with the CFI (now RTC) of Misamis Oriental to quiet
title and/or annul the partition made by the heirs of Teodorica Babangha
insofar as the same prejudices the land which it acquired a portion of lot
2476.
Plaintiff now seeks to quiet title and/or annul the partition made by the
heirs of Teodorica Babangha insofar as the same prejudices the land
which it acquired, a portion of Lot 2476. Plaintiff proved that before

purchasing Lot 2476-A it first investigated and checked the title of Luis
Lancero and found the same to be intact in the office of the Register of
Deeds of Cagayan de Oro City. The same with the subdivision plan (Exh.
"B"), the corresponding technical description (Exh. "P") and the Deed of
Sale executed by Ricardo Gevero all of which were found to be
unquestionable. By reason of all these, plaintiff claims to have bought the
land in good faith and for value, occupying the land since the sale and
taking over from Lancero's possession until May 1969, when the
defendants Abadas forcibly entered the property. (Rollo, p. 23)
After trial the court a quo on July 18, 1977 rendered judgment, the dispositive portion of
which reads as follows:
WHEREFORE, premises considered, judgment is hereby rendered
declaring the plaintiff corporation as the true and absolute owner of that
portion of Lot No. 2476 of the Cagayan Cadastre, particularly Lot No.
2476-D of the subdivision plan (LRC) Psd-80450, containing an area of
SEVEN THOUSAND EIGHT HUNDRED SEVENTY EIGHT (7,878) square
meters, more or less. The other portions of Lot No. 2476 are hereby
adjudicated as follows:
Lot No. 2476 B to the heirs of Elena Gevero;
Lot No. 2476 C to the heirs of Restituto Gevero;
Lot No. 2476 E to the defendant spouses Enrique C. Torres and
Francisca Aquino;
Lot No. 2476 F to the defendant spouses Eduard Rumohr and Emilia
Merida Rumohf ;
Lot Nos. 2476-H, 2476-I and 2476 G to defendant spouses Enrique
Abada and Lilia Alvarez Abada.
No adjudication can be made with respect to Lot No. 2476-A considering
that the said lot is the subject of a civil case between the Heirs of Maria
Gevero on one hand and the spouses Daniel Borkingkito and Ursula
Gevero on the other hand, which case is now pending appeal before the
Court of Appeals. No pronouncement as to costs,
SO ORDERED. (Decision, Record on Appeal, p. 203; Rollo, pp. 21-22)

From said decision, defendant heirs of Ricardo Gevero (petitioners herein) appealed to
the IAC (now Court of Appeals) which subsequently, on March 20, 1986, affirmed the
decision appealed from.
Petitioners, on March 31, 1986, filed a motion for reconsideration (Rollo, p. 28) but was
denied on April 21, 1986.
Hence, the present petition.
This petition is devoid of merit.
Basically, the issues to be resolved in the instant case are: 1) whether or not the
deed of sale executed by Ricardo Gevero to Luis Lancero is valid; 2) in the
affirmative, whether or not the 1/2 share of interest of Teodorica Babangha in one
of the litigated lots, lot no. 2476 under OCT No. 7610 is included in the deed of
sale; and 3) whether or not the private respondents' action is barred by laches.
Petitioners maintain that the deed of sale is entirely invalid citing alleged flaws thereto,
such as that: 1) the signature of Ricardo was forged without his knowledge of such fact;
2) Lancero had recognized the fatal defect of the 1952 deed of sale when he signed the
document in 1968 entitled "Settlement to Avoid the Litigation"; 3) Ricardo's children
remained in the property notwithstanding the sale to Lancero; 4) the designated Lot No.
is 2470 instead of the correct number being Lot No. 2476; 5) the deed of sale included
the share of Eustaquio Gevero without his authority; 6) T.C.T. No. 1183 of Lancero
segregated the area of 20,119 square meters from the bigger area (OCT No. 7616)
without the consent of the other co-owners; 7) Lancero caused the 1952 Subdivision
survey without the consent of the Geveros' to bring about the segregation of the 20,119
square meters lot from the mother lot 2476 which brought about the issuance of his title
T-1183 and to DELCOR's title T4320, both of which were illegally issued; and 8) the
area sold as per document is 20,649 square meters whereas the segregated area
covered by TCT No. T-1183 of Lancero turned out to be 20,119 square meters
(Petitioners Memorandum, pp. 62-78).
As to petitioners' claim that the signature of Ricardo in the 1952 deed of sale in favor of
Lancero was forged without Ricardo's knowledge of such fact (Rollo, p. 71) it will be
observed that the deed of sale in question was executed with all the legal formalities of
a public document. The 1952 deed was duly acknowledged by both parties before the
notary public, yet petitioners did not bother to rebut the legal presumption of the
regularity of the notarized document (Dy v. Sacay, 165 SCRA 473 [1988]); Nuguid v.
C.A., G.R. No. 77423, March 13, 1989). In fact it has long been settled that a public
document executed and attested through the intervention of the notary public is
evidence of the facts in clear, unequivocal manner therein expressed. It has the
presumption of regularity and to contradict all these, evidence must be clear, convincing

and more than merely preponderant (Rebuleda v. I.A.C., 155 SCRA 520-521 [1987]).
Forgery cannot be presumed, it must be proven (Siasat v. IAC, No. 67889, October 10,
1985). Likewise, petitioners allegation of absence of consideration of the deed was not
substantiated. Under Art. 1354 of the Civil Code, consideration is presumed unless the
contrary is proven.
As to petitioners' contention that Lancero had recognized the fatal defect of the 1952
deed when he signed the document in 1968 entitled "Settlement to Avoid Litigation"
(Rollo, p. 71), it is a basic rule of evidence that the right of a party cannot be prejudiced
by an act, declaration, or omission of another (Sec. 28. Rule 130, Rules of Court). This
particular rule is embodied in the maxim "res inter alios acta alteri nocere non debet."
Under Section 31, Rule 130, Rules of Court "where one derives title to property from
another, the act, declaration, or omission of the latter, while holding the title, in relation
to the property is evidence against the former." It is however stressed that the admission
of the former owner of a property must have been made while he was the owner thereof
in order that such admission may be binding upon the present owner (City of Manila v.
del Rosario, 5 Phil. 227 [1905]; Medel v. Avecilla, 15 Phil. 465 [1910]). Hence, Lanceros'
declaration or acts of executing the 1968 document have no binding effect on DELCOR,
the ownership of the land having passed to DELCOR in 1964.
Petitioners' claim that they remained in the property, notwithstanding the alleged sale by
Ricardo to Lancero (Rollo, p. 71) involves a question of fact already raised and passed
upon by both the trial and appellate courts. Said the Court of Appeals:
Contrary to the allegations of the appellants, the trial court found that Luis
Lancero had taken possession of the land upon proper investigation by
plaintiff the latter learned that it was indeed Luis Lancero who was the
owner and possessor of Lot 2476 D. . . . (Decision, C.A., p. 6).
As a finding of fact, it is binding upon this Court (De Gola-Sison v. Manalo, 8 SCRA 595
[1963]; Gaduco vs. C.A., 14 SCRA 282 [1965]; Ramos v. Pepsi-Cola, 19 SCRA 289
[1967]; Tan v. C.A., 20 SCRA 54 [1967]; Ramirez Tel. Co. v. Bank of America, 33 SCRA
737 [1970]; Lucero v. Loot, 25 SCRA 687 [1968]; Guerrero v. C.A., 142 SCRA 130
[1986]).
Suffice it to say that the other flaws claimed by the petitioners which allegedly
invalidated the 1952 deed of sale have not been raised before the trial court nor before
the appellate court. It is settled jurisprudence that an issue which was neither averred in
the complaint nor raised during the trial in the court below cannot be raised for the first
time on appeal as it would be offensive to the basic rules of fair play, justice and due
process. (Matienzo v. Servidad, 107 SCRA 276 [1981]; Dela Santa v. C.A., 140 SCRA
44 [1985]; Dihiansan v. C.A., 157 SCRA 434 [1987]; Anchuelo v. IAC, 147 SCRA 434

[1987]; Dulos Realty and Development Corporation v. C.A., 157 SCRA [1988]; Kamos v.
IAC, G.R. No. 78282, July 5, 1989).
Petitioners aver that the 1/2 share of interest of Teodorica (mother of Ricardo) in Lot
2476 under OCT No. 7610 was not included in the deed of sale as it was intended to
limit solely to Ricardos' proportionate share out of the undivided 1/2 of the area
pertaining to the six (6) brothers and sisters listed in the Title and that the Deed did not
include the share of Ricardo, as inheritance from Teodorica, because the Deed did not
recite that she was deceased at the time it was executed (Rollo, pp. 67-68).
The hereditary share in a decedents' estate is transmitted or vested immediately from
the moment of the death of the "causante" or predecessor in interest (Civil Code of the
Philippines, Art. 777), and there is no legal bar to a successor (with requisite contracting
capacity) disposing of his hereditary share immediately after such death, even if the
actual extent of such share is not determined until the subsequent liquidation of the
estate (De Borja v. Vda. de Borja, 46 SCRA 577 [1972]).
Teodorica Babangha died long before World War II, hence, the rights to the succession
were transmitted from the moment of her death. It is therefore incorrect to state that it
was only in 1966, the date of extrajudicial partition, when Ricardo received his share in
the lot as inheritance from his mother Teodorica. Thus, when Ricardo sold his share
over lot 2476 that share which he inherited from Teodorica was also included unless
expressly excluded in the deed of sale.
Petitioners contend that Ricardo's share from Teodorica was excluded in the sale
considering that a paragraph of the aforementioned deed refers merely to the shares of
Ricardo and Eustaquio (Rollo, p. 67-68).
It is well settled that laws and contracts shall be so construed as to harmonize and give
effect to the different provisions thereof (Reparations Commission v. Northern Lines,
Inc., 34 SCRA 203 [1970]), to ascertain the meaning of the provisions of a contract, its
entirety must be taken into account (Ruiz v. Sheriff of Manila, 34 SCRA 83 [1970]). The
interpretation insisted upon by the petitioners, by citing only one paragraph of the deed
of sale, would not only create contradictions but also, render meaningless and set at
naught the entire provisions thereof.
Petitioners claim that DELCOR's action is barred by laches considering that the
petitioners have remained in the actual, open, uninterrupted and adverse possession
thereof until at present (Rollo, p. 17).
An instrument notarized by a notary public as in the case at bar is a public instrument
(Eacnio v. Baens, 5 Phil. 742). The execution of a public instrument is equivalent to the
delivery of the thing (Art. 1498, 1st Par., Civil Code) and is deemed legal delivery.

Hence, its execution was considered a sufficient delivery of the property (Buencamino v.
Viceo, 13 Phil. 97; [1906]; Puato v. Mendoza, 64 Phil. 457 [1937]; Vda. de Sarmiento v.
Lesaca, 108 Phil. 900 [1960]; Phil. Suburban Development Corp. v. Auditor Gen., 63
SCRA 397 (1975]).
Besides, the property sold is a registered land. It is the act of registration that transfers
the ownership of the land sold. (GSIS v. C.A., G.R. No. 42278, January 20, 1989). If the
property is a registered land, the purchaser in good, faith has a right to rely on the
certificate of title and is under no duty to go behind it to look for flaws (Mallorca v. De
Ocampo, No. L-26852, March 25, 1970; Unchuan v. C.A., 161 SCRA 710 [1988];
Nuguid v. CA-G.R. No. 77427, March 13, 1989).
Under the established principles of land registration law, the person dealing with
registered land may generally rely on the correctness of its certificate of title and the law
will in no way oblige him to go behind the certificate to determine the condition of the
property (Tiongco v. de la Merced, L-2446, July 25, 1974; Lopez vs. CA., G.R. No.
49739, January 20, 1989; Davao Grains Inc. vs. IAC, 171 SCRA 612 [1989]). This
notwithstanding, DELCOR did more than that. It did not only rely on the certificate of
title. The Court of Appeals found that it had first investigated and checked the title
(T.C.T. No. T-1183) in the name of Luis Lancero. It likewise inquired into the Subdivision
Plan, the corresponding technical description and the deed of sale executed by Ricardo
Gevero in favor of Luis Lancero and found everything in order. It even went to the
premises and found Luis Lancero to be in possession of the land to the exclusion of any
other person. DELCOR had therefore acted in good faith in purchasing the land in
question.
Consequently, DELCOR's action is not barred by laches.
The main issues having been disposed of, discussion of the other issues appear
unnecessary.
PREMISES CONSIDERED, the instant petition is hereby DISMISSED and the decision
of the Court of Appeals is hereby AFFIRMED.
SO ORDERED.
Republic
SUPREME
Manila

of

EN BANC
G.R. No. L-12858

January 22, 1918

the

Philippines
COURT

THE
UNITED
vs.
SANTIAGO PINEDA, defendant-appellant.
Francisco
and
Lualhati
Acting Attorney-General Paredes for appellee.

STATES, plaintiff-appellee,

for

appellant.

MALCOLM, J.:
This appeal requires a construction and an application, for the first time, of the penal
provisions of the Pharmacy Law.
Santiago Pineda, the defendant, is a registered pharmacist of long standing and the
owner of a drug store located at Nos. 442, 444, Calle Santo Cristo, city of Manila. One
Feliciano Santos, having some sick horses, presented a copy of a prescription obtained
from Dr. Richardson, and which on other occasions Santos had given to his horses with
good results, at Pineda's drug store for filling. The prescription read "clorato de
potasa 120 gramos en seis papelitos de 20 gramos, para caballo." Under the
supervision of Pineda, the prescription was prepared and returned to Santos in the form
of six papers marked, "Botica Pineda Clorato potasa 120.00 en seis papeles
para caballo Sto. Cristo 442, 444, Binondo, Manila." Santos, under the belief that he
had purchased the potassium chlorate which he had asked for, put two of the packages
in water the doses to two of his sick horses. Another package was mixed with water for
another horse, but was not used. The two horses, to which had been given the
preparation, died shortly afterwards. Santos, thereupon, took the three remaining
packages to the Bureau of Science for examination. Drs. Pea and Darjuan, of the
Bureau of Science, on analysis found that the packages contained not potassium
chlorate but barium chlorate. At the instance of Santos, the two chemists also went to
the drug store of the defendant and bought potassium chlorate, which when analyzed
was found to be barium chlorate. (Barium chlorate, it should be noted, is a poison;
potassium chlorate is not.) Dr. Buencamino, a veterinarian, performed an autopsy on
the horses, and found that death was the result of poisoning.
Four assignments of error are made. The first is that the lower court erred in admitting
the testimony of the chemist Pena and Darjuan as to their purchase of potassium
chlorate at the drug store of the accused, which substance proved on analysis to be
barium chlorate. What the appellant is here relying on is the maxim res inter alios acta.
As a general rule, the evidence of other offenses committed by a defendant is
inadmissible. But appellant has confused this maxim and this rule with certain
exceptions thereto. The effort is not to convict the accused of a second offense. Nor is
there an attempt to draw the mind away from the point at issue and thus to prejudice
defendant's case. The purpose is to ascertain defendant's knowledge and intent, and to
fix his negligence. If the defendant has on more than one occasion performed similar

acts, accident in good faith is possibly excluded, negligence is intensified, and

fraudulent intent may even be established. It has been said that there is no better
evidence of negligence than the frequency of accidents. (See 10 R. C. L., pp. 938, 940.)
The United States Supreme Court has held that:
On the trial of a criminal case the question relates to the tendency of certain
testimony to throw light upon a particular fact, or to explain the conduct of a
particular person, there is a certain discretion on the part of the trial judge which
a court of errors will not interfere with, unless it manifestly appear that the
testimony has no legitimate bearing upon the question at issue, and is calculated
to prejudice the accused.
Whenever the necessity arises for a resort to circumstantial evidence, either from
the nature of the inquiry or the failure of direct proof, objections to the testimony
on the ground of irrelevancy are not favored.
Evidence is admissible in a criminal action which tends to show motive, although
it tends to prove the commission of another offense by the defendant. (Moore vs.
U. S. [1893], 150 U. S., 57.)
The second assignment of error is that the lower court erred in finding that the
substance sold by the accused to Feliciano Santos on the 22d of June, 1916, was
barium chlorate and not potassium chlorate. The proof demonstrates the contrary.
The third and fourth assignments of error that the lower court erred in finding that the
accused has been proved guilty beyond a reasonable doubt of an infraction of Act No.
597, section 17, as amended. The third assignment contains the points we should
consider, including, we may remark, a somewhat difficult question concerning which the
briefs have given little assistance.
The Pharmacy Law was first enacted as Act No. 597, was later amended by Act Nos.
1921, 2236, and 2382, and is now found as Chapter 30 of the Administrative Code. The
law provides for a board of pharmaceutical examiners, and the examination and
registration of pharmacists, and finally contains sundry provisions relative to the practice
of pharmacy. High qualification for applicants for the pharmaceutical; examination are
established. The program of subjects for the examination is wide. Responsibility for the
quality of drugs is fixed by section 17 of the Pharmacy Law, as amended (now
Administrative Code [1917], section 751), in the following term:
Every pharmacist shall be responsible for the quality of all drugs, chemicals,
medicines, and poisons he may sell or keep for sale; and it shall be unlawful for
any person whomsoever to manufacture, prepare, sell, or administer any
prescription, drug, chemical, medicine, or poison under any fraudulent name,

direction, or pretense, or to adulterate any drug, chemical, medicine, or poison so

used, sold or offered for sale. Any drug, chemical, medicine, or poison shall be
held to be adulterated or deteriorated within the meaning of this section if it
differs from the standard of quality or purity given in the United States
Pharmacopoeia.
The same section of the Pharmacy Law also contains the following penal provision:
"Any person violating the provisions of this Act shall, upon conviction, be punished by a
fine of not more than five hundred dollar." The Administrative Code, section 2676,
changes the penalty somewhat by providing that:
Any person engaging in the practice of pharmacy in the Philippine Islands
contrary to any provision of the Pharmacy Law or violating any provisions of said
law for which no specific penalty s provided shall, for each offense, be punished
by a fine not to exceed two hundred pesos, or by imprisonment for not more than
ninety days, or both, in the discretion of the court.
These are the provisions of law, pursuant to which prosecution has been initiated and
which it is now incumbent upon us to construe.
Turning to the law, certain points therein as bearing on our present facts must be
admitted. Thus, defendant is a pharmacist. As a pharmacist, he is made responsible for
the quality of all drugs and poisons which he sells. And finally it is provided that it shall
be unlawful for him to sell any drug or poison under any "fraudulent name." It is the one
word "fraudulent" which has given the court trouble. What did the Legislature intend to
convey by this restrictive adjective?
Were we to adhere to the technical definition of fraud, which the appellant vigorously
insists upon, it would be difficult, if not impossible, to convict any druggist of a violation
of the law. The prosecution would have to prove to a reasonable degree of certainty that
the druggist made a material representation; that it was false; that when he made it he
knew that it was false or made it recklessly without any knowledge of its truth and as
positive assertion; that he made it with the intention that it should be acted upon by the
purchaser; that the purchaser acted in reliance upon it, and that the purchased thereby
suffered injury. Such a construction with a literal following of well-known principles on
the subject of fraud would strip the law of at least much of its force. It would leave the
innocent purchaser of drugs, who must blindly trust in the good faith and vigilance of the
pharmacist, at the mercy of any unscrupulous vendor. We should not, therefore, without
good reason so devitalize the law.
The profession of pharmacy, it has been said again and again, is one demanding care
and skill. The responsibility of the druggist to use care has been variously qualified as
"ordinary care," "care of a special high degree," "the highest degree of care known to

practical men." Even under the first conservative expression, "ordinary care" with
reference to the business of a druggist, the Supreme Court of Connecticut has said
must be held to signify "the highest practicable degree of prudence, thoughtfulness, and
vigilance, and most exact and reliable safeguards consistent with the reasonable
conduct of the business, in order that human life may not be constantly be exposed to
the danger flowing from the substitution of deadly poisons for harmless medicine."
(Tombari vs. Connors [1912], 85 Conn., 235. See also Willson vs. Faxon, Williams and
Faxon [1913], 208 N. Y., 108; Knoefel vs. Atkins [1907], 81 N. E., 600.) The "skill"
required of a druggist is denominated as "high" or "ample." (Peters vs. Jackson [1902],
50 W. Va., 644; 57 L. R. A., 428.) In other words, the care required must be
commensurate with the danger involved, and the skill employed must correspond with
the superior knowledge of the business which the law demands.
Under one conception, and it should not be forgotten that the case we consider are civil
in nature, the question of negligence or ignorance is irrelevant. The druggist is
responsible as an absolute guarantor of what he sells. In a decision which stands alone,
the Supreme Court of Kentucky said:
As applicable to the owners of drug stores, or persons engaged in vending drugs
and medicines by retail, the legal maxim should be reversed. Instead of caveat
emptor, it should be caveat venditor. That is to say, let him be certain that he
does not sell to a purchaser or send to a patient one drug for another, as arsenic
for calomel, cantharides for or mixed with snakeroot and Peruvian bark, or even
one innocent drug, calculated to produce a certain effect, in place of another sent
for and designed to produce a different effect. If he does these things, he cannot
escape civil responsibility, upon the alleged pretext that it was an accidental or an
innocent mistake; that he had been very careful and particular, and had used
extraordinary care and diligence in preparing or compounding the medicines as
required, etc. Such excuses will not avail him. (Fleet vs. Hollenkemp [1852], 56
Am. Dec., 563.)
Under the other conception, in which the proof of negligence is considered as material,
where a customer calls upon a druggist for a harmless remedy, delivery of a poisonous
drug by mistake by the druggist is prima facienegligence, placing the burden on him to
show that the mistake was under the circumstances consistent with the exercise of due
care. (See Knoefel vs. Atkins, supra,) The druggist cannot, for example in filling a
prescription calling for potassium chlorate give instead to the customer barium chlorate,
a poison, place this poison in a package labeled "potassium chlorate," and expect to
escape responsibility on plea of mistake. His mistake, under the most favorable aspect
for himself, was negligence. So in a case where a druggist filled an order for calomel
tablets with morphine and placed the morphine in a box labeled calomel, it was said:

It is not suggested, nor can we apprehend that it is in any wise probable, that the
act of furnishing the wrong drug in this case was willful. If it was furnished by the
clerk, it was undoubtedly a mistake and unintentional. However, it was a mistake
of the gravest kind, and of the most disastrous effect. We cannot say that one
holding himself out as competent to handle such drugs, and who does so, having
rightful access to them, and relied upon by those dealing with him to exercise
that high degree of caution and care called for by the peculiarly dangerous nature
of this business, can be heard to say that his mistakes by which he furnishes a
customer the most deadly of drugs for those comparatively harmless is not, in
and of itself, gross negligence, and that of an aggravated form. (Smith's Admrx.
vs. Middleton [1902], 56 L. R. A., 484.)
The rule of caveat emptor cannot apply to the purchase and sale of drugs. The vendor
and the vendee do not stand at arms length as in ordinary transactions. An imperative
duty is on the druggist to take precautions to prevent death or serious injury to anyone
who relies on his absolute honesty and peculiar leaning. The nature of drugs is such
that examination would not avail the purchaser anything. It would be idle mockery for
the customer to make an examination of a compound of which he can know nothing.
Consequently, it must be that the druggist warrants that he will deliver the drug called
for.
In civil cases, the druggist is made liable for any injury approximately resulting from his
negligence. If B negligently sells poison under the guise of a beneficial drug to A, he is
liable for the injury done to A. In a case, which has repeatedly been termed the leading
case on the subject and which has been followed by the United States Supreme Court,
it was said, "Pharmacists or apothecaries who compound or sell medicines, if they
carelessly label a poison as a harmless medicine, and sent it so labeled into the market,
are liable to all persons who, without fault on their part, are injured by using it as such
medicine, in consequence of the false label; the rule being that the liability in such a
case arises not out of any contract or direct privity between the wrong-doer and the
person injured, but out of the duty which the law imposes on him to avoid acts in their
nature dangerous to the lives of others." (Nat. Savings Bank vs. Ward [1879], 100 U. S.,
195, following Thomas vs. Winchester [1852], 2 Seld. [N. Y.], 387.) In reality, for the
druggist, mistake is negligence and care is no defense. Throughout the criminal law, run
the same rigorous rules. For example, apothecaries or apothecary clerks, who are guilty
of negligence in the sale of medicine when death ensues in consequence, have been
held guilty of manslaughter. (See Tessymond's Case [1828], 1 Lewin, C. C., 169.)
Bearing these general principles in mind, and remembering particularly the care and
skill which are expected of druggist, that in some jurisdictions they are liable even for
their mistake and in others have the burden placed upon them to establish that they
were not negligent, it cannot be that the Philippine Legislature intended to use the word
"fraudulent" in all its strictness. A plea of accident and mistake cannot excuse for they

cannot take place unless there be wanton and criminal carelessness and neglect. How
the misfortune occurs is unimportant, if under all the circumstances the fact of
occurrence is attributed to the druggist as a legal fault. Rather considering the
responsibility for the quality of drugs which the law imposes on druggists and the
position of the word "fraudulent" in juxtaposition to "name," what is made unlawful is the
giving of a false name to the drug asked for. This view is borne out by Spanish
translation, which we are permitted to consult to explain the English text. In the Spanish
"supuesto" is used, and this word is certainly not synonymous with "fraudulent." The
usual badges of fraud, falsify, deception, and injury must be present-but not scienter.
In view of the tremendous an imminent danger to the public from the careless sale of
poisons and medicines, we do not deem it too rigid a rule to hold that the law penalizes
any druggist who shall sell one drug for another whether it be through negligence or
mistake.
The judgment of the lower court, sentencing the defendant to pay a fine of P100, with
subsidiary imprisonment in case of insolvency, and to pay the costs, is affirmed with the
cost of this instance against the appellant, without prejudice to any civil action which
may be instituted. So ordered.
Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. No. L-45685

November 16, 1937

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI

BANKING
CORPORATION,petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU
UNJIENG, respondents.
Office of the Solicitor General Tuason and City Fiscal Diaz for the Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking
Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and
McDonough
for
respondent
Cu
Unjieng.
No appearance for respondent Judge.

LAUREL, J.:

This is an original action instituted in this court on August 19, 1937, for the issuance of
the writ of certiorari and of prohibition to the Court of First Instance of Manila so that this
court may review the actuations of the aforesaid Court of First Instance in criminal case
No. 42649 entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.",
more particularly the application of the defendant Mariano Cu Unjieng therein for
probation under the provisions of Act No. 4221, and thereafter prohibit the said Court of
First Instance from taking any further action or entertaining further the aforementioned
application for probation, to the end that the defendant Mariano Cu Unjieng may be
forthwith committed to prison in accordance with the final judgment of conviction
rendered by this court in said case (G. R. No. 41200). 1
Petitioners herein, the People of the Philippine and the Hongkong and Shanghai
Banking Corporation, are respectively the plaintiff and the offended party, and the
respondent herein Mariano Cu Unjieng is one of the defendants, in the criminal case
entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal
case No. 42649 of the Court of First Instance of Manila and G.R. No. 41200 of this
court. Respondent herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh
branch of the Court of First Instance of Manila, who heard the application of the
defendant Mariano Cu Unjieng for probation in the aforesaid criminal case.
The information in the aforesaid criminal case was filed with the Court of First Instance
of Manila on October 15, 1931, petitioner herein Hongkong and Shanghai Banking
Corporation intervening in the case as private prosecutor. After a protracted trial
unparalleled in the annals of Philippine jurisprudence both in the length of time spent by
the court as well as in the volume in the testimony and the bulk of the exhibits
presented, the Court of First Instance of Manila, on January 8, 1934, rendered a
judgment of conviction sentencing the defendant Mariano Cu Unjieng to indeterminate
penalty ranging from four years and two months of prision correccional to eight years of
prision mayor, to pay the costs and with reservation of civil action to the offended party,
the Hongkong and Shanghai Banking Corporation. Upon appeal, the court, on March
26, 1935, modified the sentence to an indeterminate penalty of from five years and six
months of prision correccional to seven years, six months and twenty-seven days
of prision mayor, but affirmed the judgment in all other respects. Mariano Cu Unjieng
filed a motion for reconsideration and four successive motions for new trial which were
denied on December 17, 1935, and final judgment was accordingly entered on
December 18, 1935. The defendant thereupon sought to have the case elevated
on certiorari to the Supreme Court of the United States but the latter denied the petition
forcertiorari in
November, 1936. This court, on
November 24, 1936,
denied the petition subsequently filed by the defendant for leave to file a second
alternative motion for reconsideration or new trial and thereafter remanded the case to
the court of origin for execution of the judgment.

The instant proceedings have to do with the application for probation filed by the herein
respondent Mariano Cu Unjieng on
November 27, 1936, before the trial court,
under the provisions of Act No. 4221 of the defunct Philippine Legislature. Herein
respondent Mariano Cu Unjieng states in his petition, inter alia, that he is innocent of the
crime of which he was convicted, that he has no criminal record and that he would
observe good conduct in the future. The Court of First Instance of Manila, Judge Pedro
Tuason presiding, referred the application for probation of the Insular Probation Office
which recommended denial of the same June 18, 1937. Thereafter, the Court of First
Instance of Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for
hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of
probation to the herein respondent Mariano Cu Unjieng. The private prosecution also
filed an opposition on April 5, 1937, alleging, among other things, that Act No. 4221,
assuming that it has not been repealed by section 2 of Article XV of the Constitution, is
nevertheless violative of section 1, subsection (1), Article III of the Constitution
guaranteeing equal protection of the laws for the reason that its applicability is not
uniform throughout the Islands and because section 11 of the said Act endows the
provincial boards with the power to make said law effective or otherwise in their
respective or otherwise in their respective provinces. The private prosecution also filed
a supplementary opposition on April 19, 1937, elaborating on the alleged
unconstitutionality on Act No. 4221, as an undue delegation of legislative power to the
provincial boards of several provinces (sec. 1, Art. VI, Constitution). The City Fiscal
concurred in the opposition of the private prosecution except with respect to the
questions raised concerning the constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with
a finding that "las pruebas no han establecido de unamanera concluyente la
culpabilidad del peticionario y que todos los hechos probados no son inconsistentes o
incongrentes con su inocencia" and concludes that the herein respondent Mariano Cu
Unjieng "es inocente por duda racional" of the crime of which he stands convicted by
this court in G.R. No. 41200, but denying the latter's petition for probation for the reason
that:
. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la
historia social que se han expuesto en el cuerpo de esta resolucion, que hacen
al peticionario acreedor de la misma, una parte de la opinion publica, atizada por
los recelos y las suspicacias, podria levantarse indignada contra un sistema de
probacion que permite atisbar en los procedimientos ordinarios de una causa
criminal perturbando la quietud y la eficacia de las decisiones ya recaidas al traer
a la superficie conclusiones enteramente differentes, en menoscabo del interes
publico que demanda el respeto de las leyes y del veredicto judicial.

On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an
exception to the resolution denying probation and a notice of intention to file a motion
for reconsideration. An alternative motion for reconsideration or new trial was filed by
counsel on July 13, 1937. This was supplemented by an additional motion for
reconsideration submitted on July 14, 1937. The aforesaid motions were set for hearing
on July 31, 1937, but said hearing was postponed at the petition of counsel for the
respondent Mariano Cu Unjieng because a motion for leave to intervene in the case
as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the
trial court. Attorney Eulalio Chaves whose signature appears in the aforesaid motion
subsequently filed a petition for leave to withdraw his appearance as amicus curiae on
the ground that the motion for leave to intervene as amici curiae was circulated at a
banquet given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and
that he signed the same "without mature deliberation and purely as a matter of courtesy
to the person who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for
the issuance of an order of execution of the judgment of this court in said case and
forthwith to commit the herein respondent Mariano Cu Unjieng to jail in obedience to
said judgment.
On August 7, 1937, the private prosecution filed its opposition to the motion for leave to
intervene as amici curiaeaforementioned, asking that a date be set for a hearing of the
same and that, at all events, said motion should be denied with respect to certain
attorneys signing the same who were members of the legal staff of the several counsel
for Mariano Cu Unjieng. On August 10, 1937, herein respondent Judge Jose O. Vera
issued an order requiring all parties including the movants for intervention as amici
curiae to appear before the court on August 14, 1937. On the last-mentioned date, the
Fiscal of the City of Manila moved for the hearing of his motion for execution of
judgment in preference to the motion for leave to intervene as amici curiae but, upon
objection of counsel for Mariano Cu Unjieng, he moved for the postponement of the
hearing of both motions. The respondent judge thereupon set the hearing of the motion
for execution on August 21, 1937, but proceeded to consider the motion for leave to
intervene as amici curiae as in order. Evidence as to the circumstances under which
said motion for leave to intervene as amici curiae was signed and submitted to court
was to have been heard on August 19, 1937. But at this juncture, herein petitioners
came to this court on extraordinary legal process to put an end to what they alleged was
an interminable proceeding in the Court of First Instance of Manila which fostered "the
campaign of the defendant Mariano Cu Unjieng for delay in the execution of the
sentence imposed by this Honorable Court on him, exposing the courts to criticism and
ridicule because of the apparent inability of the judicial machinery to make effective a
final judgment of this court imposed on the defendant Mariano Cu Unjieng."

The scheduled hearing before the trial court was accordingly suspended upon the
issuance of a temporary restraining order by this court on August 21, 1937.
To support their petition for the issuance of the extraordinary writs of certiorari and
prohibition, herein petitioners allege that the respondent judge has acted without
jurisdiction or in excess of his jurisdiction:
I. Because said respondent judge lacks the power to place respondent Mariano Cu
Unjieng under probation for the following reason:
(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is
made to apply only to the provinces of the Philippines; it nowhere states that it is
to be made applicable to chartered cities like the City of Manila.
(2) While section 37 of the Administrative Code contains a proviso to the effect
that in the absence of a special provision, the term "province" may be construed
to include the City of Manila for the purpose of giving effect to laws of general
application, it is also true that Act No. 4221 is not a law of general application
because it is made to apply only to those provinces in which the respective
provincial boards shall have provided for the salary of a probation officer.
(3) Even if the City of Manila were considered to be a province, still, Act No. 4221
would not be applicable to it because it has provided for the salary of a probation
officer as required by section 11 thereof; it being immaterial that there is an
Insular Probation Officer willing to act for the City of Manila, said Probation
Officer provided for in section 10 of Act No. 4221 being different and distinct from
the Probation Officer provided for in section 11 of the same Act.
II. Because even if the respondent judge originally had jurisdiction to entertain the
application for probation of the respondent Mariano Cu Unjieng, he nevertheless acted
without jurisdiction or in excess thereof in continuing to entertain the motion for
reconsideration and by failing to commit Mariano Cu Unjieng to prison after he had
promulgated his resolution of June 28, 1937, denying Mariano Cu Unjieng's application
for probation, for the reason that:
(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221
to the granting or denying of applications for probation.
(2) After he had issued the order denying Mariano Cu Unjieng's petition for
probation on June 28, 1937, it became final and executory at the moment of its
rendition.
(3) No right on appeal exists in such cases.

(4) The respondent judge lacks the power to grant a rehearing of said order or to
modify or change the same.
III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent
of the crime for which he was convicted by final judgment of this court, which finding is
not only presumptuous but without foundation in fact and in law, and is furthermore in
contempt of this court and a violation of the respondent's oath of office as ad
interim judge of first instance.
IV. Because the respondent judge has violated and continues to violate his duty, which
became imperative when he issued his order of June 28, 1937, denying the application
for probation, to commit his co-respondent to jail.
Petitioners also avers that they have no other plain, speedy and adequate remedy in the
ordinary course of law.
In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and
Shanghai Banking Corporation further contends that Act No. 4221 of the Philippine
Legislature providing for a system of probation for persons eighteen years of age or
over who are convicted of crime, is unconstitutional because it is violative of section 1,
subsection (1), Article III, of the Constitution of the Philippines guaranteeing equal
protection of the laws because it confers upon the provincial board of its province the
absolute discretion to make said law operative or otherwise in their respective
provinces, because it constitutes an unlawful and improper delegation to the provincial
boards of the several provinces of the legislative power lodged by the Jones Law
(section 8) in the Philippine Legislature and by the Constitution (section 1, Art. VI) in the
National Assembly; and for the further reason that it gives the provincial boards, in
contravention of the Constitution (section 2, Art. VIII) and the Jones Law (section 28),
the authority to enlarge the powers of the Court of First Instance of different provinces
without uniformity. In another supplementary petition dated September 14, 1937, the
Fiscal of the City of Manila, in behalf of one of the petitioners, the People of the
Philippine Islands, concurs for the first time with the issues raised by other petitioner
regarding the constitutionality of Act No. 4221, and on the oral argument held on
October 6, 1937, further elaborated on the theory that probation is a form of reprieve
and therefore Act. No. 4221 is an encroachment on the exclusive power of the Chief
Executive to grant pardons and reprieves. On October 7, 1937, the City Fiscal filed two
memorandums in which he contended that Act No. 4221 not only encroaches upon the
pardoning power to the executive, but also constitute an unwarranted delegation of
legislative power and a denial of the equal protection of the laws. On October 9, 1937,
two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in
behalf of the People of the Philippine Islands, and by counsel for the petitioner, the
Hongkong and Shanghai Banking Corporation, one sustaining the power of the state to
impugn the validity of its own laws and the other contending that Act No. 4221

constitutes an unwarranted delegation of legislative power, were presented. Another

joint memorandum was filed by the same persons on the same day, October 9, 1937,
alleging that Act No. 4221 is unconstitutional because it denies the equal protection of
the laws and constitutes an unlawful delegation of legislative power and, further, that the
whole Act is void: that the Commonwealth is not estopped from questioning the validity
of its laws; that the private prosecution may intervene in probation proceedings and may
attack the probation law as unconstitutional; and that this court may pass upon the
constitutional question in prohibition proceedings.
Respondents in their answer dated August 31, 1937, as well as in their oral argument
and memorandums, challenge each and every one of the foregoing proposition raised
by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts sufficient in law to warrant the
issuance of the writ of certiorari or of prohibition.
(2) That the aforesaid petition is premature because the remedy sought by the
petitioners is the very same remedy prayed for by them before the trial court and
was still pending resolution before the trial court when the present petition was
filed with this court.
(3) That the petitioners having themselves raised the question as to the
execution of judgment before the trial court, said trial court has acquired
exclusive jurisdiction to resolve the same under the theory that its resolution
denying probation is unappealable.
(4) That upon the hypothesis that this court has concurrent jurisdiction with the
Court of First Instance to decide the question as to whether or not the execution
will lie, this court nevertheless cannot exercise said jurisdiction while the Court of
First Instance has assumed jurisdiction over the same upon motion of herein
petitioners themselves.
(5) That upon the procedure followed by the herein petitioners in seeking to
deprive the trial court of its jurisdiction over the case and elevate the proceedings
to this court, should not be tolerated because it impairs the authority and dignity
of the trial court which court while sitting in the probation cases is "a court of
limited jurisdiction but of great dignity."
(6) That under the supposition that this court has jurisdiction to resolve the
question submitted to and pending resolution by the trial court, the present action
would not lie because the resolution of the trial court denying probation is
appealable; for although the Probation Law does not specifically provide that an

applicant for probation may appeal from a resolution of the Court of First Instance
denying probation, still it is a general rule in this jurisdiction that a final order,
resolution or decision of an inferior court is appealable to the superior court.
(7) That the resolution of the trial court denying probation of herein respondent
Mariano Cu Unjieng being appealable, the same had not become final and
executory for the reason that the said respondent had filed an alternative motion
for reconsideration and new trial within the requisite period of fifteen days, which
motion the trial court was able to resolve in view of the restraining order
improvidently and erroneously issued by this court.lawphi1.net
(8) That the Fiscal of the City of Manila had by implication admitted that the
resolution of the trial court denying probation is not final and unappealable when
he presented his answer to the motion for reconsideration and agreed to the
postponement of the hearing of the said motion.
(9) That under the supposition that the order of the trial court denying probation is
not appealable, it is incumbent upon the accused to file an action for the
issuance of the writ ofcertiorari with mandamus, it appearing that the trial court,
although it believed that the accused was entitled to probation, nevertheless
denied probation for fear of criticism because the accused is a rich man; and
that, before a petition for certiorari grounded on an irregular exercise of
jurisdiction by the trial court could lie, it is incumbent upon the petitioner to file a
motion for reconsideration specifying the error committed so that the trial court
could have an opportunity to correct or cure the same.
(10) That on hypothesis that the resolution of this court is not appealable, the trial
court retains its jurisdiction within a reasonable time to correct or modify it in
accordance with law and justice; that this power to alter or modify an order or
resolution is inherent in the courts and may be exercise either motu proprio or
upon petition of the proper party, the petition in the latter case taking the form of
a motion for reconsideration.
(11) That on the hypothesis that the resolution of the trial court is appealable as
respondent allege, said court cannot order execution of the same while it is on
appeal, for then the appeal would not be availing because the doors of probation
will be closed from the moment the accused commences to serve his sentence
(Act No. 4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for the respondents maintain
that Act No. 4221 is constitutional because, contrary to the allegations of the petitioners,
it does not constitute an undue delegation of legislative power, does not infringe the
equal protection clause of the Constitution, and does not encroach upon the pardoning

power of the Executive. In an additional memorandum filed on the same date, counsel
for the respondents reiterate the view that section 11 of Act No. 4221 is free from
constitutional objections and contend, in addition, that the private prosecution may not
intervene in probation proceedings, much less question the validity of Act No. 4221; that
both the City Fiscal and the Solicitor-General are estopped from questioning the validity
of the Act; that the validity of Act cannot be attacked for the first time before this court;
that probation in unavailable; and that, in any event, section 11 of the Act No. 4221 is
separable from the rest of the Act. The last memorandum for the respondent Mariano
Cu Unjieng was denied for having been filed out of time but was admitted by resolution
of this court and filed anew on
November 5, 1937. This memorandum elaborates
on some of the points raised by the respondents and refutes those brought up by the
petitioners.
In the scrutiny of the pleadings and examination of the various aspects of the present
case, we noted that the court below, in passing upon the merits of the application of the
respondent Mariano Cu Unjieng and in denying said application assumed the task not
only of considering the merits of the application, but of passing upon the culpability of
the applicant, notwithstanding the final pronouncement of guilt by this court. (G.R. No.
41200.) Probation implies guilt be final judgment. While a probation case may look into
the circumstances attending the commission of the offense, this does not authorize it to
reverse the findings and conclusive of this court, either directly or indirectly, especially
wherefrom its own admission reliance was merely had on the printed briefs, averments,
and pleadings of the parties. As already observed by this court in Shioji vs.
Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "if each and
every Court of First Instance could enjoy the privilege of overruling decisions of the
Supreme Court, there would be no end to litigation, and judicial chaos would result." A
becoming modesty of inferior courts demands conscious realization of the position that
they occupy in the interrelation and operation of the intergrated judicial system of the
nation.
After threshing carefully the multifarious issues raised by both counsel for the petitioners
and the respondents, this court prefers to cut the Gordian knot and take up at once the
two fundamental questions presented, namely, (1) whether or not the constitutionality of
Act No. 4221 has been properly raised in these proceedings; and (2) in the affirmative,
whether or not said Act is constitutional. Considerations of these issues will involve a
discussion of certain incidental questions raised by the parties.
To arrive at a correct conclusion on the first question, resort to certain guiding principles
is necessary. It is a well-settled rule that the constitutionality of an act of the legislature
will not be determined by the courts unless that question is properly raised and
presented inappropriate cases and is necessary to a determination of the case; i.e., the
issue of constitutionality must be the very lis mota presented. (McGirr vs. Hamilton and
Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.)

The question of the constitutionality of an act of the legislature is frequently raised in

ordinary actions. Nevertheless, resort may be made to extraordinary legal remedies,
particularly where the remedies in the ordinary course of law even if available, are not
plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone([1922]), 42 Phil., 818),
this court held that the question of the constitutionality of a statute may be raised by the
petitioner in mandamus proceedings (see, also, 12 C. J., p. 783); and in Government of
the Philippine Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in Springer vs.
Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this
court declared an act of the legislature unconstitutional in an action of quo
warrantobrought in the name of the Government of the Philippines. It has also been
held that the constitutionality of a statute may be questioned in habeas
corpus proceedings (12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117),
although there are authorities to the contrary; on an application for injunction to restrain
action under the challenged statute (mandatory, see Cruz vs. Youngberg [1931], 56
Phil., 234); and even on an application for preliminary injunction where the
determination of the constitutional question is necessary to a decision of the case. (12
C. J., p. 783.) The same may be said as regards prohibition and certiorari.(Yu Cong Eng
vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs.
First Judicial District Court [1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann.
Cas., 982; 1 L. R. A. [N. S], 843, and cases cited). The case of Yu Cong Eng vs.
Trinidad, supra, decided by this court twelve years ago was, like the present one, an
original action for certiorari and prohibition. The constitutionality of Act No. 2972,
popularly known as the Chinese Bookkeeping Law, was there challenged by the
petitioners, and the constitutional issue was not met squarely by the respondent in a
demurrer. A point was raised "relating to the propriety of the constitutional question
being decided in original proceedings in prohibition." This court decided to take up the
constitutional question and, with two justices dissenting, held that Act No. 2972 was
constitutional. The case was elevated on writ of certiorari to the Supreme Court of the
United States which reversed the judgment of this court and held that the Act was
invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of jurisdiction, however, the
Federal Supreme Court, though its Chief Justice, said:
By the Code of Civil Procedure of the Philippine Islands, section 516, the
Philippine supreme court is granted concurrent jurisdiction in prohibition with
courts of first instance over inferior tribunals or persons, and original jurisdiction
over courts of first instance, when such courts are exercising functions without or
in excess of their jurisdiction. It has been held by that court that the question of
the validity of the criminal statute must usually be raised by a defendant in the
trial court and be carried regularly in review to the Supreme Court. (CadwalladerGibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case where a new
act seriously affected numerous persons and extensive property rights, and was
likely to cause a multiplicity of actions, the Supreme Court exercised its discretion
to bring the issue to the act's validity promptly before it and decide in the interest

of the orderly administration of justice. The court relied by analogy upon the
cases of Ex parte Young (209 U. S., 123;52 Law ed., 714; 13 L. R. A. [N. S.] 932;
28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich, 239 U. S., 33; 60 Law.
ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and
Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup.
Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction was
raise by demurrer to the petition, this is now disclaimed on behalf of the
respondents, and both parties ask a decision on the merits. In view of the broad
powers in prohibition granted to that court under the Island Code, we acquiesce
in the desire of the parties.
The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior
jurisdiction and directed to an inferior court, for the purpose of preventing the inferior
tribunal from usurping a jurisdiction with which it is not legally vested. (High,
Extraordinary Legal Remedies, p. 705.) The general rule, although there is a conflict in
the cases, is that the merit of prohibition will not lie whether the inferior court has
jurisdiction independent of the statute the constitutionality of which is questioned,
because in such cases the interior court having jurisdiction may itself determine the
constitutionality of the statute, and its decision may be subject to review, and
consequently the complainant in such cases ordinarily has adequate remedy by appeal
without resort to the writ of prohibition. But where the inferior court or tribunal derives its
jurisdiction exclusively from an unconstitutional statute, it may be prevented by the writ
of prohibition from enforcing that statute. (50 C. J., 670; Ex parte Round tree [1874, 51
Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me., 384;
84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W.
Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.)
Courts of First Instance sitting in probation proceedings derived their jurisdiction solely
from Act No. 4221 which prescribes in detailed manner the procedure for granting
probation to accused persons after their conviction has become final and before they
have served their sentence. It is true that at common law the authority of the courts to
suspend temporarily the execution of the sentence is recognized and, according to a
number of state courts, including those of Massachusetts, Michigan, New York, and
Ohio, the power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874],
115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex
rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio
St., 616). But, in the leading case of Ex parte United States ([1916], 242 U. S., 27; 61
Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the
Supreme Court of the United States expressed the opinion that under the common law
the power of the court was limited to temporary suspension, and brushed aside the
contention as to inherent judicial power saying, through Chief Justice White:

Indisputably under our constitutional system the right to try offenses against the
criminal laws and upon conviction to impose the punishment provided by law is
judicial, and it is equally to be conceded that, in exerting the powers vested in
them on such subject, courts inherently possess ample right to exercise
reasonable, that is, judicial, discretion to enable them to wisely exert their
authority. But these concessions afford no ground for the contention as to power
here made, since it must rest upon the proposition that the power to enforce
begets inherently a discretion to permanently refuse to do so. And the effect of
the proposition urged upon the distribution of powers made by the Constitution
will become apparent when it is observed that indisputable also is it that the
authority to define and fix the punishment for crime is legislative and includes the
right in advance to bring within judicial discretion, for the purpose of executing
the statute, elements of consideration which would be otherwise beyond the
scope of judicial authority, and that the right to relieve from the punishment, fixed
by law and ascertained according to the methods by it provided belongs to the
executive department.
Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons
vs. Judge of First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also
reached the conclusion that the power to suspend the execution of sentences
pronounced in criminal cases is not inherent in the judicial function. "All are agreed", he
said, "that in the absence of statutory authority, it does not lie within the power of the
courts to grant such suspensions." (at p. 278.) Both petitioner and respondents are
correct, therefore, when they argue that a Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is
conferred exclusively by Act No. 4221 of the Philippine Legislature.
It is, of course, true that the constitutionality of a statute will not be considered on
application for prohibition where the question has not been properly brought to the
attention of the court by objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30
S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case
at bar, it is unquestionable that the constitutional issue has been squarely presented not
only before this court by the petitioners but also before the trial court by the private
prosecution. The respondent, Hon. Jose O Vera, however, acting as judge of the court
below, declined to pass upon the question on the ground that the private prosecutor, not
being a party whose rights are affected by the statute, may not raise said question. The
respondent judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec.
177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E.,
742, 743), as authority for the proposition that a court will not consider any attack made
on the constitutionality of a statute by one who has no interest in defeating it because
his rights are not affected by its operation. The respondent judge further stated that it
may not motu proprio take up the constitutional question and, agreeing with Cooley that
"the power to declare a legislative enactment void is one which the judge, conscious of

the fallibility of the human judgment, will shrink from exercising in any case where he
can conscientiously and with due regard to duty and official oath decline the
responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the
assumption that Act No. 4221 is constitutional. While therefore, the court a quo admits
that the constitutional question was raised before it, it refused to consider the question
solely because it was not raised by a proper party. Respondents herein reiterates this
view. The argument is advanced that the private prosecution has no personality to
appear in the hearing of the application for probation of defendant Mariano Cu Unjieng
in criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue
of constitutionality was not properly raised in the lower court. Although, as a general
rule, only those who are parties to a suit may question the constitutionality of a statute
involved in a judicial decision, it has been held that since the decree pronounced by a
court without jurisdiction is void, where the jurisdiction of the court depends on the
validity of the statute in question, the issue of the constitutionality will be considered on
its being brought to the attention of the court by persons interested in the effect to be
given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede that the
issue was not properly raised in the court below by the proper party, it does not follow
that the issue may not be here raised in an original action of certiorari and prohibitions.
It is true that, as a general rule, the question of constitutionality must be raised at the
earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised
at the trial, and if not raised in the trial court, it will not considered on appeal. (12 C. J.,
p. 786. See, also,Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193195.) But we must state that the general rule admits of exceptions. Courts, in the
exercise of sounds discretion, may determine the time when a question affecting the
constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135,
144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is
said that the question may be raised for the first time at any stage of the proceedings,
either in the trial court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been
held that it is the duty of a court to pass on the constitutional question, though raised for
the first time on appeal, if it appears that a determination of the question is necessary to
a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky.,
674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S.
W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And it
has been held that a constitutional question will be considered by an appellate court at
any time, where it involves the jurisdiction of the court below (State vs. Burke [1911],
175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional
question raised for the first time before this court in these proceedings, we turn again
and point with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the
hypotheses that the Hongkong & Shanghai Banking Corporation, represented by the
private prosecution, is not the proper party to raise the constitutional question here a
point we do not now have to decide we are of the opinion that the People of the
Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is
such a proper party in the present proceedings. The unchallenged rule is that the

person who impugns the validity of a statute must have a personal and substantial
interest in the case such that he has sustained, or will sustained, direct injury as a result
of its enforcement. It goes without saying that if Act No. 4221 really violates the
constitution, the People of the Philippines, in whose name the present action is brought,
has a substantial interest in having it set aside. Of grater import than the damage
caused by the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule
that the state can challenge the validity of its own laws. In Government of the Philippine
Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the
Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of
the legislature unconstitutional in an action instituted in behalf of the Government of the
Philippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W.
426, 428, 429), the State of Michigan, through its Attorney General, instituted quo
warranto proceedings to test the right of the respondents to renew a mining corporation,
alleging that the statute under which the respondents base their right was
unconstitutional because it impaired the obligation of contracts. The capacity of the chief
law officer of the state to question the constitutionality of the statute was though, as a
general rule, only those who are parties to a suit may question the constitutionality of a
statute involved in a judicial decision, it has been held that since the decree pronounced
by a court without jurisdiction in void, where the jurisdiction of the court depends on the
validity of the statute in question, the issue of constitutionality will be considered on its
being brought to the attention of the court by persons interested in the effect to begin
the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue
was not properly raised in the court below by the proper party, it does not follow that the
issue may not be here raised in an original action of certiorari and prohibition. It is true
that, as a general rule, the question of constitutionality must be raised at the earliest
opportunity, so that if not raised by the pleadings, ordinarily it may not be raised a the
trial, and if not raised in the trial court, it will not be considered on appeal. (12 C.J., p.
786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193195.) But we must state that the general rule admits of exceptions. Courts, in the
exercise of sound discretion, may determine the time when a question affecting the
constitutionality of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135,
144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is
said that the question may be raised for the first time at any state of the proceedings,
either in the trial court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has been
held that it is the duty of a court to pass on the constitutional question, though raised for
first time on appeal, if it appears that a determination of the question is necessary to a
decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674;
124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W.,
1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has
been held that a constitutional question will be considered by an appellate court at any
time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175
Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional

question raised for the first time before this court in these proceedings, we turn again
and point with emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the
hypothesis that the Hongkong & Shanghai Banking Corporation, represented by the
private prosecution, is not the proper party to raise the constitutional question here a
point we do not now have to decide we are of the opinion that the People of the
Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is
such a proper party in the present proceedings. The unchallenged rule is that the
person who impugns the validity of a statute must have a personal and substantial
interest in the case such that he has sustained, or will sustain, direct injury as a result of
its enforcement. It goes without saying that if Act No. 4221 really violates the
Constitution, the People of the Philippines, in whose name the present action is brought,
has a substantial interest in having it set aside. Of greater import than the damage
caused by the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule
that the state can challenge the validity of its own laws. In Government of the Philippine
Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the
Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of
the legislature unconstitutional in an action instituted in behalf of the Government of the
Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W.,
426, 428, 429), the State of Michigan, through its Attorney General, instituted quo
warranto proceedings to test the right of the respondents to renew a mining corporation,
alleging that the statute under which the respondents base their right was
unconstitutional because it impaired the obligation of contracts. The capacity of the chief
law officer of the state to question the constitutionality of the statute was itself
questioned. Said the Supreme Court of Michigan, through Champlin, J.:
. . . The idea seems to be that the people are estopped from questioning the
validity of a law enacted by their representatives; that to an accusation by the
people of Michigan of usurpation their government, a statute enacted by the
people of Michigan is an adequate answer. The last proposition is true, but, if the
statute relied on in justification is unconstitutional, it is statute only in form, and
lacks the force of law, and is of no more saving effect to justify action under it
than if it had never been enacted. The constitution is the supreme law, and to its
behests the courts, the legislature, and the people must bow . . . The legislature
and the respondents are not the only parties in interest upon such constitutional
questions. As was remarked by Mr. Justice Story, in speaking of an acquiescence
by a party affected by an unconstitutional act of the legislature: "The people have
a deep and vested interest in maintaining all the constitutional limitations upon
the exercise of legislative powers." (Allen vs. Mckeen, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action
(mandamus) was brought by the Attorney-General of Kansas to test the constitutionality

of a statute of the state. In disposing of the question whether or not the state may bring
the action, the Supreme Court of Kansas said:
. . . the state is a proper party indeed, the proper party to bring this action.
The state is always interested where the integrity of its Constitution or statutes is
involved.
"It has an interest in seeing that the will of the Legislature is not
disregarded, and need not, as an individual plaintiff must, show
grounds of fearing more specific injury. (State vs. Kansas City 60
Kan., 518 [57 Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103
Pac., 839.)
Where the constitutionality of a statute is in doubt the state's law officer, its
Attorney-General, or county attorney, may exercise his bet judgment as to what
sort of action he will bring to have the matter determined, either by quo warranto
to challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49
L.R.A., 662), by mandamus to compel obedience to its terms (State vs. Dolley,
82 Kan., 533; 108 Pac., 846), or by injunction to restrain proceedings under its
questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45
Pac., 122).
Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co.
[1917], 197 S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs.
Walmsley [1935], 181 La., 597; 160 S., 91; State vs. Board of County Comr's [1934], 39
Pac. [2d], 286; First Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E.,
1020; Bush vs. State {1918], 187 Ind., 339; 119 N.E., 417; State vs. Watkins [1933], 176
La., 837; 147 S., 8, 10, 11). In the case last cited, the Supreme Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district attorney, being
charged with the duty of enforcing the laws, has no right to plead that a law is
unconstitutional. In support of the argument three decisions are cited, viz.:
State ex rel. Hall, District Attorney, vs. Judge of Tenth Judicial District (33 La.
Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare, Mayor of New
Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs.
Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These
decisions do not forbid a district attorney to plead that a statute is
unconstitutional if he finds if in conflict with one which it is his duty to enforce. In
State ex rel. Hall, District Attorney, vs. Judge, etc., the ruling was the judge
should not, merely because he believed a certain statute to be unconstitutional
forbid the district attorney to file a bill of information charging a person with a
violation of the statute. In other words, a judge should not judicially declare a
statute unconstitutional until the question of constitutionality is tendered for

decision, and unless it must be decided in order to determine the right of a party
litigant. Stateex rel. Nicholls, Governor, etc., is authority for the proposition
merely that an officer on whom a statute imposes the duty of enforcing its
provisions cannot avoid the duty upon the ground that he considers the statute
unconstitutional, and hence in enforcing the statute he is immune from
responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is
authority for the proposition merely that executive officers, e.g., the state auditor
and state treasurer, should not decline to perform ministerial duties imposed
upon them by a statute, on the ground that they believe the statute is
unconstitutional.
It is the duty of a district attorney to enforce the criminal laws of the state, and,
above all, to support the Constitution of the state. If, in the performance of his
duty he finds two statutes in conflict with each other, or one which repeals
another, and if, in his judgment, one of the two statutes is unconstitutional, it is
his duty to enforce the other; and, in order to do so, he is compelled to submit to
the court, by way of a plea, that one of the statutes is unconstitutional. If it were
not so, the power of the Legislature would be free from constitutional limitations
in the enactment of criminal laws.
The respondents do not seem to doubt seriously the correctness of the general
proposition that the state may impugn the validity of its laws. They have not cited any
authority running clearly in the opposite direction. In fact, they appear to have
proceeded on the assumption that the rule as stated is sound but that it has no
application in the present case, nor may it be invoked by the City Fiscal in behalf of the
People of the Philippines, one of the petitioners herein, the principal reasons being that
the validity before this court, that the City Fiscal is estopped from attacking the validity
of the Act and, not authorized challenge the validity of the Act in its application outside
said city. (Additional memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and
23.)
The mere fact that the Probation Act has been repeatedly relied upon the past and all
that time has not been attacked as unconstitutional by the Fiscal of Manila but, on the
contrary, has been impliedly regarded by him as constitutional, is no reason for
considering the People of the Philippines estopped from nor assailing its validity. For
courts will pass upon a constitutional questions only when presented before it in bona
fide cases for determination, and the fact that the question has not been raised before is
not a valid reason for refusing to allow it to be raised later. The fiscal and all others are
justified in relying upon the statute and treating it as valid until it is held void by the
courts in proper cases.
It remains to consider whether the determination of the constitutionality of Act No. 4221
is necessary to the resolution of the instant case. For, ". . . while the court will meet the

question with firmness, where its decision is indispensable, it is the part of wisdom, and
just respect for the legislature, renders it proper, to waive it, if the case in which it arises,
can be decided on other points." (Ex parte Randolph [1833], 20 F. Cas. No. 11, 558; 2
Brock., 447. Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held that
the determination of a constitutional question is necessary whenever it is essential to
the decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs. Kennedy
[1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann.
Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed.,
520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R.
Commn., 146 Wis., 523; 129 N. W., 605), as where the right of a party is founded solely
on a statute the validity of which is attacked. (12 C.J., p. 782, citing Central Glass Co.
vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81;
74 N.E., 306). There is no doubt that the respondent Cu Unjieng draws his privilege to
probation solely from Act No. 4221 now being assailed.
Apart from the foregoing considerations, that court will also take cognizance of the fact
that the Probation Act is a new addition to our statute books and its validity has never
before been passed upon by the courts; that may persons accused and convicted of
crime in the City of Manila have applied for probation; that some of them are already on
probation; that more people will likely take advantage of the Probation Act in the future;
and that the respondent Mariano Cu Unjieng has been at large for a period of about four
years since his first conviction. All wait the decision of this court on the constitutional
question. Considering, therefore, the importance which the instant case has assumed
and to prevent multiplicity of suits, strong reasons of public policy demand that the
constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47
Phil., 385; [1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People
vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis
vs. Falk Co. [1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga
and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra,
an analogous situation confronted us. We said: "Inasmuch as the property and personal
rights of nearly twelve thousand merchants are affected by these proceedings, and
inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the interest
of the public welfare and for the advancement of public policy, we have determined to
overrule the defense of want of jurisdiction in order that we may decide the main issue.
We have here an extraordinary situation which calls for a relaxation of the general rule."
Our ruling on this point was sustained by the Supreme Court of the United States. A
more binding authority in support of the view we have taken can not be found.
We have reached the conclusion that the question of the constitutionality of Act No.
4221 has been properly raised. Now for the main inquiry: Is the Act unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce
the Constitution. This court, by clear implication from the provisions of section 2,

subsection 1, and section 10, of Article VIII of the Constitution, may declare an act of the
national legislature invalid because in conflict with the fundamental lay. It will not shirk
from its sworn duty to enforce the Constitution. And, in clear cases, it will not hesitate to
give effect to the supreme law by setting aside a statute in conflict therewith. This is of
the essence of judicial duty.
This court is not unmindful of the fundamental criteria in cases of this nature that all
reasonable doubts should be resolved in favor of the constitutionality of a statute. An act
of the legislature approved by the executive, is presumed to be within constitutional
limitations. The responsibility of upholding the Constitution rests not on the courts alone
but on the legislature as well. "The question of the validity of every statute is first
determined by the legislative department of the government itself." (U.S. vs. Ten Yu
[1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276;
U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts
sustained by the sanction of the executive. The members of the Legislature and the
Chief Executive have taken an oath to support the Constitution and it must be presumed
that they have been true to this oath and that in enacting and sanctioning a particular
law they did not intend to violate the Constitution. The courts cannot but cautiously
exercise its power to overturn the solemn declarations of two of the three grand
departments of the governments. (6 R.C.L., p. 101.) Then, there is that peculiar political
philosophy which bids the judiciary to reflect the wisdom of the people as expressed
through an elective Legislature and an elective Chief Executive. It follows, therefore,
that the courts will not set aside a law as violative of the Constitution except in a clear
case. This is a proposition too plain to require a citation of authorities.
One of the counsel for respondents, in the course of his impassioned argument, called
attention to the fact that the President of the Philippines had already expressed his
opinion against the constitutionality of the Probation Act, adverting that as to the
Executive the resolution of this question was a foregone conclusion. Counsel, however,
reiterated his confidence in the integrity and independence of this court. We take notice
of the fact that the President in his message dated September 1, 1937, recommended
to the National Assembly the immediate repeal of the Probation Act (No. 4221); that this
message resulted in the approval of Bill No. 2417 of the Nationality Assembly repealing
the probation Act, subject to certain conditions therein mentioned; but that said bill was
vetoed by the President on September 13, 1937, much against his wish, "to have
stricken out from the statute books of the Commonwealth a law . . . unfair and very likely
unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill
referred to, the President exercised his constitutional prerogative. He may express the
reasons which he may deem proper for taking such a step, but his reasons are not
binding upon us in the determination of actual controversies submitted for our
determination. Whether or not the Executive should express or in any manner insinuate
his opinion on a matter encompassed within his broad constitutional power of veto but
which happens to be at the same time pending determination in this court is a question

of propriety for him exclusively to decide or determine. Whatever opinion is expressed

by him under these circumstances, however, cannot sway our judgment on way or
another and prevent us from taking what in our opinion is the proper course of action to
take in a given case. It if is ever necessary for us to make any vehement affirmance
during this formative period of our political history, it is that we are independent of the
Executive no less than of the Legislative department of our government independent
in the performance of our functions, undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn
duty as we see it and as we understand it.
The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That
said Act encroaches upon the pardoning power of the Executive; (2) that its constitutes
an undue delegation of legislative power and (3) that it denies the equal protection of
the laws.
1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones
Law, in force at the time of the approval of Act No. 4221, otherwise known as the
Probation Act, vests in the Governor-General of the Philippines "the exclusive power to
grant pardons and reprieves and remit fines and forfeitures". This power is now vested
in the President of the Philippines. (Art. VII, sec. 11, subsec. 6.) The provisions of the
Jones Law and the Constitution differ in some respects. The adjective "exclusive" found
in the Jones Law has been omitted from the Constitution. Under the Jones Law, as at
common law, pardon could be granted any time after the commission of the offense,
either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2;In
re Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines was thus
empowered, like the President of the United States, to pardon a person before the facts
of the case were fully brought to light. The framers of our Constitution thought this
undesirable and, following most of the state constitutions, provided that the pardoning
power can only be exercised "after conviction". So, too, under the new Constitution, the
pardoning power does not extend to "cases of impeachment". This is also the rule
generally followed in the United States (Vide Constitution of the United States, Art. II,
sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar
of an impeachment; "but," says Blackstone, "after the impeachment has been solemnly
heard and determined, it is not understood that the king's royal grace is further
restrained or abridged." (Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421;
Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake
[1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the distinction is obvious. In
England, Judgment on impeachment is not confined to mere "removal from office and
disqualification to hold and enjoy any office of honor, trust, or profit under the
Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole
punishment attached by law to the offense committed. The House of Lords, on a
conviction may, by its sentence, inflict capital punishment, perpetual banishment,
perpetual banishment, fine or imprisonment, depending upon the gravity of the offense

committed, together with removal from office and incapacity to hold office. (Com. vs.
Lockwood, supra.) Our Constitution also makes specific mention of "commutation" and
of the power of the executive to impose, in the pardons he may grant, such conditions,
restrictions and limitations as he may deem proper. Amnesty may be granted by the
President under the Constitution but only with the concurrence of the National
Assembly. We need not dwell at length on the significance of these fundamental
changes. It is sufficient for our purposes to state that the pardoning power has remained
essentially the same. The question is: Has the pardoning power of the Chief Executive
under the Jones Law been impaired by the Probation Act?
As already stated, the Jones Law vests the pardoning power exclusively in the Chief
Executive. The exercise of the power may not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken away
nor fettered by any legislative restrictions, nor can like power be given by the legislature
to any other officer or authority. The coordinate departments of government have
nothing to do with the pardoning power, since no person properly belonging to one of
the departments can exercise any powers appertaining to either of the others except in
cases expressly provided for by the constitution." (20 R.C.L., pp., , and cases cited.) " . .
. where the pardoning power is conferred on the executive without express or implied
limitations, the grant is exclusive, and the legislature can neither exercise such power
itself nor delegate it elsewhere, nor interfere with or control the proper exercise
thereof, . . ." (12 C.J., pp. 838, 839, and cases cited.) If Act No. 4221, then, confers any
pardoning power upon the courts it is for that reason unconstitutional and void. But does
it?
In the famous Killitts decision involving an embezzlement case, the Supreme Court of
the United States ruled in 1916 that an order indefinitely suspending sentenced was
void. (Ex parte United States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E,
1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an
exhaustive review of the authorities, expressed the opinion of the court that under the
common law the power of the court was limited to temporary suspension and that the
right to suspend sentenced absolutely and permanently was vested in the executive
branch of the government and not in the judiciary. But, the right of Congress to establish
probation by statute was conceded. Said the court through its Chief Justice: ". . . and so
far as the future is concerned, that is, the causing of the imposition of penalties as fixed
to be subject, by probation legislation or such other means as the legislative mind may
devise, to such judicial discretion as may be adequate to enable courts to meet by the
exercise of an enlarged but wise discretion the infinite variations which may be
presented to them for judgment, recourse must be had Congress whose legislative
power on the subject is in the very nature of things adequately complete." (Quoted in
Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National Probation
Association and others to agitate for the enactment by Congress of a federal probation
law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C.

title 18, sec. 724). This was followed by an appropriation to defray the salaries and
expenses of a certain number of probation officers chosen by civil service. (Johnson,
Probation for Juveniles and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed.,
309), the Supreme Court of the United States, through Chief Justice Taft, held that when
a person sentenced to imprisonment by a district court has begun to serve his sentence,
that court has no power under the Probation Act of March 4, 1925 to grant him probation
even though the term at which sentence was imposed had not yet expired. In this case
of Murray, the constitutionality of the probation Act was not considered but was
assumed. The court traced the history of the Act and quoted from the report of the
Committee on the Judiciary of the United States House of Representatives (Report No.
1377, 68th Congress, 2 Session) the following statement:
Prior to the so-called Killitts case, rendered in December, 1916, the district courts
exercised a form of probation either, by suspending sentence or by placing the
defendants under state probation officers or volunteers. In this case, however (Ex
parte United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup.
Ct. Rep., 72 Ann. Cas. 1917B, 355), the Supreme Court denied the right of the
district courts to suspend sentenced. In the same opinion the court pointed out
the necessity for action by Congress if the courts were to exercise probation
powers in the future . . .
Since this decision was rendered, two attempts have been made to enact
probation legislation. In 1917, a bill was favorably reported by the Judiciary
Committee and passed the House. In 1920, the judiciary Committee again
favorably reported a probation bill to the House, but it was never reached for
definite action.
If this bill is enacted into law, it will bring the policy of the Federal government
with reference to its treatment of those convicted of violations of its criminal laws
in harmony with that of the states of the Union. At the present time every state
has a probation law, and in all but twelve states the law applies both to adult and
juvenile offenders. (see, also, Johnson, Probation for Juveniles and Adults
[1928], Chap. I.)
The constitutionality of the federal probation law has been sustained by inferior federal
courts. In Riggs vs. United States supra, the Circuit Court of Appeals of the Fourth
Circuit said:
Since the passage of the Probation Act of March 4, 1925, the questions under
consideration have been reviewed by the Circuit Court of Appeals of the Ninth
Circuit (7 F. [2d], 590), and the constitutionality of the act fully sustained, and the

same held in no manner to encroach upon the pardoning power of the President.
This case will be found to contain an able and comprehensive review of the law
applicable here. It arose under the act we have to consider, and to it and the
authorities cited therein special reference is made (Nix vs. James, 7 F. [2d], 590,
594), as is also to a decision of the Circuit Court of Appeals of the Seventh
Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the Probation Act.
We have seen that in 1916 the Supreme Court of the United States; in plain and
unequivocal language, pointed to Congress as possessing the requisite power to enact
probation laws, that a federal probation law as actually enacted in 1925, and that the
constitutionality of the Act has been assumed by the Supreme Court of the United
States in 1928 and consistently sustained by the inferior federal courts in a number of
earlier cases.
We are fully convinced that the Philippine Legislature, like the Congress of the United
States, may legally enact a probation law under its broad power to fix the punishment of
any and all penal offenses. This conclusion is supported by other authorities. In Ex
parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac., 698, the court said:
"It is clearly within the province of the Legislature to denominate and define all classes
of crime, and to prescribe for each a minimum and maximum punishment." And in State
vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B,
1189), the court said: "The legislative power to set punishment for crime is very broad,
and in the exercise of this power the general assembly may confer on trial judges, if it
sees fit, the largest discretion as to the sentence to be imposed, as to the beginning and
end of the punishment and whether it should be certain or indeterminate or conditional."
(Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine
Legislature has defined all crimes and fixed the penalties for their violation. Invariably,
the legislature has demonstrated the desire to vest in the courts particularly the trial
courts large discretion in imposing the penalties which the law prescribes in particular
cases. It is believed that justice can best be served by vesting this power in the courts,
they being in a position to best determine the penalties which an individual convict,
peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain
from imposing a sentence merely because, taking into consideration the degree of
malice and the injury caused by the offense, the penalty provided by law is clearly
excessive, the courts being allowed in such case to submit to the Chief Executive,
through the Department of Justice, such statement as it may deem proper (see art. 5,
Revised Penal Code), in cases where both mitigating and aggravating circumstances
are attendant in the commission of a crime and the law provides for a penalty composed
of two indivisible penalties, the courts may allow such circumstances to offset one
another in consideration of their number and importance, and to apply the penalty
according to the result of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S.
vs. Reguera and Asuategui [1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the
Revised Penal Code empowers the courts to determine, within the limits of each

periods, in case the penalty prescribed by law contains three periods, the extent of the
evil produced by the crime. In the imposition of fines, the courts are allowed to fix any
amount within the limits established by law, considering not only the mitigating and
aggravating circumstances, but more particularly the wealth or means of the culprit. (Art.
66, Revised Penal Code.) Article 68, paragraph 1, of the same Code provides that "a
discretionary penalty shall be imposed" upon a person under fifteen but over nine years
of age, who has not acted without discernment, but always lower by two degrees at
least than that prescribed by law for the crime which he has committed. Article 69 of the
same Code provides that in case of "incomplete self-defense", i.e., when the crime
committed is not wholly excusable by reason of the lack of some of the conditions
required to justify the same or to exempt from criminal liability in the several cases
mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in the
period which may be deemed proper, in view of the number and nature of the conditions
of exemption present or lacking." And, in case the commission of what are known as
"impossible" crimes, "the court, having in mind the social danger and the degree of
criminality shown by the offender," shall impose upon him either arresto mayor or a fine
ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of preventive imprisonment
is deducted form the entire term of imprisonment, except in certain cases expressly
mentioned (art. 29); the death penalty is not imposed when the guilty person is more
than seventy years of age, or where upon appeal or revision of the case by the
Supreme Court, all the members thereof are not unanimous in their voting as to the
propriety of the imposition of the death penalty (art. 47, see also, sec. 133, Revised
Administrative Code, as amended by Commonwealth Act No. 3); the death sentence is
not to be inflicted upon a woman within the three years next following the date of the
sentence or while she is pregnant, or upon any person over seventy years of age (art.
83); and when a convict shall become insane or an imbecile after final sentence has
been pronounced, or while he is serving his sentenced, the execution of said sentence
shall be suspended with regard to the personal penalty during the period of such
insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the undue harshness of the
penal laws is more clearly demonstrated in various other enactments, including the
probation Act. There is the Indeterminate Sentence Law enacted in 1933 as Act No.
4103 and subsequently amended by Act No. 4225, establishing a system of parole
(secs. 5 to 100 and granting the courts large discretion in imposing the penalties of the
law. Section 1 of the law as amended provides; "hereafter, in imposing a prison
sentence for an offenses punished by the Revised Penal Code, or its amendments, the
court shall sentence the accused to an indeterminate sentence the maximum term of
which shall be that which, in view of the attending circumstances, could be properly
imposed under the rules of the said Code, and to a minimum which shall be within the
range of the penalty next lower to that prescribed by the Code for the offense; and if the

offense is punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the maximum
fixed by said law and the minimum shall not be less than the minimum term prescribed
by the same." Certain classes of convicts are, by section 2 of the law, excluded from the
operation thereof. The Legislature has also enacted the Juvenile Delinquency Law (Act
No. 3203) which was subsequently amended by Act No. 3559. Section 7 of the original
Act and section 1 of the amendatory Act have become article 80 of the Revised Penal
Code, amended by Act No. 4117 of the Philippine Legislature and recently reamended
by Commonwealth Act No. 99 of the National Assembly. In this Act is again manifested
the intention of the legislature to "humanize" the penal laws. It allows, in effect, the
modification in particular cases of the penalties prescribed by law by permitting the
suspension of the execution of the judgment in the discretion of the trial court, after due
hearing and after investigation of the particular circumstances of the offenses, the
criminal record, if any, of the convict, and his social history. The Legislature has in reality
decreed that in certain cases no punishment at all shall be suffered by the convict as
long as the conditions of probation are faithfully observed. It this be so, then, it cannot
be said that the Probation Act comes in conflict with the power of the Chief Executive to
grant pardons and reprieves, because, to use the language of the Supreme Court of
New Mexico, "the element of punishment or the penalty for the commission of a wrong,
while to be declared by the courts as a judicial function under and within the limits of law
as announced by legislative acts, concerns solely the procedure and conduct of criminal
causes, with which the executive can have nothing to do." (Ex parte Bates, supra.) In
Williams vs. State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the
constitutionality of the Georgia probation statute against the contention that it attempted
to delegate to the courts the pardoning power lodged by the constitution in the governor
alone is vested with the power to pardon after final sentence has been imposed by the
courts, the power of the courts to imposed any penalty which may be from time to time
prescribed by law and in such manner as may be defined cannot be questioned."
We realize, of course, the conflict which the American cases disclose. Some cases hold
it unlawful for the legislature to vest in the courts the power to suspend the operation of
a sentenced, by probation or otherwise, as to do so would encroach upon the pardoning
power of the executive. (In re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St.
Rep., 846; 62 N.W., 177; 9 Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran
[1919], 43 Nev., 150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1
Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650;
People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St. Rep., 230;
Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S.
W., 162;Ex parte Shelor [1910], 33 Nev., 361;111 Pac., 291; Neal vs. State [1898], 104
Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858; State ex rel. Payne vs.
Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N.
W., 571; States vs. Dalton [1903], 109 Tenn., 544; 72 S. W., 456.)

Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590;
Archer vs. Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A.
4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R.,
1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89
Cal. App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114 Cal. App., 730; 300 Pac.,
874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69
Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371;
Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise [1913], 257
Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R.
A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle
[1909], 156 Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529;
State ex rel. Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs.
Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel.
Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J.
Eq., 430; 82 Atl. 424; Ex parteBates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151
Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; 23 L.
R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn
[1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y.
Supp., 406; Moore vs. Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re
Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N. W., 568; Ex parte Eaton [1925],
29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal [1918], 108 S. C., 455; 95 S. E.,
69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70 S. E., 6; Ann. Cas.,
1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn.,
100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs.
State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex.
Crim. Rep., 548; 165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S.
W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs.
State [1932], 122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197;
136 A., 24; Richardson vs. Com. [1921], 131 Va., 802; 109 S.E., 460; State vs. Mallahan
[1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand vs. Starwich [1922], 119
Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this long catena of
authorities holding that the courts may be legally authorized by the legislature to
suspend sentence by the establishment of a system of probation however
characterized. State ex rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac.,
29; 26 A. L. R., 393), deserved particular mention. In that case, a statute enacted in
1921 which provided for the suspension of the execution of a sentence until otherwise
ordered by the court, and required that the convicted person be placed under the
charge of a parole or peace officer during the term of such suspension, on such terms
as the court may determine, was held constitutional and as not giving the court a power
in violation of the constitutional provision vesting the pardoning power in the chief
executive of the state. (Vide, also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.)

Probation and pardon are not coterminous; nor are they the same. They are actually
district and different from each other, both in origin and in nature. In People ex rel.
Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R.
A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of New York said:
. . . The power to suspend sentence and the power to grant reprieves and
pardons, as understood when the constitution was adopted, are totally distinct
and different in their nature. The former was always a part of the judicial power;
the latter was always a part of the executive power. The suspension of the
sentence simply postpones the judgment of the court temporarily or indefinitely,
but the conviction and liability following it, and the civil disabilities, remain and
become operative when judgment is rendered. A pardon reaches both the
punishment prescribed for the offense and the guilt of the offender. It releases the
punishment, and blots out of existence the guilt, so that in the eye of the law, the
offender is as innocent as if he had never committed the offense. It removes the
penalties and disabilities, and restores him to all his civil rights. It makes him, as
it were, a new man, and gives him a new credit and capacity. (Ex parteGarland,
71 U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128;
20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)
The framers of the federal and the state constitutions were perfectly familiar with
the principles governing the power to grant pardons, and it was conferred by
these instruments upon the executive with full knowledge of the law upon the
subject, and the words of the constitution were used to express the authority
formerly exercised by the English crown, or by its representatives in the colonies.
(Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this power was
understood, it did not comprehend any part of the judicial functions to suspend
sentence, and it was never intended that the authority to grant reprieves and
pardons should abrogate, or in any degree restrict, the exercise of that power in
regard to its own judgments, that criminal courts has so long maintained. The two
powers, so distinct and different in their nature and character, were still left
separate and distinct, the one to be exercised by the executive, and the other by
the judicial department. We therefore conclude that a statute which, in terms,
authorizes courts of criminal jurisdiction to suspend sentence in certain cases
after conviction, a power inherent in such courts at common law, which was
understood when the constitution was adopted to be an ordinary judicial function,
and which, ever since its adoption, has been exercised of legislative power under
the constitution. It does not encroach, in any just sense, upon the powers of the
executive, as they have been understood and practiced from the earliest times.
(Quoted with approval in Directors of Prisons vs. Judge of First Instance of
Cavite [1915], 29 Phil., 265, Carson, J., concurring, at pp. 294, 295.)

In probation, the probationer is in no true sense, as in pardon, a free man. He is not

finally and completely exonerated. He is not exempt from the entire punishment which
the law inflicts. Under the Probation Act, the probationer's case is not terminated by the
mere fact that he is placed on probation. Section 4 of the Act provides that the probation
may be definitely terminated and the probationer finally discharged from supervision
only after the period of probation shall have been terminated and the probation officer
shall have submitted a report, and the court shall have found that the probationer has
complied with the conditions of probation. The probationer, then, during the period of
probation, remains in legal custody subject to the control of the probation officer and
of the court; and, he may be rearrested upon the non-fulfillment of the conditions of
probation and, when rearrested, may be committed to prison to serve the sentence
originally imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is not complete liberty, and
may be far from it. It is really a new mode of punishment, to be applied by the
judge in a proper case, in substitution of the imprisonment and find prescribed by
the criminal laws. For this reason its application is as purely a judicial act as any
other sentence carrying out the law deemed applicable to the offense. The
executive act of pardon, on the contrary, is against the criminal law, which binds
and directs the judges, or rather is outside of and above it. There is thus no
conflict with the pardoning power, and no possible unconstitutionality of the
Probation Act for this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.)
Probation should also be distinguished from reprieve and from commutation of the
sentence. Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144;
150 S. W., 162), is relied upon most strongly by the petitioners as authority in support of
their contention that the power to grant pardons and reprieves, having been vested
exclusively upon the Chief Executive by the Jones Law, may not be conferred by the
legislature upon the courts by means of probation law authorizing the indefinite judicial
suspension of sentence. We have examined that case and found that although the
Court of Criminal Appeals of Texas held that the probation statute of the state in terms
conferred on the district courts the power to grant pardons to persons convicted of
crime, it also distinguished between suspensions sentence on the one hand, and
reprieve and commutation of sentence on the other. Said the court, through Harper, J.:
That the power to suspend the sentence does not conflict with the power of the
Governor to grant reprieves is settled by the decisions of the various courts; it
being held that the distinction between a "reprieve" and a suspension of
sentence is that a reprieve postpones the execution of the sentence to a day
certain, whereas a suspension is for an indefinite time. (Carnal vs. People, 1
Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases
cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold in conflict
with the power confiding in the Governor to grant commutations of punishment,

for a commutations is not but to change the punishment assessed to a less

punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the
Supreme Court of Montana had under consideration the validity of the adult probation
law of the state enacted in 1913, now found in sections 12078-12086, Revised Codes of
1921. The court held the law valid as not impinging upon the pardoning power of the
executive. In a unanimous decision penned by Justice Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite" each had a well understood
meaning at the time our Constitution was adopted, and no one of them was
intended to comprehend the suspension of the execution of the judgment as that
phrase is employed in sections 12078-12086. A "pardon" is an act of grace,
proceeding from the power intrusted with the execution of the laws which
exempts the individual on whom it is bestowed from the punishment the law
inflicts for a crime he has committed (United States vs. Wilson, 7 Pet., 150; 8
Law. ed., 640); It is a remission of guilt (State vs. Lewis, 111 La., 693; 35 So.,
816), a forgiveness of the offense (Cook vs. Middlesex County, 26 N. J. Law,
326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71). "Commutation" is a
remission of a part of the punishment; a substitution of a less penalty for the one
originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich
vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the
withholding of the sentence for an interval of time (4 Blackstone's Commentaries,
394), a postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.],
272), a temporary suspension of execution (Butler vs. State, 97 Ind., 373).
Few adjudicated cases are to be found in which the validity of a statute similar to
our section 12078 has been determined; but the same objections have been
urged against parole statutes which vest the power to parole in persons other
than those to whom the power of pardon is granted, and these statutes have
been upheld quite uniformly, as a reference to the numerous cases cited in the
notes to Woods vs. State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A.,
1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the pardoning power of the
Executive. The pardoning power, in respect to those serving their probationary
sentences, remains as full and complete as if the Probation Law had never been
enacted. The President may yet pardon the probationer and thus place it beyond the
power of the court to order his rearrest and imprisonment. (Riggs vs. United States
[1926],
14 F. [2d], 5, 7.)

2. But while the Probation Law does not encroach upon the pardoning power of the
executive and is not for that reason void, does section 11 thereof constitute, as
contended, an undue delegation of legislative power?
Under the constitutional system, the powers of government are distributed among three
coordinate and substantially independent organs: the legislative, the executive and the
judicial. Each of these departments of the government derives its authority from the
Constitution which, in turn, is the highest expression of popular will. Each has exclusive
cognizance of the matters within its jurisdiction, and is supreme within its own sphere.
The power to make laws the legislative power is vested in a bicameral Legislature
by the Jones Law (sec. 12) and in a unicamiral National Assembly by the Constitution
(Act. VI, sec. 1, Constitution of the Philippines). The Philippine Legislature or the
National Assembly may not escape its duties and responsibilities by delegating that
power to any other body or authority. Any attempt to abdicate the power is
unconstitutional and void, on the principle that potestas delegata non delegare potest.
This principle is said to have originated with the glossators, was introduced into English
law through a misreading of Bracton, there developed as a principle of agency, was
established by Lord Coke in the English public law in decisions forbidding the delegation
of judicial power, and found its way into America as an enlightened principle of free
government. It has since become an accepted corollary of the principle of separation of
powers. (5 Encyc. of the Social Sciences, p. 66.) The classic statement of the rule is
that of Locke, namely: "The legislative neither must nor can transfer the power of
making laws to anybody else, or place it anywhere but where the people have." (Locke
on Civil Government, sec. 142.) Judge Cooley enunciates the doctrine in the following
oft-quoted language: "One of the settled maxims in constitutional law is, that the power
conferred upon the legislature to make laws cannot be delegated by that department to
any other body or authority. Where the sovereign power of the state has located the
authority, there it must remain; and by the constitutional agency alone the laws must be
made until the Constitution itself is charged. The power to whose judgment, wisdom,
and patriotism this high prerogative has been intrusted cannot relieve itself of the
responsibilities by choosing other agencies upon which the power shall be devolved,
nor can it substitute the judgment, wisdom, and patriotism of any other body for those to
which alone the people have seen fit to confide this sovereign trust." (Cooley on
Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in U. S. vs.
Barrias [1908], 11 Phil., 327.) This court posits the doctrine "on the ethical principle that
such a delegated power constitutes not only a right but a duty to be performed by the
delegate by the instrumentality of his own judgment acting immediately upon the matter
of legislation and not through the intervening mind of another. (U. S. vs. Barrias, supra,
at p. 330.)
The rule, however, which forbids the delegation of legislative power is not absolute and
inflexible. It admits of exceptions. An exceptions sanctioned by immemorial practice

permits the central legislative body to delegate legislative powers to local authorities.
(Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918],
39 Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup.
Ct. Rep., 256; State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of our
system of government, that local affairs shall be managed by local authorities, and
general affairs by the central authorities; and hence while the rule is also fundamental
that the power to make laws cannot be delegated, the creation of the municipalities
exercising local self government has never been held to trench upon that rule. Such
legislation is not regarded as a transfer of general legislative power, but rather as the
grant of the authority to prescribed local regulations, according to immemorial practice,
subject of course to the interposition of the superior in cases of necessity."
(Stoutenburgh vs. Hennick, supra.) On quite the same principle, Congress is powered to
delegate legislative power to such agencies in the territories of the United States as it
may select. A territory stands in the same relation to Congress as a municipality or city
to the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct.
Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S.,
138; 24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also
sustained the delegation of legislative power to the people at large. Some authorities
maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing
People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616).
However, the question of whether or not a state has ceased to be republican in form
because of its adoption of the initiative and referendum has been held not to be a
judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U.
S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of such
laws has been looked upon with favor by certain progressive courts, the sting of the
decisions of the more conservative courts has been pretty well drawn. (Opinions of the
Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland
[1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A. [N. S.], 332; Pacific
States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power may be
delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the
Constitution of the Philippines provides that "The National Assembly may by law
authorize the President, subject to such limitations and restrictions as it may impose, to
fix within specified limits, tariff rates, import or export quotas, and tonnage and wharfage
dues." And section 16 of the same article of the Constitution provides that "In times of
war or other national emergency, the National Assembly may by law authorize the
President, for a limited period and subject to such restrictions as it may prescribed, to
promulgate rules and regulations to carry out a declared national policy." It is beyond
the scope of this decision to determine whether or not, in the absence of the foregoing
constitutional provisions, the President could be authorized to exercise the powers
thereby vested in him. Upon the other hand, whatever doubt may have existed has
been removed by the Constitution itself.
The case before us does not fall under any of the exceptions hereinabove mentioned.

The challenged section of Act No. 4221 in section 11 which reads as follows:
This Act shall apply only in those provinces in which the respective provincial
boards have provided for the salary of a probation officer at rates not lower than
those now provided for provincial fiscals. Said probation officer shall be
appointed by the Secretary of Justice and shall be subject to the direction of the
Probation Office. (Emphasis ours.)
In testing whether a statute constitute an undue delegation of legislative power or not, it
is usual to inquire whether the statute was complete in all its terms and provisions when
it left the hands of the legislature so that nothing was left to the judgment of any other
appointee or delegate of the legislature. (6 R. C. L., p. 165.) In the United States vs. Ang
Tang Ho ([1922], 43 Phil., 1), this court adhered to the foregoing rule when it held an act
of the legislature void in so far as it undertook to authorize the Governor-General, in his
discretion, to issue a proclamation fixing the price of rice and to make the sale of it in
violation of the proclamation a crime. (See and cf. Compaia General de Tabacos vs.
Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however,
is limited by another rule that to a certain extent matters of detail may be left to be filled
in by rules and regulations to be adopted or promulgated by executive officers and
administrative boards. (6 R. C. L., pp. 177-179.)
For the purpose of Probation Act, the provincial boards may be regarded as
administrative bodies endowed with power to determine when the Act should take effect
in their respective provinces. They are the agents or delegates of the legislature in this
respect. The rules governing delegation of legislative power to administrative and
executive officers are applicable or are at least indicative of the rule which should be
here adopted. An examination of a variety of cases on delegation of power to
administrative bodies will show that the ratio decidendiis at variance but, it can be
broadly asserted that the rationale revolves around the presence or absence of a
standard or rule of action or the sufficiency thereof in the statute, to aid the
delegate in exercising the granted discretion. In some cases, it is held that the standard
is sufficient; in others that is insufficient; and in still others that it is entirely lacking. As a
rule, an act of the legislature is incomplete and hence invalid if it does not lay down any
rule or definite standard by which the administrative officer or board may be guided in
the exercise of the discretionary powers delegated to it. (See Schecter vs. United States
[1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947;
People ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R.,
1500 and cases cited. See also R. C. L., title "Constitutional Law", sec 174.) In the case
at bar, what rules are to guide the provincial boards in the exercise of their discretionary
power to determine whether or not the Probation Act shall apply in their respective
provinces? What standards are fixed by the Act? We do not find any and none has been
pointed to us by the respondents. The probation Act does not, by the force of any of its
provisions, fix and impose upon the provincial boards any standard or guide in the

exercise of their discretionary power. What is granted, if we may use the language of
Justice Cardozo in the recent case of Schecter, supra, is a "roving commission" which
enables the provincial boards to exercise arbitrary discretion. By section 11 if the Act,
the legislature does not seemingly on its own authority extend the benefits of the
Probation Act to the provinces but in reality leaves the entire matter for the various
provincial boards to determine. In other words, the provincial boards of the various
provinces are to determine for themselves, whether the Probation Law shall apply to
their provinces or not at all. The applicability and application of the Probation Act are
entirely placed in the hands of the provincial boards. If the provincial board does not
wish to have the Act applied in its province, all that it has to do is to decline to
appropriate the needed amount for the salary of a probation officer. The plain language
of the Act is not susceptible of any other interpretation. This, to our minds, is a virtual
surrender of legislative power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the delegation of power to make
the law, which necessarily involves a discretion as to what it shall be, and conferring an
authority or discretion as to its execution, to be exercised under and in pursuance of the
law. The first cannot be done; to the latter no valid objection can be made." (Cincinnati,
W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St., 77, 88. See also,
Sutherland on Statutory Construction, sec 68.) To the same effect are the decision of
this court in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil.,
547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660) andCruz vs.
Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court sustained the
validity of the law conferring upon the Governor-General authority to adjust provincial
and municipal boundaries. In the second case, this court held it lawful for the legislature
to direct non-Christian inhabitants to take up their habitation on unoccupied lands to be
selected by the provincial governor and approved by the provincial board. In the third
case, it was held proper for the legislature to vest in the Governor-General authority to
suspend or not, at his discretion, the prohibition of the importation of the foreign cattle,
such prohibition to be raised "if the conditions of the country make this advisable or if
deceased among foreign cattle has ceased to be a menace to the agriculture and
livestock of the lands."
It should be observed that in the case at bar we are not concerned with the simple
transference of details of execution or the promulgation by executive or administrative
officials of rules and regulations to carry into effect the provisions of a law. If we were,
recurrence to our own decisions would be sufficient. (U. S. vs. Barrias [1908], 11 Phil.,
327; U.S. vs. Molina [1914], 29 Phil., 119; Alegre vs. Collector of Customs [1929], 53
Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez
[1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)
It is connected, however, that a legislative act may be made to the effect as law after it
leaves the hands of the legislature. It is true that laws may be made effective on certain

contingencies, as by proclamation of the executive or the adoption by the people of a

particular community (6 R. C. L., 116, 170-172; Cooley, Constitutional Limitations, 8th
ed., Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the
Supreme Court of the United State ruled that the legislature may delegate a power not
legislative which it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire Ins.
Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to ascertain facts is
such a power which may be delegated. There is nothing essentially legislative in
ascertaining the existence of facts or conditions as the basis of the taking into effect of a
law. That is a mental process common to all branches of the government. (Dowling vs.
Lancashire Ins. Co., supra; In reVillage of North Milwaukee [1896], 93 Wis., 616; 97
N.W., 1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field
vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding the
apparent tendency, however, to relax the rule prohibiting delegation of legislative
authority on account of the complexity arising from social and economic forces at work
in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX; Laski, "The
Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard,
"Squirt-Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147,
152), the orthodox pronouncement of Judge Cooley in his work on Constitutional
Limitations finds restatement in Prof. Willoughby's treatise on the Constitution of the
United States in the following language speaking of declaration of legislative power
to administrative agencies: "The principle which permits the legislature to provide that
the administrative agent may determine when the circumstances are such as require
the application of a law is defended upon the ground that at the time this authority is
granted, the rule of public policy, which is the essence of the legislative act, is
determined by the legislature. In other words, the legislature, as it its duty to do,
determines that, under given circumstances, certain executive or administrative action is
to be taken, and that, under other circumstances, different of no action at all is to be
taken. What is thus left to the administrative official is not the legislative determination of
what public policy demands, but simply the ascertainment of what the facts of the case
require to be done according to the terms of the law by which he is governed."
(Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p. 1637.) In Miller
vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971,
974), it was said: "The efficiency of an Act as a declaration of legislative will must, of
course, come from Congress, but the ascertainment of the contingency upon which the
Act shall take effect may be left to such agencies as it may designate." (See, also, 12
C.J., p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343,
258.) The legislature, then may provide that a contingencies leaving to some other
person or body the power to determine when the specified contingencies has arisen.
But, in the case at bar, the legislature has not made the operation of the Prohibition Act
contingent upon specified facts or conditions to be ascertained by the provincial board.
It leaves, as we have already said, the entire operation or non-operation of the law upon
the provincial board. the discretion vested is arbitrary because it is absolute and
unlimited. A provincial board need not investigate conditions or find any fact, or await

the happening of any specified contingency. It is bound by no rule, limited by no

principle of expendiency announced by the legislature. It may take into consideration
certain facts or conditions; and, again, it may not. It may have any purpose or no
purpose at all. It need not give any reason whatsoever for refusing or failing to
appropriate any funds for the salary of a probation officer. This is a matter which rest
entirely at its pleasure. The fact that at some future time we cannot say when the
provincial boards may appropriate funds for the salaries of probation officers and thus
put the law into operation in the various provinces will not save the statute. The time of
its taking into effect, we reiterate, would yet be based solely upon the will of the
provincial boards and not upon the happening of a certain specified contingency, or
upon the ascertainment of certain facts or conditions by a person or body other than
legislature itself.
The various provincial boards are, in practical effect, endowed with the power of
suspending the operation of the Probation Law in their respective provinces. In some
jurisdiction, constitutions provided that laws may be suspended only by the legislature
or by its authority. Thus, section 28, article I of the Constitution of Texas provides that
"No power of suspending laws in this state shall be exercised except by the legislature";
and section 26, article I of the Constitution of Indiana provides "That the operation of the
laws shall never be suspended, except by authority of the General Assembly." Yet, even
provisions of this sort do not confer absolute power of suspension upon the legislature.
While it may be undoubted that the legislature may suspend a law, or the execution or
operation of a law, a law may not be suspended as to certain individuals only, leaving
the law to be enjoyed by others. The suspension must be general, and cannot be made
for individual cases or for particular localities. In Holden vs. James ([1814], 11 Mass.,
396; 6 Am. Dec., 174, 177, 178), it was said:
By the twentieth article of the declaration of rights in the constitution of this
commonwealth, it is declared that the power of suspending the laws, or the
execution of the laws, ought never to be exercised but by the legislature, or by
authority derived from it, to be exercised in such particular cases only as the
legislature shall expressly provide for. Many of the articles in that declaration of
rights were adopted from the Magna Charta of England, and from the bill of rights
passed in the reign of William and Mary. The bill of rights contains an
enumeration of the oppressive acts of James II, tending to subvert and extirpate
the protestant religion, and the laws and liberties of the kingdom; and the first of
them is the assuming and exercising a power of dispensing with and suspending
the laws, and the execution of the laws without consent of parliament. The first
article in the claim or declaration of rights contained in the statute is, that the
exercise of such power, by legal authority without consent of parliament, is illegal.
In the tenth section of the same statute it is further declared and enacted, that
"No dispensation by non obstante of or to any statute, or part thereof, should be
allowed; but the same should be held void and of no effect, except a

dispensation be allowed of in such statute." There is an implied reservation of

authority in the parliament to exercise the power here mentioned; because,
according to the theory of the English Constitution, "that absolute despotic power,
which must in all governments reside somewhere," is intrusted to the parliament:
1 Bl. Com., 160.
The principles of our government are widely different in this particular. Here the
sovereign and absolute power resides in the people; and the legislature can only
exercise what is delegated to them according to the constitution. It is obvious that
the exercise of the power in question would be equally oppressive to the subject,
and subversive of his right to protection, "according to standing laws," whether
exercised by one man or by a number of men. It cannot be supposed that the
people when adopting this general principle from the English bill of rights and
inserting it in our constitution, intended to bestow by implication on the general
court one of the most odious and oppressive prerogatives of the ancient kings of
England. It is manifestly contrary to the first principles of civil liberty and natural
justice, and to the spirit of our constitution and laws, that any one citizen should
enjoy privileges and advantages which are denied to all others under like
circumstances; or that ant one should be subject to losses, damages, suits, or
actions from which all others under like circumstances are exempted.
To illustrate the principle: A section of a statute relative to dogs made the owner of any
dog liable to the owner of domestic animals wounded by it for the damages without
proving a knowledge of it vicious disposition. By a provision of the act, power was given
to the board of supervisors to determine whether or not during the current year their
county should be governed by the provisions of the act of which that section constituted
a part. It was held that the legislature could not confer that power. The court observed
that it could no more confer such a power than to authorize the board of supervisors of
a county to abolish in such county the days of grace on commercial paper, or to
suspend the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A
similar statute in Missouri was held void for the same reason in State vs. Field ([1853,
17 Mo., 529;59 Am. Dec., 275.) In that case a general statute formulating a road system
contained a provision that "if the county court of any county should be of opinion that the
provisions of the act should not be enforced, they might, in their discretion, suspend the
operation of the same for any specified length of time, and thereupon the act should
become inoperative in such county for the period specified in such order; and thereupon
order the roads to be opened and kept in good repair, under the laws theretofore in
force." Said the court: ". . . this act, by its own provisions, repeals the inconsistent
provisions of a former act, and yet it is left to the county court to say which act shall be
enforce in their county. The act does not submit the question to the county court as an
original question, to be decided by that tribunal, whether the act shall commence its
operation within the county; but it became by its own terms a law in every county not
excepted by name in the act. It did not, then, require the county court to do any act in

order to give it effect. But being the law in the county, and having by its provisions
superseded and abrogated the inconsistent provisions of previous laws, the county
court is . . . empowered, to suspend this act and revive the repealed provisions of the
former act. When the question is before the county court for that tribunal to determine
which law shall be in force, it is urge before us that the power then to be exercised by
the court is strictly legislative power, which under our constitution, cannot be delegated
to that tribunal or to any other body of men in the state. In the present case, the
question is not presented in the abstract; for the county court of Saline county, after the
act had been for several months in force in that county, did by order suspend its
operation; and during that suspension the offense was committed which is the subject of
the present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)
True, the legislature may enact laws for a particular locality different from those
applicable to other localities and, while recognizing the force of the principle
hereinabove expressed, courts in may jurisdiction have sustained the constitutionality of
the submission of option laws to the vote of the people. (6 R.C.L., p. 171.) But option
laws thus sustained treat of subjects purely local in character which should receive
different treatment in different localities placed under different circumstances. "They
relate to subjects which, like the retailing of intoxicating drinks, or the running at large of
cattle in the highways, may be differently regarded in different localities, and they are
sustained on what seems to us the impregnable ground, that the subject, though not
embraced within the ordinary powers of municipalities to make by-laws and ordinances,
is nevertheless within the class of public regulations, in respect to which it is proper that
the local judgment should control." (Cooley on Constitutional Limitations, 5th ed., p.
148.) So that, while we do not deny the right of local self-government and the propriety
of leaving matters of purely local concern in the hands of local authorities or for the
people of small communities to pass upon, we believe that in matters of general of
general legislation like that which treats of criminals in general, and as regards the
general subject of probation, discretion may not be vested in a manner so unqualified
and absolute as provided in Act No. 4221. True, the statute does not expressly state
that the provincial boards may suspend the operation of the Probation Act in particular
provinces but, considering that, in being vested with the authority to appropriate or not
the necessary funds for the salaries of probation officers, they thereby are given
absolute discretion to determine whether or not the law should take effect or operate in
their respective provinces, the provincial boards are in reality empowered by the
legislature to suspend the operation of the Probation Act in particular provinces, the Act
to be held in abeyance until the provincial boards should decide otherwise by
appropriating the necessary funds. The validity of a law is not tested by what has been
done but by what may be done under its provisions. (Walter E. Olsen & Co. vs.
Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)
It in conceded that a great deal of latitude should be granted to the legislature not only
in the expression of what may be termed legislative policy but in the elaboration and

execution thereof. "Without this power, legislation would become oppressive and yet
imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that popular government
lives because of the inexhaustible reservoir of power behind it. It is unquestionable that
the mass of powers of government is vested in the representatives of the people and
that these representatives are no further restrained under our system than by the
express language of the instrument imposing the restraint, or by particular provisions
which by clear intendment, have that effect. (Angara vs. Electoral Commission [1936],
35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should
be borne in mind that a constitution is both a grant and a limitation of power and one of
these time-honored limitations is that, subject to certain exceptions, legislative power
shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful
delegation of legislative authority to the provincial boards and is, for this reason,
unconstitutional and void.
3. It is also contended that the Probation Act violates the provisions of our Bill of Rights
which prohibits the denial to any person of the equal protection of the laws (Act. III, sec.
1 subsec. 1. Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a restraint on all the tree
grand departments of our government and on the subordinate instrumentalities and
subdivision thereof, and on many constitutional power, like the police power, taxation
and eminent domain. The equal protection of laws, sententiously observes the Supreme
Court of the United States, "is a pledge of the protection of equal laws." (Yick Wo vs.
Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs.
North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course,
what may be regarded as a denial of the equal protection of the laws in a question not
always easily determined. No rule that will cover every case can be formulated.
(Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431; 46
Law. ed., 679.) Class legislation discriminating against some and favoring others in
prohibited. But classification on a reasonable basis, and nor made arbitrarily or
capriciously, is permitted. (Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32
Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed.,
666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The
classification, however, to be reasonable must be based on substantial distinctions
which make real differences; it must be germane to the purposes of the law; it must not
be limited to existing conditions only, and must apply equally to each member of the
class. (Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A.,
649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150;
Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377;
31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough
[1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs.

Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas.,
1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)
In the case at bar, however, the resultant inequality may be said to flow from the
unwarranted delegation of legislative power, although perhaps this is not necessarily the
result in every case. Adopting the example given by one of the counsel for the
petitioners in the course of his oral argument, one province may appropriate the
necessary fund to defray the salary of a probation officer, while another province may
refuse or fail to do so. In such a case, the Probation Act would be in operation in the
former province but not in the latter. This means that a person otherwise coming within
the purview of the law would be liable to enjoy the benefits of probation in one province
while another person similarly situated in another province would be denied those same
benefits. This is obnoxious discrimination. Contrariwise, it is also possible for all the
provincial boards to appropriate the necessary funds for the salaries of the probation
officers in their respective provinces, in which case no inequality would result for the
obvious reason that probation would be in operation in each and every province by the
affirmative action of appropriation by all the provincial boards. On that hypothesis, every
person coming within the purview of the Probation Act would be entitled to avail of the
benefits of the Act. Neither will there be any resulting inequality if no province, through
its provincial board, should appropriate any amount for the salary of the probation officer
which is the situation now and, also, if we accept the contention that, for the
purpose of the Probation Act, the City of Manila should be considered as a province and
that the municipal board of said city has not made any appropriation for the salary of the
probation officer. These different situations suggested show, indeed, that while
inequality may result in the application of the law and in the conferment of the benefits
therein provided, inequality is not in all cases the necessary result. But whatever may
be the case, it is clear that in section 11 of the Probation Act creates a situation in which
discrimination and inequality are permitted or allowed. There are, to be sure, abundant
authorities requiring actual denial of the equal protection of the law before court should
assume the task of setting aside a law vulnerable on that score, but premises and
circumstances considered, we are of the opinion that section 11 of Act No. 4221 permits
of the denial of the equal protection of the law and is on that account bad. We see no
difference between a law which permits of such denial. A law may appear to be fair on
its face and impartial in appearance, yet, if it permits of unjust and illegal discrimination,
it is within the constitutional prohibitions. (By analogy, Chy Lung vs. Freeman [1876],
292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law.
ed., 543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware
[1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703;
28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S., 356; 30 Law. ed., 220;
Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed.,
1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55 Law. ed.,
Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62
Law. ed., 1154.) In other words, statutes may be adjudged unconstitutional because of

their effect in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct.
Rep., 475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl.,
944; Ann. Cas., 1912D, 22). If the law has the effect of denying the equal protection of
the law it is unconstitutional. (6 R. C. L. p. 372; Civil Rights Cases, 109 U. S., 3; 3 Sup.
Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs. Montgomery, 94
Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104;
36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the Probation Act, not only may
said Act be in force in one or several provinces and not be in force in other provinces,
but one province may appropriate for the salary of the probation officer of a given year
and have probation during that year and thereafter decline to make further
appropriation, and have no probation is subsequent years. While this situation goes
rather to the abuse of discretion which delegation implies, it is here indicated to show
that the Probation Act sanctions a situation which is intolerable in a government of laws,
and to prove how easy it is, under the Act, to make the guaranty of the equality clause
but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150
154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net
Great reliance is placed by counsel for the respondents on the case of Ocampo vs.
United States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme
Court of the United States affirmed the decision of this court (18 Phil., 1) by declining to
uphold the contention that there was a denial of the equal protection of the laws
because, as held in Missouri vs. Lewis (Bowman vs. Lewis) decided in 1880 (101 U. S.,
220; 25 Law. ed., 991), the guaranty of the equality clause does not require territorial
uniformity. It should be observed, however, that this case concerns the right to
preliminary investigations in criminal cases originally granted by General Orders No. 58.
No question of legislative authority was involved and the alleged denial of the equal
protection of the laws was the result of the subsequent enactment of Act No. 612,
amending the charter of the City of Manila (Act No. 813) and providing in section 2
thereof that "in cases triable only in the court of first instance of the City of Manila, the
defendant . . . shall not be entitled as of right to a preliminary examination in any case
where the prosecuting attorney, after a due investigation of the facts . . . shall have
presented an information against him in proper form . . . ." Upon the other hand, an
analysis of the arguments and the decision indicates that the investigation by the
prosecuting attorney although not in the form had in the provinces was considered
a reasonable substitute for the City of Manila, considering the peculiar conditions of the
city as found and taken into account by the legislature itself.
Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has
reference to a situation where the constitution of Missouri permits appeals to the
Supreme Court of the state from final judgments of any circuit court, except those in
certain counties for which counties the constitution establishes a separate court of
appeals called St. Louis Court of Appeals. The provision complained of, then, is found in

the constitution itself and it is the constitution that makes the apportionment of territorial
jurisdiction.
We are of the opinion that section 11 of the Probation Act is unconstitutional and void
because it is also repugnant to equal-protection clause of our Constitution.
Section 11 of the Probation Act being unconstitutional and void for the reasons already
stated, the next inquiry is whether or not the entire Act should be avoided.
In seeking the legislative intent, the presumption is against any mutilation of a
statute, and the courts will resort to elimination only where an unconstitutional
provision is interjected into a statute otherwise valid, and is so independent and
separable that its removal will leave the constitutional features and purposes of
the act substantially unaffected by the process. (Riccio vs. Hoboken, 69 N. J.
Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in Williams vs. Standard
Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct. Rep., 115;
60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court
stated the well-established rule concerning partial invalidity of statutes in the
following language:
. . . where part of the a statute is void, as repugnant to the Organic Law, while
another part is valid, the valid portion, if separable from the valid, may stand and
be enforced. But in order to do this, the valid portion must be in so far
independent of the invalid portion that it is fair to presume that the Legislative
would have enacted it by itself if they had supposed that they could not
constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86
N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek
Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to make a
complete, intelligible, and valid statute, which carries out the legislative intent.
(Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions must be
eliminated without causing results affecting the main purpose of the Act, in a
manner contrary to the intention of the Legislature. (State vs. A. C. L. R., Co., 56
Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26
L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565;
People vs. Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135;
State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The language used in the
invalid part of a statute can have no legal force or efficacy for any purpose
whatever, and what remains must express the legislative will, independently of
the void part, since the court has no power to legislate. (State vs. Junkin, 85
Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez
[1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S.,
601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)

It is contended that even if section 11, which makes the Probation Act applicable only in
those provinces in which the respective provincial boards provided for the salaries of
probation officers were inoperative on constitutional grounds, the remainder of the Act
would still be valid and may be enforced. We should be inclined to accept the
suggestions but for the fact that said section is, in our opinion, is inseparably linked with
the other portions of the Act that with the elimination of the section what would be left is
the bare idealism of the system, devoid of any practical benefit to a large number of
people who may be deserving of the intended beneficial result of that system. The clear
policy of the law, as may be gleaned from a careful examination of the whole context, is
to make the application of the system dependent entirely upon the affirmative action of
the different provincial boards through appropriation of the salaries for probation officers
at rates not lower than those provided for provincial fiscals. Without such action on the
part of the various boards, no probation officers would be appointed by the Secretary of
Justice to act in the provinces. The Philippines is divided or subdivided into provinces
and it needs no argument to show that if not one of the provinces and this is the
actual situation now appropriate the necessary fund for the salary of a probation
officer, probation under Act No. 4221 would be illusory. There can be no probation
without a probation officer. Neither can there be a probation officer without the probation
system.
Section 2 of the Acts provides that the probation officer shall supervise and visit the
probationer. Every probation officer is given, as to the person placed in probation under
his care, the powers of the police officer. It is the duty of the probation officer to see that
the conditions which are imposed by the court upon the probationer under his care are
complied with. Among those conditions, the following are enumerated in section 3 of the
Act:
That the probationer (a) shall indulge in no injurious or vicious habits;
(b) Shall avoid places or persons of disreputable or harmful character;
(c) Shall report to the probation officer as directed by the court or probation
officers;
(d) Shall permit the probation officer to visit him at reasonable times at his place
of abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the part of the probation
officer concerning his conduct or condition; "(f) Shall endeavor to be employed
regularly; "(g) Shall remain or reside within a specified place or locality;
(f) Shall make reparation or restitution to the aggrieved parties for actual
damages or losses caused by his offense;

(g) Shall comply with such orders as the court may from time to time make; and
(h) Shall refrain from violating any law, statute, ordinance, or any by-law or
regulation, promulgated in accordance with law.
The court is required to notify the probation officer in writing of the period and terms of
probation. Under section 4, it is only after the period of probation, the submission of a
report of the probation officer and appropriate finding of the court that the probationer
has complied with the conditions of probation that probation may be definitely
terminated and the probationer finally discharged from supervision. Under section 5, if
the court finds that there is non-compliance with said conditions, as reported by the
probation officer, it may issue a warrant for the arrest of the probationer and said
probationer may be committed with or without bail. Upon arraignment and after an
opportunity to be heard, the court may revoke, continue or modify the probation, and if
revoked, the court shall order the execution of the sentence originally imposed. Section
6 prescribes the duties of probation officers: "It shall be the duty of every probation
officer to furnish to all persons placed on probation under his supervision a statement of
the period and conditions of their probation, and to instruct them concerning the same;
to keep informed concerning their conduct and condition; to aid and encourage them by
friendly advice and admonition, and by such other measures, not inconsistent with the
conditions imposed by court as may seem most suitable, to bring about improvement in
their conduct and condition; to report in writing to the court having jurisdiction over said
probationers at least once every two months concerning their conduct and condition; to
keep records of their work; make such report as are necessary for the information of the
Secretary of Justice and as the latter may require; and to perform such other duties as
are consistent with the functions of the probation officer and as the court or judge may
direct. The probation officers provided for in this Act may act as parole officers for any
penal or reformatory institution for adults when so requested by the authorities thereof,
and, when designated by the Secretary of Justice shall act as parole officer of persons
released on parole under Act Number Forty-one Hundred and Three, without additional
compensation."
It is argued, however, that even without section 11 probation officers maybe appointed
in the provinces under section 10 of Act which provides as follows:
There is hereby created in the Department of Justice and subject to its
supervision and control, a Probation Office under the direction of a Chief
Probation Officer to be appointed by the Governor-General with the advise and
consent of the Senate who shall receive a salary of four eight hundred pesos per
annum. To carry out this Act there is hereby appropriated out of any funds in the
Insular Treasury not otherwise appropriated, the sum of fifty thousand pesos to
be disbursed by the Secretary of Justice, who is hereby authorized to appoint
probation officers and the administrative personnel of the probation officer under

civil service regulations from among those who possess the qualifications,
training and experience prescribed by the Bureau of Civil Service, and shall fix
the compensation of such probation officers and administrative personnel until
such positions shall have been included in the Appropriation Act.
But the probation officers and the administrative personnel referred to in the foregoing
section are clearly not those probation officers required to be appointed for the
provinces under section 11. It may be said, reddendo singula singulis, that the probation
officers referred to in section 10 above-quoted are to act as such, not in the various
provinces, but in the central office known as the Probation Office established in the
Department of Justice, under the supervision of the Chief Probation Officer. When the
law provides that "the probation officer" shall investigate and make reports to the court
(secs. 1 and 4); that "the probation officer" shall supervise and visit the probationer (sec.
2; sec. 6, par. d); that the probationer shall report to the "probationer officer" (sec. 3, par.
c.), shall allow "the probationer officer" to visit him (sec. 3, par. d), shall truthfully answer
any reasonable inquiries on the part of "the probation officer" concerning his conduct or
condition (sec. 3, par. 4); that the court shall notify "the probation officer" in writing of the
period and terms of probation (sec. 3, last par.), it means the probation officer who is in
charge of a particular probationer in a particular province. It never could have been
intention of the legislature, for instance, to require the probationer in Batanes, to report
to a probationer officer in the City of Manila, or to require a probation officer in Manila to
visit the probationer in the said province of Batanes, to place him under his care, to
supervise his conduct, to instruct him concerning the conditions of his probation or to
perform such other functions as are assigned to him by law.
That under section 10 the Secretary of Justice may appoint as many probation officers
as there are provinces or groups of provinces is, of course possible. But this would be
arguing on what the law may be or should be and not on what the law is. Between is
and ought there is a far cry. The wisdom and propriety of legislation is not for us to pass
upon. We may think a law better otherwise than it is. But much as has been said
regarding progressive interpretation and judicial legislation we decline to amend the law.
We are not permitted to read into the law matters and provisions which are not there.
Not for any purpose not even to save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of the law is not to make the Insular
Government defray the salaries of probation officers in the provinces but to make the
provinces defray them should they desire to have the Probation Act apply thereto. The
sum of P50,000, appropriated "to carry out the purposes of this Act", is to be applied,
among other things, for the salaries of probation officers in the central office at Manila.
These probation officers are to receive such compensations as the Secretary of Justice
may fix "until such positions shall have been included in the Appropriation Act". It was
the intention of the legislature to empower the Secretary of Justice to fix the salaries of
the probation officers in the provinces or later on to include said salaries in an

appropriation act. Considering, further, that the sum of P50,000 appropriated in section
10 is to cover, among other things, the salaries of the administrative personnel of the
Probation Office, what would be left of the amount can hardly be said to be sufficient to
pay even nominal salaries to probation officers in the provinces. We take judicial notice
of the fact that there are 48 provinces in the Philippines and we do not think it is
seriously contended that, with the fifty thousand pesos appropriated for the central
office, there can be in each province, as intended, a probation officer with a salary not
lower than that of a provincial fiscal. If this a correct, the contention that without section
11 of Act No. 4221 said act is complete is an impracticable thing under the remainder of
the Act, unless it is conceded that in our case there can be a system of probation in the
provinces without probation officers.
Probation as a development of a modern penology is a commendable system.
Probation laws have been enacted, here and in other countries, to permit what modern
criminologist call the "individualization of the punishment", the adjustment of the penalty
to the character of the criminal and the circumstances of his particular case. It provides
a period of grace in order to aid in the rehabilitation of a penitent offender. It is believed
that, in any cases, convicts may be reformed and their development into hardened
criminals aborted. It, therefore, takes advantage of an opportunity for reformation and
avoids imprisonment so long as the convicts gives promise of reform. (United States vs.
Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep.,
146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its chief end and
aim. The benefit to the individual convict is merely incidental. But while we believe that
probation is commendable as a system and its implantation into the Philippines should
be welcomed, we are forced by our inescapable duty to set the law aside because of
the repugnancy to our fundamental law.
In arriving at this conclusion, we have endeavored to consider the different aspects
presented by able counsel for both parties, as well in their memorandums as in their
oral argument. We have examined the cases brought to our attention, and others we
have been able to reach in the short time at our command for the study and deliberation
of this case. In the examination of the cases and in then analysis of the legal principles
involved we have inclined to adopt the line of action which in our opinion, is supported
better reasoned authorities and is more conducive to the general welfare. (Smith, Bell &
Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have
declined to be bound by certain adjudicated cases brought to our attention, except
where the point or principle is settled directly or by clear implication by the more
authoritative pronouncements of the Supreme Court of the United States. This line of
approach is justified because:
(a) The constitutional relations between the Federal and the State governments
of the United States and the dual character of the American Government is a
situation which does not obtain in the Philippines;

(b) The situation of s state of the American Union of the District of Columbia with
reference to the Federal Government of the United States is not the situation of
the province with respect to the Insular Government (Art. I, sec. 8 cl. 17 and 10th
Amendment, Constitution of the United States; Sims vs. Rives, 84 Fed. [2d],
871),
(c) The distinct federal and the state judicial organizations of the United States do
not embrace the integrated judicial system of the Philippines (Schneckenburger
vs. Moran [1936], 35 Off. Gaz., p. 1317);
(d) "General propositions do not decide concrete cases" (Justice Holmes in
Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to
keep pace with . . . new developments of times and circumstances" (Chief
Justice Waite in Pensacola Tel. Co. vs. Western Union Tel. Co. [1899], 96 U. S.,
1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142),
fundamental principles should be interpreted having in view existing local
conditions and environment.
Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is,
accordingly, granted. Without any pronouncement regarding costs. So ordered.
EN BANC
[G.R. No. 132164. October 19, 2004]
CIVIL SERVICE COMMISSION, petitioner, vs. ALLYSON BELAGAN, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
When the credibility of a witness is sought to be impeached by proof of his
reputation, it is necessary that the reputation shown should be that which existed before
the occurrence of the circumstances out of which the litigation arose, [1] or at the time of
the trial and prior thereto, but not at a period remote from the commencement of the
suit.[2] This is because a person of derogatory character or reputation can still change or
reform himself.
For our resolution is the petition for review on certiorari of the Court of Appeals
Decision[3] dated January 8, 1998, in CA-G.R. SP. No. 44180, the dispositive portion of
which reads:
WHEREFORE, Resolution No. 966213 dated September 23, 1996 and Resolution No.
972423 dated April 11, 1997 of the respondent Civil Service Commission are hereby set

aside. The complaint against petitioner Allyson Belagan filed by Magdalena Gapuz is
hereby DISMISSED.
The dismissal of petitioner Belagan is lifted and he is hereby ordered to be immediately
reinstated to his position without loss of seniority, retirement, backwages and other
rights and benefits.
SO ORDERED.
The instant case stemmed from two (2) separate complaints filed respectively by
Magdalena Gapuz, founder/directress of the Mother and Child Learning Center, and
Ligaya Annawi, a public school teacher at Fort Del Pilar Elementary School, against
respondent Dr. Allyson Belagan, Superintendent of the Department of Education,
Culture and Sports (DECS), all from Baguio City. Magdalena charged respondent with
sexual indignities and harassment, while Ligaya accused him of sexual harassment and
various malfeasances.
Magdalenas sworn complaint alleges that sometime in March 1994, she filed an
application with the DECS Office in Baguio City for a permit to operate a pre-school.
One of the requisites for the issuance of the permit was the inspection of the school
premises by the DECS Division Office. Since the officer assigned to conduct the
inspection was not present, respondent volunteered his services. Sometime in June
1994, respondent and complainant visited the school. In the course of the inspection,
while both were descending the stairs of the second floor, respondent suddenly placed
his arms around her shoulders and kissed her cheek. Dumbfounded, she muttered, Sir,
is this part of the inspection? Pati ba naman kayo sa DECS wala ng values?
Respondent merely sheepishly smiled. At that time, there were no other people in the
area.
Fearful that her application might be jeopardized and that her husband might harm
respondent, Magdalena just kept quiet.
Several days later, Magdalena went to the DECS Division Office and asked
respondent, Sir, kumusta yung application ko? His reply was Mag-date muna tayo. She
declined, explaining that she is married. She then left and reported the matter to DECS
Assistant Superintendent Peter Ngabit.
Magdalena never returned to the DECS Division Office to follow up her application.
However, she was forced to reveal the incidents to her husband when he asked why the
permit has not yet been released. Thereupon, they went to the office of the respondent.
He merely denied having a personal relationship with Magdalena.

Thereafter, respondent forwarded to the DECS Regional Director his

recommendation to approve Magdalenas application for a permit to operate a preschool.
Sometime in September 1994, Magdalena read from a local newspaper that certain
female employees of the DECS in Baguio City were charging a high-ranking DECS
official with sexual harassment. Upon inquiry, she learned that the official being
complained of was respondent. She then wrote a letter-complaint for sexual indignities
and harassment to former DECS Secretary Ricardo Gloria.
On October 4, 1994, respondent was placed under suspension.
On the part of Ligaya Annawi, she alleged in her complaint that on four separate
occasions, respondent touched her breasts, kissed her cheek, touched her groins,
embraced her from behind and pulled her close to him, his organ pressing the lower
part of her back.
Ligaya also charged respondent with: (1) delaying the payment of the teachers
salaries; (2) failing to release the pay differentials of substitute teachers; (3) willfully
refusing to release the teachers uniforms, proportionate allowances and productivity
pay; and (4) failing to constitute the Selection and Promotion Board, as required by the
DECS rules and regulations.
The DECS conducted a joint investigation of the complaints of Magdalena and
Ligaya. In his defense, respondent denied their charge of sexual harassment. However,
he presented evidence to disprove Ligayas imputation of dereliction of duty.
On January 9, 1995, the DECS Secretary rendered a Joint Decision [4] finding
respondent guilty of four (4) counts of sexual indignities or harassments committed
against Ligaya; and two (2) counts of sexual advances or indignities against Magdalena.
He was ordered dismissed from the service. The dispositive portion of the Joint
Decision reads:
WHEREFORE, foregoing disquisitions duly considered, decision is hereby rendered in
the two above-entitled cases, finding:
a) Respondent Dr. Allyson Belagan, Superintendent of the DECS Baguio City
Schools Division GUILTY of the four counts of sexual indignities or
harassments committed against the person and honor of complainant Miss
Ligaya Annawi, a Baguio City public school teacher, while in the performance
of his official duties and taking advantage of his office. He is,
however, ABSOLVED of all the other charges of administrative
malfeasance or dereliction of duty.

b)

Respondent Baguio City Superintendent Allyson Belagan likewise

GUILTY of the two counts of sexual advances or indignities committed
against the person and honor of complainant Mrs. Magdalena Gapuz, a
private school teacher of Baguio City, while in the performance of his official
duties and taking advantage of his office.

Consequently, respondent Allyson Belagan is HEREBY ORDERED DISMISSED from

the government service, with prejudice to reinstatement and all his retirement benefits
and other remunerations due him are HEREBY DECLARED FORFEITED in favor of
the government.
SO ORDERED.[5]
Upon appeal, the Civil Service Commission (CSC), on September 23, 1996,
promulgated Resolution No. 966213[6] affirming the Decision of the DECS Secretary in
the case filed by Magdalena but dismissing the complaint of Ligaya. The CSC ruled that
respondents transgression against Magdalena constitutes grave misconduct. Thus:
The acts of Belagan are serious breach of good conduct since he was holding a position
which requires the incumbent thereof to maintain a high degree of moral uprightness. As
Division Superintendent, Belagan represents an institution tasked to mold the character
of children. Furthermore, one of his duties is to ensure that teachers in his division
conduct themselves properly and observe the proper discipline. Any improper behavior
on his part will seriously impair his moral ascendancy over the teachers and students
which can not be tolerated. Therefore, his misconduct towards an applicant for a
permit to operate a private pre-school cannot be treated lightly and constitutes
the offense of grave misconduct.
WHEREFORE, respondent Allyson Belagan is hereby found guilty of grave
misconduct and imposed the penalty of DISMISSAL from the service with all the
accessory penalties. The decision of the DECS Secretary is modified accordingly.[7]
On October 29, 1996, respondent seasonably filed a motion for reconsideration,
contending that he has never been charged of any offense in his thirty-seven (37) years
of service. By contrast, Magdalena was charged with several offenses before the
Municipal
Trial Court (MTC) of Baguio City, thus:
1. Criminal Case No. 43416 for LIGHT ORAL DEFAMATION (December 3,
1980)
2. Criminal Case No. 45629 for SLIGHT PHYSICAL INJURIES (May 13, 1982)

3. Criminal Case No. 45630 for GRAVE THREATS (May 13, 1982)
4. Criminal Case No. 45914 for GRAVE THREATS (June 24, 1982)
5. Criminal Case No. 51532 for MALICIOUS MISCHIEF (January 25, 1985)
6. Criminal Case No. 51533 for LIGHT THREATS (January 25, 1985)
7. Criminal Case No. 51556 for GRAVE ORAL DEFAMATION (January 30,
1985)
8. Criminal Case No. 51818 for LIGHT ORAL DEFAMATION (March 18, 1985)
9. Criminal Case No. 51819 for GRAVE ORAL DEFAMATION (March 18, 1985)
10. Criminal Case No. 51820 for MALICIOUS MISCHIEF (March 18, 1985)
11. Criminal Case No. 51821 for UNJUST VEXATION (March 18, 1985)
12. Criminal Case No. 62173 for UNJUST VEXATION (May 29, 1991)
13. Criminal Case No. 62172 for GRAVE ORAL DEFAMATION (May 29, 1991)
14. Criminal Case No. 62754 for GRAVE ORAL DEFAMATION (December 2,
1986)
15. Criminal Case No. 55642 for GRAVE ORAL DEFAMATION (December 2,
1986)
16. Criminal Case No. 55423 for GRAVE ORAL DEFAMATION (October 24,
1986)
17. Criminal Case No. 55846 for GRAVE ORAL DEFAMATION (November 4,
1986)
18. Criminal Case No. 55800 for GRAVE ORAL DEFAMATION (January 7,
1987)
19. Criminal Case No. 57312 for UNJUST VEXATION (November 29, 1987)
20. Criminal Case No. 55643 for SLIGHT PHYSICAL INJURIES (December 13,
1985)
21. Criminal Case No. 53404 for UNJUST VEXATION (December 13, 1985)

22. Criminal Case No. 55422 for UNJUST VEXATION (October 24, 1986) [8]
In addition, the following complaints against Magdalena were filed with the
Barangay Chairmen of Barangay Gabriela Silang and Barangay Hillside, both in Baguio
City:
1. Ordana vs. Gapuz (Brgy. Case No. 11-19-02-A) for GRAVE THREATS,
UNJUST VEXATION, RUMOR MONGERING
2. Teresita De Los Santos vs. Gapuz (Brgy. Case No. 86-8-26-8) for GRAVE
THREATS & ORAL DEFAMATION
3. Mrs. Conchita Ballesteros vs. Gapuz (Brgy. Case No. 029) for ORAL
DEFAMATION and FALSE ACCUSATION
4. Mrs. Clara Baoas vs. Gapuz (Brgy. Case No. 030) for HARASSMENT and
THREATS
5. GABRIELA SILANG TANOD FORCES vs. Gapuz (Case No. 031) for
HABITUAL TROUBLE MAKER
6. Pablo Ortiz vs. Gapuz (November 1, 1979) for ORAL DEFAMATION
7. C. Ballesteros vs. Gapuz (September 11, 1978) for ORAL DEFAMATION
8. Mrs. Liza Ancheta vs. Gapuz (September 27, 1978) for RUMOR
MONGERING
9. Mr. Pananin (Beneco Personnel) (October 8, 1978) for ORAL DEFAMATION
10. Mrs. Minda Valdez vs. Gapuz (November 6, 1978) for ORAL DEFAMATION
11. WOMENS CLUB vs. GAPUZ (February 9, 1979) for ORAL DEFAMATION
12. Vistro Salcedo case (May 8, 1979)
Where Mrs. Gapuz was spreading rumors against Barangay Captain
and Police Chief
13. Demolition Scandal (May 10, 1979)
Where she called all the residents of their Barangay for an emergency
meeting and where she shouted invectives against the residents

14. Incident of June 13, 1979

Mrs. Gapuz shouted invectives against the Barangay Sanitary
Inspector
15. Incident of August 25, 1979
Mrs. Gapuz shouted invectives against the servants of Mr. De Leon
16. Incident of August 26, 1979
Mrs. Gapuz terrorized the council meeting
17. Incident of September 2, 1978
Mrs. Clara Baoas was harassed by Mrs. Gapuz
18. Incident of September 9, 1979
Mrs. Gapuz quarreled with Mrs. C. Ballesteros during the council
meeting
19. Incident of September 10, 1979
Mrs. Gapuz was hurling invectives along her alley in the early morning
20. Incident of September 13, 1979
Mrs. Gapuz tapped electric wire from Mrs. Tessie de los Santos with
the latters consent
21. Incident of September 21, 1979
Mrs. Gapuz was shouting and hurling invectives scandalously around
her residence
22. Incident of September 21, 1979
Mrs. Gapuz was shouting, complaining about alleged poisoned
sardines near the premises of her residence which killed her hen.
23. Incident of September 23, 1979

Mrs. Gapuz was shouting unpleasant words around the neighborhood.

She did not like the actuations of a bayanihan group near the waiting
shed.[9]
Respondent claimed that the numerous cases filed against Magdalena cast doubt
on her character, integrity, and credibility.
In its Resolution No. 972423 [10] dated April 11, 1997, the CSC denied respondents
motion for reconsideration, holding that:
The character of a woman who was the subject of a sexual assault is of minor
significance in the determination of the guilt or innocence of the person accused
of having committed the offense. This is so because even a prostitute or a woman
of ill repute may become a victim of said offense.
As such, the fact that complainant Magdalena Gapuz is shown to have had cases
before the regular courts for various offenses and was condemned by her community
for wrongful behavior does not discount the possibility that she was in fact telling the
truth when she cried about the lecherous advances made to her by the respondent. x x
x
Respondent then filed with the Court of Appeals a petition for review. As stated
earlier, it reversed the CSC Resolutions and dismissed Magdalenas complaint.
The Appellate Court held that Magdalena is an unreliable witness, her character
being questionable. Given her aggressiveness and propensity for trouble, she is not one
whom any male would attempt to steal a kiss. In fact, her record immediately raises an
alarm in any one who may cross her path. [11] In absolving respondent from the charges,
the Appellate Court considered his unblemished service record for 37 years.
Unsatisfied, the CSC, through the Solicitor General, filed the instant petition raising
the following assignments of error:
I. The Supreme Court may rule on factual issues raised on appeal where
the Court of Appeals misappreciated the facts. Furthermore, where the
findings of the Court of Appeals and the trial court are contrary to each
other, the Supreme Court may review the record and evidence. The
Court of Appeals erred in not giving credence to the testimony of
complainant Magdalena Gapuz despite convincing and overwhelming
signs of its truthfulness.
II. The Court of Appeals committed reversible error when it failed to give
due weight to the findings of the DECS, which conducted the

administrative investigation, specifically with respect to the credibility

of the witnesses presented.
III. The Court of Appeals erred in ruling that respondent should be
penalized under Sec. 22 (o) of the Omnibus Rules Implementing Book V
and not Sec. 22 (e) of said rules.[12]
In his comment, respondent maintains that Magdalenas derogatory record
undermines the verity of her charge and that the Court of Appeals is correct in
dismissing it.
The petition is impressed with merit.
The pivotal issue before us is whether complaining witness, Magdalena Gapuz, is
credible. This is a question of fact which, as a general rule, is not subject to this Courts
review.
It is a rule of long standing that factual findings of the Court of Appeals, if supported
by substantial evidence, are conclusive and binding on the parties and are not
reviewable by this Court.[13] This Court is, after all, not a trier of facts. One of the
exceptions, however, is when the findings of the Court of Appeals are contrary to those
of the trial court or a quasi-judicialbody, like petitioner herein.[14]
Here, the Court of Appeals and the CSC are poles apart in their appreciation of
Magdalenas derogatory record. While the former considered it of vital and paramount
importance in determining the truth of her charge, the latter dismissed it as of minor
significance. This contrariety propels us to the elusive area of character and reputation
evidence.
Generally, the character of a party is regarded as legally irrelevant in determining a
controversy.[15] One statutory exception is that relied upon by respondent, i.e., Section
51 (a) 3, Rule 130 of the Revised Rules on Evidence, which we quote here:
SEC. 51. Character evidence not generally admissible; exceptions.
(a) In Criminal Cases:
xxxxxx
(3) The good or bad moral character of the offended party may be
proved if it tends to establish in any reasonable degree the probability
or improbability of the offense charged.

It will be readily observed that the above provision pertains only to criminal cases,
not to administrative offenses. And even assuming that this technical rule of evidence
can be applied here, still, we cannot sustain respondents posture.
Not every good or bad moral character of the offended party may be proved under
this provision. Only those which would establish the probability or improbability of the
offense charged. This means that the character evidence must be limited to the traits
and characteristics involved in the type of offense charged. [16] Thus, on a charge of rape
- character for chastity, on a charge of assault - character for peaceableness or
violence, and on a charge of embezzlement - character for honesty. [17] In one rape case,
where it was established that the alleged victim was morally loose and apparently
uncaring about her chastity, we found the conviction of the accused doubtful. [18]
In the present administrative case for sexual harassment, respondent did not offer
evidence that has a bearing on Magdalenas chastity. What he presented are charges
for grave oral defamation, grave threats, unjust vexation, physical injuries, malicious
mischief, etc. filed against her. Certainly, these pieces of evidence are inadmissible
under the above provision because they do not establish the probability or improbability
of the offense charged.
Obviously, in invoking the above provision, what respondent was trying to establish
is Magdalenas lack of credibility and not the probability or the improbability of the
charge. In this regard, a different provision applies.
Credibility means the disposition and intention to tell the truth in the testimony given.
It refers to a persons integrity, and to the fact that he is worthy of belief. [19] A witness
may be discredited by evidence attacking his general reputation for truth,
[20]
honesty[21] or integrity.[22] Section 11, Rule 132 of the same Revised Rules on
Evidence reads:
SEC. 11. Impeachment of adverse partys witness. A witness may be impeached by the
party against whom he was called, by contradictory evidence, by evidence that his
general reputation for truth, honesty, or integrity is bad, or by evidence that he has
made at other times statements inconsistent with his present testimony, but not by
evidence of particular wrongful acts, except that it may be shown by the examination
of the witness, or the record of the judgment, that he has been convicted of an
offense.
Although she is the offended party, Magdalena, by testifying in her own behalf,
opened herself to character or reputation attack pursuant to the principle that a party
who becomes a witness in his own behalf places himself in the same position as
any other witness, and may be impeached by an attack on his character or
reputation.[23]

With the foregoing disquisition, the Court of Appeals is correct in holding that the
character or reputation of a complaining witness in a sexual charge is a proper subject
of inquiry. This leads us to the ultimate question is Magdalenas derogatory record
sufficient to discredit her credibility?
A careful review of the record yields a negative answer.
First, most of the twenty-two (22) cases filed with the MTC of Baguio City relate to
acts committed in the 80s, particularly, 1985 and 1986. With respect to the complaints
filed with the Chairmen of Barangay Gabriela Silang and Barangay Hillside, the acts
complained of took place in 1978 to 1979. In the instant administrative case, the offense
was committed in 1994. Surely, those cases and complaints are no longer reliable
proofs of Magdalenas character or reputation. The Court of Appeals, therefore, erred in
according much weight to such evidence.Settled is the principle that evidence of
ones character or reputation must be confined to a time not too remote from the
time in question.[24] In other words, what is to be determined is the character or
reputation of the person at the time of the trial and prior thereto, but not at a
period remote from the commencement of the suit. [25] Hence, to say that
Magdalenas credibility is diminished by proofs of tarnished reputation existing almost a
decade ago is unreasonable. It is unfair to presume that a person who has wandered
from the path of moral righteousness can never retrace his steps again. Certainly, every
person is capable to change or reform.
Second, respondent failed to prove that Magdalena was convicted in any of the
criminal cases specified by respondent. The general rule prevailing in a great majority of
jurisdictions is that it is not permissible to show that a witness has been arrested or
that he has been charged with or prosecuted for a criminal offense, or confined in
jail for the purpose of impairing his credibility.[26] This view has usually been based upon
one or more of the following grounds or theories: (a) that a mere unproven charge
against the witness does not logically tend to affect his credibility, (b) that innocent
persons are often arrested or accused of a crime, (c) that one accused of a crime is
presumed to be innocent until his guilt is legally established, and (d) that a witness may
not be impeached or discredited by evidence of particular acts of misconduct.
[27]
Significantly, the same Section 11, Rule 132 of our Revised Rules on Evidence
provides that a witness may not be impeached by evidence of particular wrongful acts.
Such evidence is rejected because of the confusion of issues and the waste of time that
would be involved, and because the witness may not be prepared to expose the falsity
of such wrongful acts.[28] As it happened in this case, Magdalena was not able to explain
or rebuteach of the charges against her listed by respondent.
But more than anything else, what convinces us to sustain the Resolution of the
CSC is the fact that it is supported by substantial evidence. As aptly pointed out by the
Solicitor General, Magdalena testified in a straightforward, candid and spontaneous

manner. Her testimony is replete with details, such as the number of times she and
respondent inspected the pre-school, the specific part of the stairs where respondent
kissed her, and the matter about her transient boarders during summer. Magdalena
would not have normally thought about these details if she were not telling the truth. We
quote her testimony during the cross-examination conducted by DECS Assistant
Secretary Romeo Capinpin and Undersecretary Antonio Nachura, thus:
Q Was there any conversation between you and Dr. Belagan during the
inspection on the first floor and the second floor?
A There was, sir. It was a casual conversation that we had with regard to my
family, background, how the school came about, how I started with the
project. That was all, sir.
Q Nothing about any form of sexual harassment, in words or in deeds?
A Sir, because he inspected the second floor twice, sir. We went up to the stairs
twice, sir.
Q Why?
A I really dont know what was the reason behind, sir. But on the second
inspection, sir, I told him that as of that time I had some transients with me. I
was making use of the premises for transients because that was summer
then, sir. And I already started paying the place so I said, Sir, I have some
transients with me in the evening and he said, You know Mrs. Gapuz, I am
interested to stay in one of the rooms as one your boarders. But I
respectfully declined saying, Sir, I think for delicadeza I cannot accept you.
Not that I dont want you to be here but people might think that I am keeping
you here and that would prejudice my permit, sir.
ASEC R. CAPINPIN:
Q When did the alleged kissing occur? Was it during the first time that
you went up with him or the second time?
A No, sir, on the second time, sir.
Q Second time?
A Yes, sir. We were going down, sir.
Q And you were going down?

A Yes, sir.
Q Do you recall what portion of the stairs where you were during the
alleged kissing?
A Sir, on the topmost of the stairs.
Q Before you went down?
A Yes, sir. At the topmost because there is a base floor going up to the
stairs and it has 16 steps.
Q So, it was not on the 16th step but still on the topmost?
A Yes sir.
Q Part of the floor of the building?
A Yes, sir. Topmost, sir?
ASEC R. CAPINPIN:
Q Will you kindly tell us your relative position at that time?
A Sir, on the second time that we went up and I mentioned about these
transients that I had then and he wanted to stay in the place in one of
the rooms and then I declined and I was still showing the rooms
simultaneously. On the last, the biggest room that I had, he said, No.
Never mind, I am not going to see that anymore. So he waited for me
there and upon reaching the place, as I was to step down on the first
step going down, he placed his arm and held me tightly and planted
the kiss on my cheek, sir.
Q You said that he wanted to stay in one of the rooms?
A Yes, sir, as a boarder.
Q Is that room used for transients?
A During that time, sir, during the summertime, I made use of the time to get
some transients.
Q And he was telling you that he wanted to occupy one of the rooms?

A Yes, but I declined, sir for delicadeza.

Q At that time, there were no transients yet.
A When he came over for the inspection sir, nobody was there. [29]
The above testimony does not stand in isolation. It is corroborated by Peter Ngabit,
DECS Assistant Division Superintendent. Ngabit testified that Magdalena reported to
him that respondent kissed her and asked her for a date.
Q I would like to call your attention to Exhibit A which is the affidavit of Mrs.
Magdalena B. Gapuz, particularly item no. 8, and may I read for your
information That the Monday after the incident, I went to the DECS Division
Office expecting to get favorable recommendation from the DECS Regional
Office for the issuance of my permit. That I proceeded to the
Superintendent and asked him, Sir, kumusta yung application ko and he
said, mag date muna tayo but I refused and explained that I am married,
after which I proceeded to the Office of Asst. Superintendent Peter Ngabit
to relate the incident and then left the Division Office. Do you remember if
Mrs. Gapuz went to your Office on the particular day?
A Yes, sir.
Q What time was that?
A I cannot remember, sir.
Q Was it morning, afternoon?
A I think it was in the morning, sir.
Q Morning.
A Yes, sir.
Q Early morning?
A About noon, sir.
Q What transpired between you and Mrs. Gapuz in your office?
A When she came to my Office, she was relating about that and she was even
insulting me saying among others that I was a useless fixture in that Office

because I cannot do anything with the processing of her paper or

application.
Q It says here that she would relate the incident to you. Did she relate any
incident?
A Yes, she did sir.
Q What was that incident all about?
A She was saying that when Mr. Belagan went to visit her school, he stole
a kiss from her and that she was saying that when she asked Supt.
Belagan for her papers, she was asked for a date before the
Indorsement. After that, she left.[30]
With Magdalenas positive testimony and that of Ngabit, how can we disregard the
findings of the DECS and the CSC? Surely, we cannot debunk it simply because of the
Court of Appeals outdated characterization of Magdalena as a woman of bad reputation.
There are a number of cases where the triers of fact believe the testimony of a witness
of bad character[31]and refuse to believe one of good character.[32] As a matter of fact,
even a witness who has been convicted a number of times is worthy of belief, when he
testified in a straightforward and convincing manner.[33]
At this juncture, it bears stressing that more than anybody else, it is the DECS
investigating officials who are in a better position to determine whether Magdalena is
telling the truth considering that they were able to hear and observe her deportment and
manner of testifying.[34]
In reversing the CSCs Resolutions, the Court of Appeals ruled that there is ample
evidence to show that Magdalena had a motive in accusing respondent, i.e., to pressure
him to issue a permit. This is unconvincing. The record shows that respondent had
already issued the permit when Magdalena filed her letter-complaint. Indeed, she had
no more reason to charge respondent administratively, except of course to vindicate her
honor.
Petitioner prays that we sustain its ruling penalizing respondent for grave
misconduct and not merely for disgraceful or immoral conduct which is punishable by
suspension for six (6) months and one (1) day to one (1) year for the first offense.
[35]
Misconduct means intentional wrongdoing or deliberate violation of a rule of law or
standard of behavior, especially by a government official. [36] To constitute an
administrative offense, misconduct should relate to or be connected with the
performance of the official functions and duties of a public officer. [37]In grave misconduct
as distinguished from simple misconduct, the elements of corruption, clear intent to
violate the law or flagrant disregard of established rule, must be manifest. [38]Corruption

as an element of grave misconduct consists in the act of an official or fiduciary person

who unlawfully and wrongfully uses his station or character to procure some benefit for
himself or for another person, contrary to duty and the rights of others. [39] This is
apparently present in respondents case as it concerns not only a stolen kiss but also a
demand for a date, an unlawful consideration for the issuance of a permit to operate a
pre-school. Respondents act clearly constitutes grave misconduct, punishable by
dismissal.[40]
We are, however, not inclined to impose the penalty of dismissal from the service.
Respondent has served the government for a period of 37 years, during which, he made
a steady ascent from an Elementary Grade School Teacher to Schools Division
Superintendent. In devoting the best years of his life to the education department, he
received numerous awards.[41]This is the first time he is being administratively charged.
He is in the edge of retirement. In fact, he had filed his application for retirement when
Magdalena filed her complaint. Section 16, Rule XIV, of the Rules Implementing Book V
of Executive Order No. 292 provides:
SEC. 16. In the determination of penalties to be imposed, mitigating and
aggravating circumstances may be considered. x x x.
The mitigating circumstances are enumerated in Section 53, Rule IV, of the Uniform
Rules on Administrative Cases in the Civil Service, [42] which reads in part:
SEC. 53. Extenuating, Mitigating, Aggravating, or Alternative Circumstances. In the
determination of the penalties to be imposed, mitigating, aggravating and alternative
circumstances attendant to the commission of the offense shall be considered.
The following circumstances shall be appreciated:
xxxxxx
j. length of service
xxxxxx
l. and other analogous cases.
Conformably with our ruling in a similar case of sexual harassment, [43] and
respondents length of service, unblemished record in the past and numerous awards,
[44]
the penalty of suspension from office without pay for one (1) year is in order.
While we will not condone the wrongdoing of public officers and employees,
however, neither will we negate any move to recognize and remunerate their lengthy
service in the government.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals

dated January 8, 1998 in CA-G.R. SP No. 44180 is REVERSED. The CSC Resolution
Nos. 966213 and 972423 are AFFIRMED, subject to the modification that respondent
ALLYSON BELAGAN is SUSPENDED from office without pay for ONE (1) YEAR, with
full credit of his preventive suspension.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION
G.R. Nos. 172532 172544-45

November 20, 2013

PRIMO C. MIRO, in his capacity as Deputy Ombudsman for the Visayas, Petitioner,
vs.
MARILYN MENDOZA VDA. DE EREDEROS, CATALINA ALINGASA and PORFERIO
I. MENDOZA,Respondents.
DECISION
BRION, J.:
We resolve the petition for review on certiorari 1 assailing the decision2 dated November
22 2005 and the resolution3 dated April 21 2006 of the Court of Appeals CA) in CA-G.R.
SP Nos. 83149 83150 and 83576.
The CA decision reversed and set aside the joint decision 4 dated January 9 2004 of the
Deputy Ombudsman for the Visayas (Deputy Ombudsman), Primo C. Miro in OMB-V-A02-0414-H finding respondents Marilyn Mendoza Vda. de Erederos Catalina Alingasa
and Porferio I Mendoza guilty of the administrative charge of Grave Misconduct. The
Deputy Ombudsman also found Oscar Peque guilty of Simple Misconduct.
The Factual Antecedents
As culled from the records, the antecedents of the present case are as follows:
Mendoza, Director of the Regional Office VII of the Land Transportation Office, Cebu
City (LTO Cebu), Erederos, Mendoza's niece and secretary, Alingasa, LTO clerk, and
Peque, Officer-in-Charge, Operation Division of LTO Cebu, were administratively
charged with Grave Misconduct before the Deputy Ombudsman by private
complainants, namely: Maricar G Huete (Liaison Officer of GCY Parts), Ernesto R

Cantillas (Liaison Officer of Isuzu Cebu, Inc.), Leonardo Villaraso (General Manager of
TBS Trading), and Romeo C. Climaco (Corporate Secretary of Penta Star). 5 They were
likewise charged with criminal complaints for violation of Section 3(e) of Republic Act
No. 3019, otherwise known as the Anti Graft and Corrupt Practices Act."
The administrative and criminal charges arose from the alleged anomalies in the
distribution at the LTO Cebu of confirmation certificates, an indispensable requirement
in the processing of documents for the registration of motor vehicle with the LTO.
Specifically, the private complainants accused Alingasa of selling the confirmation
certificates, supposed to be issued by the LTO free of charge. This scheme allegedly
existed upon Mendoza's assumption in office as Regional Director of LTO Cebu. They
observed that:
(1) Confirmation certificates were sold for the amount of P2,500.00 per pad
without official receipt;
(2) Alingasa would usually remit the collections to Erederos who would, in turn,
remit all the collections to Mendoza;6
(3) The official receipt for the processing of the confirmation certificates issued to
the private complainants acknowledged only the amount of P40.00 which they
paid for each engine, chassis or new vehicle, as MR. (Miscellaneous ReceiptLTO Form 67);
(4) Said amount was separate and distinct from the P2,500.00 required to be
paid for each pad;
(5) The official receipt also served as the basis for the individual stock/sales
reports evaluation of Erederos;7 and
(6) The confirmation certificates processed during the previous administration
were no longer honored; thus, the private complainants were constrained to
reprocess the same by purchasing new ones.
The NBI/Progress report submitted to the LTO Manila also revealed that the
confirmation certificates were given to the representatives of car dealers, who were
authorized to supply the needed data therein. In the Requisition and Issue Voucher, it
was Roque who received the forms. On August 19, 2002, Cantillas executed an Affidavit
of Desi stance on the ground that he was no longer interested in prosecuting the case.
On September 25, 2002, the Deputy Ombudsman ordered the respondents to file their
respective counter-affidavits. The respondents complied with the order and made the
required submission.

On December 12, 2002, the case was called for preliminary conference. At the
conference, the respondents, thru their counsels, manifested their intention to submit
the case for decision on the basis of the evidence on record after the submission of their
memoranda/position papers.
In the interim, additional administrative and criminal complaints for the same charges
were filed by Rova Carmelotes (Liaison Officer of ZC Trading Center), Mildred Regidor
(Liaison Officer of Grand Ace Commercial), Estrella dela Cerna (Liaison Officer of JRK
Automotive Supply), and Vevencia Pedroza (Liaison Officer of Winstar Motor Sales)
against the respondents. These new complaints were consolidated with the complaints
already then pending.
In their complaints, the new complainants commonly alleged that they had to
pay P2,500.00 per pad to Alingasa before they could be issued confirmation certificates
by the LTO Cebu. Alingasa would give her collections to Erederos and to Mendoza.
When they protested, Erederos and Alingasa pointed to Mendoza as the source of the
instructions. They were also told that the confirmation certificates processed during the
previous administration would no longer be honored under Mendoza s administration;
hence, they had to buy new sets of confirmation certificates to process the registration
of their motor vehicles with the LTO.
In his counter-affidavit, Mendoza vehemently denied the accusations. He alleged that
the confirmation certificates actual distribution and processing were assigned to
Alingasa; the processing entails the payment of P40.00 per confirmation certificate, as
administrative fee; payment is only made when the confirmation certificates are filled up
and submitted for processing with the LTO, not upon issuance; and he did not give any
instructions to impose additional fees for their distribution.
He also alleged that the case against him was instigated by Assistant Secretary Roberto
T. Lastimosa of the LTO Head Office so that a certain Atty. Manuel I way could replace
him as Regional Director of the L TO Cebu.8
Mendoza additionally submitted the affidavits of desistance of Carmelotes and Dela
Cerna. Carmelotes testified that she has no evidence to support her allegations against
Mendoza. Dela Cerna, on the other hand, stated that she was merely told to sign a
document which turned out to be an affidavit-complaint against the respondents.
Subsequently, however, Dela Cerna executed a second affidavit, retracting her previous
statements and narrating how she was threatened by Peque to sign an affidavit of
desistance (1st affidavit).
Erederos and Alingasa commonly contended that they did not collect, demand and
receive any money from the complainants as payment for the confirmation certificates.

Erederos stated that the case against her was initiated by Huete because she found
several discrepancies in the documents she had processed. According to her, the
present case was Huete s ploy to avoid any liability.
For their part, Alingasa stressed that her act of maintaining a control book for the
releases of the confirmation certificate pads negates her liability, while Peque denied
any participation in the distribution and sale of the confirmation certificates.
On January 9, 2004, the Deputy Ombudsman rendered a joint decision on the
administrative aspect of the cases filed against the respondents, and a joint resolution
on the criminal aspect of the cases.
The Deputy Ombudsman s Ruling
In its joint decision, the Deputy Ombudsman found Mendoza, Erederos and Alingasa
guilty of grave misconduct and imposed the penalty of dismissal from the service.
Peque, on the other hand, was only found guilty of simple misconduct and was meted
the penalty of reprimand.
The Deputy Ombudsman believed the complainants allegations that Alingasa
collected P2,500.00 for the issuance of confirmation certificates and, thereafter, remitted
the collections to Erederos and to Mendoza. He relied largely on the affidavits
supporting the respondents guilt. He found the affidavits and the NBI/Progress report
strong enough to establish the respondents guilt. The Deputy Ombudsman also
explained that while the distribution of confirmation certificates to authorized car dealers
is not prohibited, the demand and the collection of payment during their distribution are
anomalous.
The respondents separately moved for reconsideration, but the Deputy Ombudsman
denied their motions on March 5, 2004.9
The respondents separately appealed to the CA to challenge the rulings against them.
The CAs Ruling
On November 22, 2005, the CA granted the respondents petition and reversed the
Deputy Ombudsman s joint decision in the administrative aspect. The CA ruled that the
Deputy Ombudsman s finding of grave misconduct was not supported by substantial
evidence because the affidavits, on which the decision was mainly anchored, were not
corroborated by any other documentary evidence. Additionally, the affiants did not
appear during the scheduled hearings. The CA also found that the affiants failed to
categorically specify that the respondents personally demanded from them the payment
of P2,500.00 -an allegation that the appellate court deemed material in establishing their
personal knowledge. Without this allegation of personal knowledge, the CA held that the

statements in the affidavits were hearsay and, thus, should not be given any evidentiary
weight. The dispositive portion of the decision reads:
WHEREFORE, in light of the foregoing premises, the consolidated petitions are
GRANTED and accordingly the assailed Joint Decision dated January 9, 2004
(administrative aspect of the cases filed by the private respondents) is REVERSED and
SET ASIDE.
Consequently, the administrative charges against petitioners are DISMISSED for lack of
merit.
With respect to the assailed Joint Resolution also dated January 9, 2004 (criminal
aspect) issued by the public respondent, this Court has no jurisdiction to review the
same.10
The Deputy Ombudsman moved for the reconsideration of the decision, but the CA
denied the motion in its resolution of April 21, 2006. The denial led to the filing of the
present petition.
The Petitioners Arguments
The Deputy Ombudsman posits that the evidence adduced by the complainants
satisfied the requisite quantum of proof. He argues that the complainants personal
knowledge can be gleaned from the preface of their narration; hence, their affidavits
could not have been hearsay. Their affidavits read:
3. That in doing my job, I have noticed and witnessed the following anomalies
concerning the processing of vehicle registration, x x x, as follows:
a. That in order to secure the forms of Confirmation of Certificates, you have to
buy the same at the present price of P2,500.00 per pad from Catalina Alingasa,
an L TO personnel, who will remit her collections to a certain Marilyn Mendoza
Vda. de Erederos, a niece and the Secretary of the Regional Director, Porferio
Mendoza;
b. That Confirmation Certificates processed during previous administration would
not be honored and under such situations, they would require that the same be
reprocessed which means that we have to buy and use the new forms supplied
by the present administration.11
The Deputy Ombudsman also argues that his joint decision was not solely based on the
complainants affidavits since he also took into account the NBI/Progress report, which
uncovered the alleged anomalies. He posits that these pieces of evidence, taken

together, more than satisfy the required quantum of proof to hold the respondents
administratively liable for grave misconduct.
The Case for the Respondents
In their respective comments, the respondents separately argue that the complainants
statements in their affidavits lack material details and particulars, particularly on the
time, the date, and the specific transactions.
They commonly alleged that the affidavits, which contained general averments, and the
NBI/Progress report that was based on the same affidavits, failed to meet the quantum
of proof required to hold them administratively liable.
For his part, Mendoza argues that since the affidavits failed to categorically state that
the complainants personally witnessed the transfer of money from Alingasa to Erederos
and eventually to him, his participation in the anomalous scheme has not been
sufficiently shown; hence, he should not have been found liable.
The Issue
The case presents to us the issue of whether the CA committed a reversible error in
dismissing the administrative charge against the respondents.
The Court's Ruling
We deny the petition. The CA committed no reversible error in setting aside the findings
and conclusions of the Deputy Ombudsman on the ground that they were not supported
by substantial evidence.
Doctrine of conclusiveness of administrative findings of fact is not absolute
It is well settled that findings of fact by the Office of the Ombudsman are conclusive
when supported by substantial evidence. 12 Their factual findings are generally accorded
with great weight and respect, if not finality by the courts, by reason of their special
knowledge and expertise over matters falling under their jurisdiction.
This rule was reiterated in Cabalit v. Commission on Audit-Region VII, 13 where we held
that: When the findings of fact of the Ombudsman are supported by substantial
evidence, it should be considered as conclusive. This Court recognizes the expertise
and independence of the Ombudsman and will avoid interfering with its findings absent
a finding of grave abuse of discretion. Hence, being supported by substantial evidence,
we find no reason to disturb the factual findings of the Ombudsman which are affirmed
by the CA.

This rule on conclusiveness of factual findings, however, is not an absolute one. Despite
the respect given to administrative findings of fact, the CA may resolve factual issues,
review and re-evaluate the evidence on record and reverse the administrative agency s
findings if not supported by substantial evidence. Thus, when the findings of fact by the
administrative or quasi-judicial agencies (like the Office of the Ombudsman/Deputy
Ombudsman) are not adequately supported by substantial evidence, they shall not be
binding upon the courts.14
In the present case, the CA found no substantial evidence to support the conclusion that
the respondents are guilty of the administrative charges against them. Mere allegation
and speculation is not evidence, and is not equivalent to proof. 15 Since the Deputy
Ombudsmans findings were found wanting by the CA of substantial evidence, the same
shall not bind this Court.
Parameters of a judicial review under a Rule 45 petition
a. Rule 45 petition is limited to questions of law
Before proceeding to the merits of the case, this Court deems it necessary to
emphasize that a petition for review under Rule 45 is limited only to questions of law.
Factual questions are not the proper subject of an appeal by certiorari. This Court will
not review facts, as it is not our function to analyze or weigh all over again evidence
already considered in the proceedings below. As held in Diokno v. Hon. Cacdac, 16 a reexamination of factual findings is outside the province of a petition for review on
certiorari to wit:
It is aphoristic that a re-examination of factual findings cannot be done through a
petition for review on certiorari under Rule 45 of the Rules of Court because as earlier
stated, this Court is not a trier of facts. xxx The Supreme Court is not duty-bound to
analyze and weigh again the evidence considered in the proceedings below. This is
already outside the province of the instant Petition for Certiorari.
There is a question of law when the doubt or difference arises as to what the law is on a
certain set of facts; a question of fact, on the other hand, exists when the doubt or
difference arises as to the truth or falsehood of the alleged facts. 17 Unless the case falls
under any of the recognized exceptions, we are limited solely to the review of legal
questions.18
b. Rule 45 petition is limited to errors of the appellate court
Furthermore, the "errors" which we may review in a petition for review on certiorari are
those of the CA, and not directly those of the trial court or the quasi-judicial agency,
tribunal, or officer which rendered the decision in the first instance. 19 It is imperative that
we refrain from conducting further scrutiny of the findings of fact made by trial courts,

lest we convert this Court into a trier of facts. As held in Reman Recio v. Heirs of the
Spouses Agueda and Maria Altamirano etc. et al. 20 our review is limited only to the
errors of law committed by the appellate court, to wit:
Under Rule 45 of the Rules of Court, jurisdiction is generally limited to the review of
errors of law committed by the appellate court. The Supreme Court is not obliged to
review all over again the evidence which the parties adduced in the court a quo. Of
course, the general rule admits of exceptions, such as where the factual findings of the
CA and the trial court are conflicting or contradictory.
In Montemayor v. Bundalian,21 this Court laid down the guidelines for the judicial review
of decisions rendered by administrative agencies in the exercise of their quasi-judicial
powers, as follows:
First, the burden is on the complainant to prove by substantial evidence the allegations
in his complaint. Substantial evidence is more than a mere scintilla of evidence. It
means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion, even if other minds equally reasonable might conceivably opine
otherwise. Second, in reviewing administrative decisions of the executive branch of the
government, the findings of facts made therein are to be respected so long as they are
supported by substantial evidence. Hence, it is not for the reviewing court to weigh the
conflicting evidence, determine the credibility of witnesses, or otherwise substitute its
judgment for that of the administrative agency with respect to the sufficiency of
evidence.
Third, administrative decisions in matters within the executive jurisdiction can only be
set aside on proof of gross abuse of discretion, fraud, or error of law. These principles
negate the power of the reviewing court to re-examine the sufficiency of the evidence in
an administrative case as if originally instituted therein, and do not authorize the court to
receive additional evidence that was not submitted to the administrative agency
concerned. [emphases ours]
The present petition directly raises, as issue, the propriety of the CA s reversal of the
Deputy Ombudsman s decision that found the respondents guilty of grave misconduct.
While this issue may be one of law, its resolution also requires us to resolve the
underlying issue of whether or not substantial evidence exists to hold the respondents
liable for the charge of grave misconduct. The latter question is one of fact, but a review
is warranted considering the conflicting findings of fact of the Deputy Ombudsman and
of the CA. Accordingly, we now focus on and assess the findings of fact of the Deputy
Ombudsman and of the CA for their merits.
The Deputy Ombudsmans appreciation of evidence

The Deputy Ombudsman found the respondents guilty of grave misconduct based on
the affidavits submitted by the complainants and the NBI/Progress report. In giving
credence to the affidavits, the Deputy Ombudsman ruled that the complainants have
amply established their accusations by substantial evidence.
The CAs appreciation of evidence
The CA, on the other hand, reversed the Deputy Ombudsman s findings and ruled that
no substantial evidence exists to support the latters decision as the affidavits upon
which said decision was based are hearsay evidence. It found that the affidavits lack the
important element of personal knowledge and were not supported by corroborating
evidence.
We agree with the CA. The findings of fact of the Deputy Ombudsman are not
supported by substantial evidence on record.
Substantial evidence, quantum of proof in administrative cases
Substantial evidence is defined as such amount of relevant evidence which a
reasonable mind might accept as adequate to support a conclusion. It is more than a
mere scintilla of evidence.22 The standard of substantial evidence is satisfied when there
is reasonable ground to believe, based on the evidence submitted, that the respondent
is responsible for the misconduct complained of. It need not be overwhelming or
preponderant, as is required in an ordinary civil case, 23 or evidence beyond reasonable
doubt, as is required in criminal cases, but the evidence must be enough for a
reasonable mind to support a conclusion.
Section 27 of The Ombudsman Act of 198924 provides that:
Findings of fact by the Officer of the Ombudsman when supported by substantial
evidence are conclusive. Any order, directive or decision imposing the penalty of public
censure or reprimand, suspension of not more than one (1) month's salary shall be final
and unappealable. [emphasis ours]
The only pieces of evidence presented by the complainants to establish the
respondents' guilt of the act charged are: (1) their complaint-affidavits and the (2)
NBl/Progress report. As correctly found by the CA, these pieces of evidence do not
meet the quantum of proof required in administrative cases.
The Evidence Against Mendoza, Erederos and Alingasa
i. Private complainants affidavits

The affidavits show that the complainants lack personal knowledge of the participation
of Mendoza and Erederos in the allegedly anomalous act. These affidavits indicate that
the complainants have commonly noticed and witnessed the anomalous sale
transaction concerning the confirmation certificates. Without going into details, they
uniformly allege that to secure the confirmation certificates, an amount of P2,500.00
would be paid to Alingasa, an L TO personnel, "who will remit her collections to a certain
Marilyn Mendoza vda. Erederos, a niece and the Secretary of the Regional Director,
Porferio Mendoza."25 While the payment to Alingasa might be considered based on
personal knowledge, the alleged remittance to Erederos and Mendoza -on its face - is
hearsay.
Any evidence, whether oral or documentary, is hearsay if its probative value is not
based on the personal knowledge of he witness
It is a basic rule in evidence that a witness can testify only on the facts that he knows of
his own Rersonal knowledge, i.e. those which are derived from his own perception. 26 A
witness may not testify on what he merely learned, read or heard from others because
such testimony is considered hearsay and may not be received as proof of the truth of
what he has learned, read or heard. 27 Hearsay evidence is evidence, not of what the
witness knows himself but, of what he has heard from others; it is not only limited to oral
testimony or statements but likewise applies to written statements, such as affidavits. 28
The records show that not one of the complainants actually witnessed the transfer of
money from Alingasa to Erederos and Mendoza. Nowhere in their affidavits did they
specifically allege that they saw Alingasa remit the collections to Erederos. In fact, there
is no specific allegation that they saw or witnessed Erederos or Mendoza receive
money. That the complainants alleged in the preface of their affidavits that they "noticed
and witnessed" the anomalous act complained of does not take their statements out of
the coverage of the hearsay evidence rule. Their testimonies are still "evidence not of
what the witness knows himself but of what he has heard from others." 29 Mere
uncorroborated hearsay or rumor does not constitute substantial evidence. 30
The affidavits also show that the complainants did not allege any specific act of the
respondents. All that the affidavits allege is a description of the allegedly anomalous
scheme and the arrangement whereby payments were to be made to Alingasa. There is
no averment relating to any "personal demand" for the amount ofP2,500.00.
Based on these considerations, we cannot conclude that the complainants have
personal knowledge of Erederos' and Mendoza's participation in the anomalous act. At
most, their personal knowledge only extends to the acts of Alingasa who is the recipient
of all payments for the processing of confirmation certificates. This situation, however, is
affected by the complainants' failure to specify Alingasa's act of personally

demanding P2,500.00 -a crucial element in determining her guilt or innocence of the

grave misconduct charged.
With respect to Pedroza's allegation in her affidavit 31 that Alingasa and Erederos
categorically told them that it was Mendoza who instructed them to collect
the P2,500.00 for the confirmation certificates, we once again draw a distinction
between utterances or testimonies that are merely hearsay in character or "nonhearsay," and those that are considered as legal hearsay.
Non-hearsay v. legal hearsay, distinction
To the former belongs the fact that utterances or statements were made; this class of
extrajudicial utterances or statements is offered not s an assertion to prove the truth of
the matter asserted, but only as to the fact of the utterance made. The latter class, on
the other hand, consists of the truth of the facts asserted in the statement; this kind
pertains to extrajudicial utterances and statements that are offered as evidence of the
truth of the fact asserted.
The difference between these two classes of utterances lies in the applicability of the
rule on exclusion of hearsay evidence. The first class, i.e. the fact that the statement
was made, is not covered by the hearsay rule, while the second class, i.e. the truth of
the facts asserted in the statement, is covered by the hearsay rule. Pedroza's allegation
belongs to the first class; hence, it is inadmissible to prove the truth of the facts asserted
in the statement. The following discussion, made m Patula v. People of the
Philippines32 is particularly instructive:
Moreover, the theory of the hearsay rule is that when a human utterance is offered as
evidence of the truth of the fact asserted, the credit of the assertor becomes the basis of
inference, and, therefore, the assertion can be received s evidence only when made on
the witness stand, subject to the test of cross-examination. However, if an extrajudicial
utterance is offered, not as an assertion to prove the matter asserted but without
reference to the truth of the matter asserted, the hearsay rule does not apply. For
example, in a slander case, if a prosecution witness testifies that he heard the accused
say that the complainant was a thief, this testimony is admissible not to prove that the
complainant was really a thief, but merely to show that the accused uttered those
words. This kind of utterance is hearsay in character but is not legal hearsay. The
distinction is, therefore, between (a) the fact that the statement was made, to which the
hearsay rule does not apply, and (b) the truth of the facts asserted in the statement, to
which the hearsay rule applies. [citations omitted]
Failure to identify the affidavits renders them inadmissible under the hearsay evidence
rule

We additionally note that the affidavits were never identified by the complainants. All the
allegations contained therein were likewise uncorroborated by evidence, other than the
NBI/Progress report.
In Tapiador v. Office of the Ombudsman,33 we had the occasion to rule on the
implications of the affiants' failure to appear during the preliminary investigation and to
identify their respective sworn statements, to wit:
Notably, the instant administrative complaint was resolved by the Ombudsman merely
on the basis of the evidence extant in the record of OMB-ADM-0-94-0983. The
preliminary conference required under Republic Act No. 6770 was dispensed with after
the nominal complainant, then BID Resident Ombudsman Ronaldo P. Ledesma,
manifested on July 29, 1996 that he was submitting the case for resolution on the basis
of the documents on record while the petitioner agreed to simply file his memorandum.
Consequently, the only basis for the questioned resolution of the Ombudsman
dismissing the petitioner from the government service was the unverified complaintaffidavit of Walter H. Beck and that of his alleged witness, Purisima Terencio.
A thorough review of the records, however, showed that the subject affidavits of Beck
and Terencio were not even identified by the respective affiants during the fact-finding
investigation conducted by the BID Resident Ombudsman at the BID office in Manila.
Neither did they appear during the preliminary investigation to identify their respective
sworn statements despite prior notice before the investigating officer who subsequently
dismissed the criminal aspect of the case upon finding that the charge against the
petitioner "was not supported by any evidence." Hence, Beck's affidavit is hearsay and
inadmissible in evidence. On this basis alone, the Administrative Adjudication Bureau of
the Office of the Ombudsman should have dismissed the administrative complaint
against the petitioner in the first instance. (emphasis supplied)
For the affiants' failure to identify their sworn statements, and considering the
seriousness of the charges filed, their affidavits must not be accepted at face value and
should be treated as inadmissible under the hearsay evidence rule.
ii. NBI/Progress report
With regard to the NBI/Progress report submitted by the complainants as corroborating
evidence, the same should not be given any weight. Contrary to the Ombudsman's
assertions, the report cannot help its case under the circumstances of this case as it is
insufficient to serve as substantial basis. The pertinent portion of this report reads:
04. P/Sinsp. JESUS KABIGTING and Senior TRO ALFONSO ALIANZA visited JAGNA
District Office at Jagna, Bohol wherein they were able to conduct interview with MR.
RODOLFO SANTOS, Officer-In-Charge who has assumed his new post only in

February 2002. During the conduct of the interview, Mr. SANTOS revealed that the
anomalous Dos-por-Dos transactions have been prevented and eliminated when the
previous District Manager in the person of Mr. LEONARDO G. OLAIVAR, who was
transferred to Tagbilaran District Office allegedly on a floating status and under the
direct control and supervision of its District Manager, Mr. GA VINO PADEN, Mr.
SANTOS allegations of the existence of "Dos-por-Dos" transactions were supported by
the records/documents gathered of which the signatures of Mr. OLAIVAR affixed
thereof. Copies are hereto attached marked as Annexes D-D-6.
xxxx
06. Submitted Affidavits of Ms. MARICAR G. HUETE, a resident of Lahug, Cebu City
and liaison Officer of GCY Parts, Kabancalan Mandaue City and Mr. ERNESTO R.
CARTILLAS a resident of Basak, Mandaue City and liaison Officer of Isuzu Cebu, Inc. in
Jagobiao, Mandaue City stated among others and both attested that: Annexes "E-E-1."
In order to secure the forms of Confirmation of Certificates, you have to buy the same at
the present cost ofP2,500.00 per pad from CATALINA ALINGASA, an LTO Personnel,
who will remit her collections to a certain MARILYN MENDOZA V da De EREDEROS, a
niece and secretary of the Regional Director, PORFERIO MENDOZA. 34
This quoted portion shows that it was based on complainant Huete's and Cantillas'
affidavits. It constitutes double hearsay because the material facts recited were not
within the personal knowledge of the officers who conducted the investigation. As held
in Africa, et al. v. Caltex Phil.) Inc., et al., 35 reports of investigations made by law
enforcement officers or other public officials are hearsay unless they fall within the
scope of Section 44, Rule 130 of the Rules of Court, to wit: The first question before Us
refers to the admissibility of certain reports on the fire prepared by the Manila Police and
Fire Departments and by a certain Captain Tinio of the Armed Forces of the Philippines.
xxx.
xxxx
There are three requisites for admissibility under the rule just mentioned: (a) that the
entry was made by a public officer, or by another person specially enjoined by law to do
so; (b) that it was made by the public officer in the performance of his duties, or by such
other person in the performance of a duty specially enjoined by law; and (c) that the
public officer or other person had sufficient knowledge of the facts by him stated, which
must have been acquired by him personally or through official information. (Moran,
Comments on the Rules of Court, Vol. 3 [1957] p. 383.)
Of the three requisites just stated, only the last need be considered here. Obviously the
material facts recited in the reports as to the cause and circumstances of the fire were

not within the personal knowledge of the officers who conducted the investigation. Was
knowledge of such facts, however, acquired by them through official information? xxx.
The reports in question do not constitute an exception to the hearsay rule; the facts
stated therein were not acquired by the reporting officers through official information, not
having been given by the informants pursuant to any duty to do so. [emphases ours]
The NBI/Progress report, having been submitted by the officials in the performance of
their duties not on the basis of their own personal observation of the facts reported but
merely on the basis of the complainants affidavits, is hearsay. Thus, the Deputy
Ombudsman cannot rely on it.
Non-applicability of strict technical rules of procedure in administrative or quasi-judicial
bodies is not a license to disregard certain fundamental evidentiary rules
While administrative or quasi-judicial bodies, such as the Office of the Ombudsman, are
not bound by the technical rules of procedure, this rule cannot be taken as a license to
disregard fundamental evidentiary rules; the decision of the administrative agencies and
the evidence it relies upon must, at the very least, be substantial. that:
In Lepanto Consolidated Mining Company v. Dumapis, 36 we ruled that:
While it is true that administrative or quasi-judicial bodies like the NLRC are not bound
by the technical rules of procedure in the adjudication of cases, this procedural rule
should not be construed as a license to disregard certain fundamental evidentiary rules.
The evidence presented must at least have a modicum of admissibility for it to have
probative value. Not only must there be some evidence to support a finding or
conclusion, but the evidence must be substantial. Substantial evidence is more than a
mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.
Conclusion
With a portion of the complainants affidavits and the NBI/Progress report being hearsay
evidence, the only question that remains is whether the respondents conduct, based on
the evidence on record, amounted to grave misconduct, warranting their dismissal in
office.
Misconduct is a transgression of some established and definite rule of action, more
particularly, unlawful behavior or gross negligence by a public officer. 37 The misconduct
is considered as grave if it involves additional elements such as corruption or willful
intent to violate the law or to disregard established rules, which must be proven by
substantial evidence; otherwise, the misconduct is only simple. Corruption, as an
element of grave misconduct, consists in the act of an official or fiduciary person who

unlawfully and wrongfully uses his station or character to procure some benefit for
himself or for another person, contrary to duty and the rights of others. 38
Based on these rulings, the Deputy Ombudsman failed to establish the elements of
grave misconduct.1wphi1 To reiterate, no substantial evidence exists to show that
Erederos and Mendoza received collected payments from Alingasa Their involvement or
complicity in the allegedly anomalous scheme cannot be justified under the affidavits of
the complainants and the NBI/Progress report, which are both hearsay.
With respect to Alingasa, in view of the lack of substantial evidence showing that she
personally demanded the payment of P2,500.00 a crucial factor in the wrongdoing
alleged we find that the elements of misconduct, simple or grave, to be wanting and
unproven.
WHEREFORE, in view of the foregoing, we hereby AFFIRM the assailed decision dated
November 22, 2005 and the resolution dated April 21, 2006 of the Court of Appeals in
CA-G.R. SP Nos. 83149, 83150 and 83576.
SO ORDERED.
SECOND DIVISION
THE PEOPLE OF THE PHILIPPINES, G.R. No. 177147
Appellee, [Formerly G.R. No. 147313]
Present:
SANDOVAL-GUTIERREZ,*
- versus - CARPIO,**
CARPIO MORALES,
TINGA, and
JOEMARIE CERILLA, VELASCO, JR., JJ.
Appellant.
Promulgated:
November 28, 2007
x----------------------------------------------------------------------------x
DECISION
TINGA, J.:
For automatic review is the Decision[1] of the Court of Appeals[2] dated 26 October
2006 in CA-G.R. CR-HC No. 00032 which affirmed with modification the Decision [3] of
the Regional Trial Court (RTC) of Iloilo City, Branch 23 dated 15 August 2000 in Criminal

Case No. 496502 finding appellant Joemarie Cerilla guilty beyond reasonable doubt of
the crime of murder and sentencing him to suffer the penalty of reclusion perpetua.
On 6 July 1998, an Information was filed against appellant charging him of the
crime of murder committed as follows:
That on or about April 24, 1998, in the Municipality of Leganes,
Province of Iloilo, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, armed with a firearm with deliberate
intent and decided purpose to kill and by means of treachery, did then and
there willfully, unlawfully and feloniously shoot Alexander Parreo with the
firearm which the accused was then provided, hitting and inflicting pellet
wound at the right back portion of his body which caused his death.
CONTRARY TO LAW.[4]
The prosecutions evidence shows that at around 6:00 pm on 24 April 1998, the victim,
Alexander Parreo (Alexander), his 14-year old daughter, Michelle, and neighbor,
Phoebe Sendin (Sendin), went to the house of appellant. They were cordially welcomed
and entertained by appellant and his wife. [5] An hour later, a blackout occurred. At this
time, Alexander sought permission from the couple to leave, which the latter
acknowledged.[6] On their way home, Michelle was walking ahead of Alexander with the
latter closely following his daughter. Suddenly, after walking for about 100 meters

from appellants house, Michelle heard an explosion. Michelle immediately turned her
back and saw appellant pointing a gun at Alexander who, at that moment, was
staggering towards her.[7] Sendin, who was also with Alexander and Michelle, did not
look back but instead ran away and proceeded to the house of Mrs. Parreo.
[8]
Meanwhile, Michelle was cuddling Alexander beside the road when the latter
repeatedly told her that it was appellant who shot him. [9] Twenty minutes later,
Alexanders other daughter, Novie Mae, arrived; she was also told by Alexander at that
moment that it was appellant who shot him.[10]
SPO3 Frederick Dequito (SPO3 Dequito) and other police officers rushed to the crime
scene and helped carry Alexander to an ambulance. SPO3 Dequito was able to ask
Alexander who shot him to which he answered Pato. Pato is an alias by which appellant
is known.[11]
Alexanders wife, Susan, who rushed to the hospital was also told by Alexander that it
was appellant who shot him.[12] Alexander died the following day.[13]

Dr. Tito D. Doromal, Philippine National Police medico-legal officer, performed an

autopsy on the body of Alexander. The autopsy report stated the cause of death to be
hemorrhage secondary to pellet wounds. [14] Testifying on his report, Dr. Doromal
explained that Alexander died from a gunshot wound which penetrated the ribs and
lacerated the right lobe of the liver, colon, stomach, duodenum, and right kidney. The
entrance wound was located at the middle-back portion of the body. Seven (7) pellets
were recovered on the muscle of the upper and middle abdominal wall. [15]
The defenses evidence consists of the testimonies of appellant himself and of his wife,
Madoline, his stepdaughter, Franlin, PO1 Manolito Javelora, PO3 Alberto Sarmiento,
and PO3 Wilson Allona. Appellant interposed alibi as his main defense. He claimed that
Alexander, together with his daughter and Sendin, had gone to his house on 24 April
1998 at around 6:00 p.m. where they were welcomed and offered snacks.[16] They were
having a conversation when a blackout occurred. Alexander then asked permission to
leave.After the visitors had left, appellant ordered his stepdaughter Franlin to buy candle
at the store across their house. Appellant and Madoline posted themselves at their

doorway holding a flashlight to light Franlins path. Upon Franlins return to the house,
appellant heard an explosion and he immediately closed the door. Later, the policemen

went to his house and told him that he was a suspect in the shooting of Alexander and
was then brought to the police station. [17] The following day, he was subjected to paraffin
test the result of which turned out to be negative. [18]
Appellants testimony was corroborated by Madoline and Franlin. PO1 Javelora
declared that when he asked Alexander who shot him, the latter did not answer.
[19]
Likewise, PO3 Sarmiento and Allona stated that when they went to the hospital to
interrogate Alexander, the latter could not give a definite answer as to who shot him. [20]
On 15 August 2000, the RTC found appellant guilty beyond reasonable doubt of murder
and sentenced him to suffer the penalty of reclusion perpetua. The dispositive portion of
the decision read:
WHEREFORE, premises considered, and in the light of the facts
obtaining and the jurisprudence aforecited, judgement is hereby rendered
finding the accused GUILTY beyond reasonable doubt of the crime of
MURDER, hereby sentencing the said accused to the penalty
of RECLUSION PERPETUA pursuant to Sec. 6 of Republic Act No.
7659[,] amending Article 248 of the Revised Penal Code. The said
accused is further condemned to indemnify the surviving heirs of the
deceased, Alexander Parreo, the sum of P257,774.75 by way of actual
damages; the amount of P30,000.00 by way of moral damages and the
sum of P50,000.00 by way of death compensation. The accused who is
detained is entitled to be credited in full with the entire period of his
preventive detention. The Jail Warden, Iloilo Rehabilitation Center is
ordered to remit the said accused to the National Penitentiary at the
earliest opportunity.
SO ORDERED.[21]
The trial court regarded the victims dying declaration as the most telling evidence
pointing to appellant as the assailant. [22] It appreciated the presence of treachery in
qualifying the crime to murder because the victim was unarmed and walking on his way
home when he was suddenly and unexpectedly shot from behind by appellant. [23] The
trial court ruled that appellants alibi and denial could not prevail over the positive
testimonies of credible witnesses.[24] Moreover, it observed that appellant was not able
to prove the impossibility of his presence at the crime scene which could have proven
his alibi.[25]

In view of the penalty of reclusion perpetua imposed on appellant, the case was
initially elevated to this Court for review. However, pursuant to our ruling in People v.
Mateo,[26] the case was referred to the Court of Appeals.
The appellate court affirmed the trial courts ruling but modified the award of moral
damages from Thirty Thousand Pesos to Fifty Thousand Pesos. [27] Hence, the instant
appeal.
In a Resolution dated 16 July 2007, the Court required the parties to
simultaneously submit their respective supplemental briefs if they so desired. [28] Both
parties manifested that they would adopt their briefs filed before the appellate court.
[29]
Thereafter, the case was deemed submitted for decision.
Appellant argues that the trial court erred in giving full credence to the testimony of the
prosecution's eyewitness, Michelle, as well as the dying declaration of Alexander
considering that the circumstances under which the crime was committed rendered the
identification of the gunman impossible.
This argument essentially challenges the credibility of the witnesses, including the
eyewitness, whose testimonies were relied upon by the trial court in convicting
appellant.Basic is the principle that the findings of fact of a trial court, its calibration of
the testimonies of the witnesses and its assessment of the probative weight thereof, as
well as its conclusions anchored on said findings are accorded high respect, if not
conclusive effect. This is because the

trial court has the unique opportunity to observe the demeanor of a witness and is in the
best position to discern whether they are telling the truth. This rule holds true especially
when the trial court's findings have been affirmed by the appellate court. [30]
Appellants authorship of the crime was proven by the positive identification of an
eyewitness and the victims dying declaration.
The prosecution presented Michelle, who categorically identified appellant as the one
who shot Alexander, viz:
Q: While you and your father were walking towards home, did you
remember anything unusual that happened?
A: Yes, Maam.
Q: What was that?
A: I heard an explosion.
Q: Where were you in relation to your father when you heard that shot?
A: I was in front of my Daddy and he was at my back.
Q: You said you heard a shot, what did you do when you heard a shot?
A: When I heard the shot, I turned back and I saw Joemarie pointing to my
Dad.
COURT:
Q: What did he point towards your Dad?
A: Firearm.

PROSECUTOR PADILLA:
Q: You said Joemarie was pointing a firearm to your father. Was it [a] long
or short firearm?
A: About 11 inches.
Q: After you saw Joemarie pointing a firearm to your father, what
happened next?
A: I saw my father staggering towards me and I saw Joemarie Cerilla ran.
Q: Where was he going?
A: Maybe towards his house.[31]
xxxx
Q: If this Joemarie Cerilla is inside the Courtroom, can you identify him?
A: Yes, Maam.
Q: Please point to him. (Witness pointing to the accused Joemarie Cerilla).
[32]

Michelles account of how her father was shot by appellant was corroborated by the
post-mortem examination which reveals that the entrance wound is located at the back
of the victim.[33] In the same vein, the medico-legal expert concluded that the gunshot
was fired at a close range, as evidenced by the presence of a power burn measuring
four (4) centimeters in diameter surrounding the periphery of the wound [34] and
penetrating his internal organs.[35]

Significantly, the eyewitnesss positive identification of appellant as the

perpetrator of the crime is fully supported the victims dying declaration.
A dying declaration is a statement made by the victim of homicide, referring to
the material facts which concern the cause and circumstances of the killing and which is
uttered under a fixed belief that death is impending and is certain to follow immediately,
or in a very short time, without an opportunity of retraction and in the absence of all
hopes of recovery. In other words, it is a statement made by a person after a mortal

wound has been inflicted, under a belief that death is certain, stating the facts
concerning the cause and circumstances surrounding his/her death. [36]
As an exception to the rule against hearsay evidence, a dying declaration or ante
mortem statement is evidence of the highest order and is entitled to utmost credence
since no person aware of his impending death would make a careless and false
accusation.[37] It
is thus admissible to provide the identity of the accused and the deceased,
to show thecause of death of the deceased,
and
the circumstances under which the assault was made upon him. The reasons
for its admissibility is necessity and

trustworthiness. Necessity, because the declarants death renders it impossible his

taking the witness stand, and it often happens that there is no other equally satisfactory
proof of the crime; allowing it, therefore, prevents a failure of justice. And
trustworthiness, because the declaration is made in extremity, when the party is at the
point of death and when every motive to falsehood is silenced and the mind is induced
by the most powerful considerations to speak the truth. The law considers the point of
death as a situation so solemn and awful as creating an obligation equal to that which is
imposed by an oath administered in court. [38]
Of the doctrines that authorize the admission of special classes of hearsay, the
doctrine relating to dying declarations is the most mystical in its theory and, traditionally,
among the most arbitrary in its limitations. In the United States, the notion of the special
likelihood of truthfulness of deathbed statements was widespread long before the
recognition of a general rule against hearsay in the early 1700s. Not surprisingly, nearly
as soon as we find a hearsay rule, we also find an exception for dying declarations. [39]
Four requisites must concur in order that a dying declaration may be admissible,
thus: first, the declaration must concern the cause and surrounding circumstances of
the declarant's death. This refers not only to the facts of the assault itself, but also to
matters both before and after the assault having a direct causal connection with
it. Statements involving the nature of the declarants injury or the cause of death; those
imparting deliberation and willfulness in the attack, indicating the reason or motive for
the killing; justifying or accusing the accused; or indicating the absence of cause for the
act are admissible.[40] Second, at the time the declaration was made, the declarant must
be under the consciousness of an impending death. The rule is that, in order to make a
dying declaration admissible, a fixed belief in inevitable and imminent death must be
entered by the declarant. It is the belief in impending death and not the rapid succession
of death in point of fact that renders the dying declaration admissible. It is not necessary
that the approaching death be presaged by the personal feelings of the deceased. The
test is whether the declarant has abandoned all hopes of survival and looked on death
as certainly impending.[41] Third, the declarant is competent as a witness. The rule is that
where the declarant would not have been a competent witness had he survived, the
proffered declarations will not be admissible. Accordingly, declarations made by a child
too young to be a competent witness or by a person who was insane or incapable of
understanding his own statements by reason of partial unconsciousness are not
admissible in evidence.[42] Thus, in the absence of evidence showing that the declarant

could not have been competent to be a witness had he survived, the presumption must
be sustained that he would have been competent. [43] Fourth, the declaration must be
offered in a criminal case for homicide, murder, or parricide, in which the declarant is the
victim.[44] Anent this requisite, the same deserves no further elaboration as, in fact, the
prosecution had caused its witnesses to take the stand and testify in open court on the
substance of Alexanders ante mortem statement in the present criminal case for
murder.
The victim communicated his ante-mortem statement to three persons who
testified with unanimity that they had been told by the victim himself that it was appellant
who shot him. Michelle recounted:
Q: You said your father moved towards you, what happened next?
A: I approached my father and cuddled him.
Q: What happened next?
A: While I was cuddling my father he said, Day, it was Joemarie who shot
me.
Q: How many time he said he was shot?
A: Not once but about 10 times.[45]

Shortly thereafter, Novie Mae arrived and was told by Alexander that it was
appellant who opened fire at him:
Q: When you reached Confessor Street, what happened?
A: I saw that my elder sister was assisting my father.

COURT:
Q: Whats the name of your sister?
A: Michelle.
COURT:
Proceed.
FISCAL:

Q: When you saw your sister Michelle assisting your father, what [sic]
happened next?
A: And I immediately went near my father and asked him who shot him
and he answered it was Joemarie Cerilla who shot him.
Q: Before you reached your father, did you observe his physical
appearance of what happened to him?
A: Yes, Maam, he was supporting with his arm and when I asked him he
still made a response.
Q: You said [that] before you approached your father[,] you saw him
supporting his body, what was his position at that time?
A: He was in a position of lying with his hand on the road and my sister
was assisting him.
xxx
Q: Were you able to observe why your father was sitting on the ground
and supporting himself not to fall.
A: Yes, Maam.
Q: Why, [sic] what did you observe?
A: My father was supporting himself in order that blood will not [ooze] from
his body and his body will not fall down. [46]
SPO3 Dequito, who responded immediately to the crime scene, corroborated the
testimonies of the Alexanders children, to wit:

Q: So, what did you do when you arrived at the crime scene?
A: We advised the group to carry Mr. Parreo to the ambulance because
the ambulance was on the way and after our mobile arrived, the
ambulance arrived also [sic] so we carried Mr. Parreo to be brought
to the hospital.
COURT:
Q: Meaning you loaded the victim into the ambulance?
A: Yes, Your Honor.
Q: And after he was loaded, what did you do?
A: Before the ambulance left the area, I questioned the victim who shot
him and he answered Alias Pato. I am referring to Joemarie Cerilla,
the accused.

Q: The accused Cerilla, Alias Pato?

A: Yes, Your Honor.
PROSECUTOR:
Q: Can you remember the exact words uttered by the victim when you
asked him who shot him?
A: He answered me that: I questioned him, Who shot you? and he
answered that it was Cerilla and I further asked him The husband of
Madoline and he answered Yes, Alias Pato, the husband of
Madoline.[47]
Likewise, Alexanders wife, Sonia, testified:
Q: You said from your house when you were told by the girls that your
husband was shot, what did you do?
A: I looked for a taxi and proceeded to the hospital.
xxx
Q: When you arrived at the hospital, where did you go first?
A: To my husband.
xxx

Q: When you reached that hospital and your own mother led you to where
Alexander was, in what part of the hospital did you first see him.
A: Outside the operating room.
Q: What was the situation of your husband when you first saw him?
A: He was leaning on his side and many nurses attending to him and
saying araguy.
xxx
Q: Between you and your husband who spoke first?
A: My husband.
Q: What were the exact words stated by your husband?
A: He told me that it was Joemarie who shot him.[48]
These statements comply with all the requisites of a dying declaration. First,
Alexanders declaration pertains to the identity of the person who shot him. Second, the
fatal quality and extent of the injuries [49] he suffered underscore the imminence of his
death as his condition was so serious that his demise occurred the following morning
after a thirteen (13)-hour operation. Third, he would have been competent to testify had
he survived. Fourth, his dying declaration is offered in a criminal prosecution for murder
where he was the victim.

Other police officers were presented by the defense to refute the dying
declaration. PO1 Javelora alleged that he happened to pass by the crime scene and
saw a young girl crying. The girl led him to her father who was sitting on the
roadside. He asked the victim who shot him but he did not get any reply. [50] PO3 Allona
and Sarmiento arrived at the hospital and questioned Alexander as to who shot him but
the latter told them, I am not sure because it was dark. [51] These statements cannot be
construed as a categorical statement of the victim denying knowledge as to the identity
of his assailant. It can be recalled that at the time Alexander was being questioned, he
was already being readied for surgery. At that point, he was understandably no longer fit
to respond to questions. Between these two seemingly conflicting testimonies, it is the
positive identification made by Alexander in his dying declaration which must be
sustained.

Appellant insists that there was an inherent impossibility in identifying the

assailant with clarity since there was a power blackout at the time of the commission of
the crime and was then a moonless night.
The fact that the crime was committed during a blackout does not cast doubt on
Alexanders and Michelles positive identification of appellant. While the place of
occurrence was dark, this did not prevent the Alexander or Michelle from identifying the
assailant, especially since the shot was delivered at close range.
In dismissing appellants contention, the trial court rationalized:
x x x This argument deserves scant consideration. In the case
of People v. Hillado, G.R. No. 122838[,] promulgated on May 24, 1999[,]
citing the case of People v. Oliano, visibility at nighttime is possible not
only at the exact minute and date when the moon is full as indicated in the
calendar. Thus, a persons nocturnal eyesight, is not necessarily
diminished just because there is no illumination from the moon, because it
is a fact that our eyes can actually adjust to the darkness so that we can
still see objects clearly even without sufficient lighting. In the case at bar, it
would not be so hard for Michelle to identify a persons fact especially if the
latter as in the present case was barely two (2) arms length away from
them which is confirmed by the presence of gunpowder nitrates on the
body of the victim. We stress, that the normal reaction of the person is to
direct his sight towards the source of a startling [shot] or occurrence. As
held in People v. Dolar, the most natural reaction of the victims in criminal
violence is to strive to see the looks and faces of their assailants and to
observe the manner in which the crime is committed. Added to this is the
fact that the accused Joemarie Cerilla and the victim Alexander Parreo
have known each other quite well before the incident so that
they became familiar with each others face and physical features. x x x [52]

Moreover, the prosecution witnesses were not shown to be impelled by ill motive
to testify falsely against appellant. Besides, Susan, Michelle and Novie Mae, being
immediate relatives of the deceased, would naturally be interested in having the real
culprit punished.[53]
The positive identification of appellant must necessarily prevail over his alibi. [54] It
was not physically impossible for appellant to have been present at the scene of the

crime at the time of its commission. The distance of his house, where he supposedly
was, from the locus criminis is only 120-150 meters, more or less.[55]
Appellant counters that there was absence of any motive on his part to kill the
victim; that it was not clearly proven that he fired a gun, based on the paraffin test; and
that he appeared calm and composed and showed no indication of guilt when he was
invited by the police officers shortly after the commission of the crime.
Time and again, we have ruled that a negative finding on paraffin test is not a
conclusive proof that one has not fired a gun because it is possible for a person to fire a
gun and yet bear no traces of nitrates or gunpowder, as when the culprit washes his
hands or wears gloves.[56] The trial court correctly rejected the result of the paraffin test
in light of the positive identification of appellant.
The trial court held that the killing was qualified by treachery because Alexander,
who was unarmed, was suddenly and unexpectedly shot from behind by appellant
without any risk to the latter from any defense which the former might make. There was
no opportunity given to Alexander to repel the assault or offer any defense of his
person.There was not the slightest provocation on his part. [57] We agree with the findings
of the trial court. The presence of treachery was evident in the execution of the crime.
Appellant suddenly, and without warning, shot Alexander from his back.
Under Article 248 of the Revised Penal Code, as amended by Republic Act No.
7659, murder is punishable with reclusion perpetua to death. Because the killing of
Alexander, although qualified by treachery, was not attended by any other aggravating
circumstance, the proper imposable penalty is reclusion perpetua.
We deem it proper to further impose exemplary damages in the amount
of P25,000.00 which is recoverable in the presence of an aggravating circumstance,
whether qualifying or ordinary, in the commission of the crime. [58]
WHEREFORE, the Decision of the Court of Appeals dated 26 October 2006,
affirming with modification the Regional Trial Court Judgment dated 15 August
2000 finding appellant, Joemari Cerilla, guilty beyond reasonable doubt of murder, is
AFFIRMED with the MODIFICATION that appellant is further ordered to pay the heirs of
Alexander Parreo P25,000.00 as exemplary damages.

SO ORDERED.
SECOND DIVISION
JESUS GERALDO
ARIATE,
Petitioners,

and

AMADO

G.R. No. 173608

Present:
QUISUMBING, J., Chairperson,
CARPIO MORALES,
TINGA,
VELASCO, JR., and
BRION, JJ.

- versus -

Promulgated:
PEOPLE OF THEPHILIPPINES,
November 20, 2008
Respondent.
x-------------------------------------------x
DECISION
CARPIO MORALES, J.:
Petitioners Jesus Geraldo and Amado Ariate were, by Information
dated December 23, 2002 filed on December 27, 2002 before the Regional Trial Court
of Surigao del Sur, charged with Homicide allegedly committed as follows:
x x x [O]n the 1st day of July, 2002 at about 3:00 oclock early
morning, more or less, at Sitio Tinago, Barangay Bunga, municipality of
Lanuza, province of Surigao del Sur, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, conspiring and
mutually helping one another, armed with xxx handguns and with intent to
kill, did, then and there, willfully, unlawfully and feloniously sho[o]t one
ARTHUR U.[1] RONQUILLO, thereby hitting and inflicting upon the latter
wounds described hereunder:
POINT OF ENTRY:
1.
Right lumbar area
2.
Right iliac area
POINT OF EXIT
1.
Left lateral area of abdomen
2.
Right hypogastric area

which wounds have caused the instantaneous death of said ARTHUR U.

RONQUILLO, to the damage and prejudice of his heirs in the following
amount:
P50,000.00 as life indemnity of the victim;
10,000.00 as moral damages;
10,000.00 as exemplary damages; and
40,000.00 as actual damages.
CONTRARY TO LAW.[2]

At 3:00 a.m. of July 1, 2002, his wife, daughter Mirasol, and son Arnel, among
other persons, on being informed of the shooting of Arthur Ronquillo (the victim),
repaired to where he was, not far from his residence, and found him lying on his side
and wounded. Although gasping for breath, he was able to utter to Mirasol, within the
hearing distance of Arnel, that he was shot by Badjing [3] and Amado.
Petitioners who were suspected to be the Badjing and Amado responsible for the
shooting of the victim were subjected to paraffin tests at the Philippine National Police
(PNP) Crime Laboratory in Butuan City. In the PNP Chemistry Report No. C-002-2002SDS,[4] the following data are reflected:
xxxx
TIME AND DATE RECEIVED : 1105H 03 July 2002
REQUESTING PARTY/UNIT : Chief of Police
Lanuza Police Station
Lanuza, Surigao del Sur
SPECIMEN SUBMITTED :
Paraffin casts taken from the left and the right hands of the following
named living persons:
A = Jesus Geraldo Jr. alias Bajing
B = Amado Ariate
/x/x/x/ /x/x/x/
PURPOSE OF LABORATORY EXAMINATION
To determine the presence of gunpowder residue, Nitrates. /x/x/x/

FINDINGS:
Qualitative examination conducted on specimens A and B gave
NEGATIVE results for powder residue, Nitrates. /x/x/x/
CONCLUSION:
Specimens A and B do not reveal the presence of gunpowder residue,
Nitrates. /x/x/x/
REMARKS:
The original copy of this report is retained in this laboratory for future
reference.
TIME AND DATE COMPLETED:
1700H 03 July 2002
x x x x (Underscoring supplied)
In a document dated July 1, 2002 and denominated as Affidavit[5] which was
subscribed and sworn to before Clerk of Court II Manuel A. Balasa, Sr. on July 26, 2002,
the victims son Arnel gave a statement in a question and answer style that herein
petitioners Jesus Geraldo and Amado Ariate were the ones who shot his father.
In another document dated July 4, 2002 also denominated as Affidavit [6] which
was subscribed and sworn to also before the same Clerk of Court II Balasa on July 26,
2002, Mirasol also gave a statement in a question and answer style that her father
uttered that herein petitioners shot him.
At the witness stand, Mirasol echoed her fathers declaration that Badjing and
Amado shot him. Arnel substantially corroborated Mirasols statement. [7]
Upon the other hand, petitioners gave their side of the case as follows:
Petitioner Ariate, a barangay tanod of Bunga, declared that Barangay
Kagawad Omboy Roz (Roz) woke him up at 3:00 a.m. of July 1, 2002 and informed him
that the victim was shot. He and Roz thus borrowed a tricycle, proceeded to the crime

scene and, along with others, brought the victim to the hospital where he was
pronounced dead on arrival. Ariate submitted himself to a paraffin test and tested
negative for gunpowder residue/nitrates. [8]
Petitioner Geraldo declared that he slept in his house located also in Barangay
Bunga, Lanuza at 9:30 p.m. of June 30, 2002 and woke up at 4:00 a.m. the following
day. At6:30 a.m., on seeing many people in the vicinity of the 45-meter away house of
one Josita Bongabong where the victims body was found, he inquired and learned that
the victim was shot. Policemen subsequently went to his house and advised him to take
a paraffin test. He obliged and was tested at the PNP Crime Laboratory and was found
negative for gunpowder residue/nitrates. [9]
In the course of the testimony of Ariate, his counsel presented
the PNP Chemistry Report reflecting the negative results of the paraffin test on him and
Geraldo. The trial court restrained the presentation of the document, however, as
reflected in the following transcript of stenographic notes taken on March 21, 2003:
xxxx
Q I am showing to you [Ariate] a copy of the result of the paraffin
test attached to the record of this case.
COURT
Is it covered in the Pre-trial Order? You cannot do that. That is why I told
you; lay your cards on the table.
ATTY. AUZA
May I ask for the courts reconsideration.
COURT
Denied. I am warning you, all of you.
ATTY. AUZA
With the denial of our motion for reconsideration, I move to tender
exclusive evidence. He would have identified this result. The
paraffin test, which [forms] part of the affidavit of this witness
attached to the record of this case on page 29. May I ask that this
will be marked as Exhibit 3 for the defense.
COURT
Mark it. (Marked).[10] (Underscoring supplied)

As shown from the above-quoted transcript of the proceedings, the trial court restrained
the presentation of the result of the paraffin tests because the same was not covered in
the Pre-trial Order. In the Pre-trial Order,[11] the trial court noted the parties agreement
that witnesses not listed in this Pre-trial Order shall not be allowed to testify as
additional witnesses. Significantly, there was no agreement to disallow the presentation
of documents which were not reflected in the Pre-trial Orders. At all events, oddly, the
trial court allowed the marking of the PNP Chemistry Report as Exhibit 3.[12]
When petitioner Geraldos turn to present the same PNP Chemistry Report came,
the trial court ruled:

COURT
That is the problem in the Pre-Trial Brief if the exhibits are not stated. I will
set aside that Order and in the interest of justice I will allow the accused to
submit, next time I will not any more consider exhibits not listed in the Pretrial Order.[13] (Underscoring supplied)

The version of the defense was in part corroborated by witnesses.

The trial court, passing on the demeanor of prosecution witness-the victims eightyear old daughter Mirasol, observed:
. . . She talks straightforward, coherent and clear, very intelligent, with
child mannerism[s]. While testifying she was criss-crossing her hands,
touching anything within her reach, innocent and simple, pressing of[f] and
on her stomach but she talks with correct grammar. No doubt, this Court
was convinced of her testimony which was corroborated by her brother
Arnel Ronquillo.[14]

On the nature and weight of the dying declaration of the victim, the trial court
observed:

A dying declaration may be xxx oral or in writing. As a general rule,

a dying declaration to be admissible must be made by the declarant while
he is conscious of his impending death.However, even if a declarant did
not make a statement that he was on the brink of death, the degree and
seriousness of the wound and the fact that death supervened shortly
afterwards may be considered as substantial evidence that the declaration
was made by the victim with full realization that he was in a dying
condition; People vs. Ebrada, 296 SCRA 353.
Even assuming that the declaration is not admissible as a dying
declaration, it is still admissible as part of the res gestae since it was made
shortly after the startling occurrence and under the influence thereof,
hence, under the circumstances, the victim evidently had no opportunity to
contrive.[15] (Underscoring supplied)

Finding for the prosecution, the trial court convicted petitioners, disposing as
follows:
WHEREFORE, finding the accused JESUS GERALDO y CUBERO
and AMADO ARIATE y DIONALDO guilty beyond reasonable doubt of the
crime of Homicide penalized under Article 249 of the Revised Penal Code
and with the presence of one (1) aggravating circumstance of night
time and applying the Indeterminate Sentence Law, the maximum term of
which could be properly imposed under the rules of said code and the
minimum which shall be within the range of the penalty next lower to that
prescribe[d] by the code for the offense, hereby sentences each to suffer
the penalty of TEN (10) YEARS and ONE (1) DAY of Prision
Mayor minimum to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and
ONE (1) DAY of Reclusion Temporal maximum as maximum, with all the
accessory penalties provided for by law. To pay the heirs of the victim the
amount of P50,000.00 as life indemnity, P100,000.00 as moral damages
and P20,000.00 as exemplary damages. The claim for actual damages is
denied, there being no evidence to support the same.
The bail bond put up by the accused Jesus Geraldo and Amado
Ariate are ordered cancelled and to pay the cost.
SO ORDERED.[16] (Underscoring supplied)

The Court of Appeals, by Decision of June 30, 2006,[17] affirmed with modification
the trial courts decision. It found that the trial court erred in appreciating nocturnity as an
aggravating circumstance. And it reduced the award of moral damages [18] to P50,000,
and deleted the award of exemplary damages. Thus the Court of Appeals disposed:

WHEREFORE, in view of the foregoing, the appealed decision is

hereby AFFIRMED save for the modification of the penalty
imposed. Accordingly, accused-appellants are each hereby sentenced to
suffer an indeterminate penalty of Eight (8) years, Five (5) Months and
One (1) Day of prision mayor medium as minimum, to Seventeen (17)
Years and Four (4) Months ofreclusion temporal medium as maximum,
with all accessory penalties provided by law, and to jointly and solidarily
pay the heirs of the victim the amount of P50,000.00 as indemnity and
P50,000.00 as moral damages.
SO ORDERED.[19] (Italics in the original)

Hence, the present Petition[20] raising the following issues:

I
WHETHER OR NOT THE IDENTIT[IES] OF THE ACCUSEDAPPELLANTS AS THE ALLEGED ASSAILANT HAS BEEN ADEQUATELY
ESTABLISHED AS PER EVIDENCE ON RECORD?
II
WHETHER OR NOT THE IDENTIT[IES] OF THE ACCUSEDAPPELLANTS HAD BEEN ESTABLISHED BY PROOF BEYOND
REASONABLE DOUBT?[21] (Emphasis and underscoring supplied)

Petitioners argue:
With due respect, herein petitioners disagree with the holding of the
Honorable Court of Appeals that It is not necessary that the victim further
identify that Badjing was in fact Jesus Geraldo or that Amado was Amado
Ariate because, [so petitioners contend], it is the obligation of the
prosecution to establish with moral certainty that indeed the persons they
identified as the as the assailant of Arthur O. Ronquillo were really the
ones who perpetrated the crime.
Admittedly, prosecution witnesses were able to identify positively
herein petitioners as the alleged assailant[s] of Arthur O. Ronquillo. But
said identification is based on the assumption that they were the very
same BADJING AMADO and/or BADJING AND AMADO referred to by
their deceased father in his dying declaration.

What the Honorable Court of Appeals failed to consider is that, just

because the victim declared that it was BADJING AMADO and/or
BADJING AND AMADO who shot him does not necessarily follow that
herein petitioners were really the perpetrators in the absence of proof that
the BADJING referred to by him is Jesus Geraldo and that the AMADO is
Amado Ariate.It would have been a different story had the prosecution
witnesses [been] eyewitnesses because proof that the BADJING AMADO
and/or BADJING AND AMADO referred to by the victim and the persons
identified by the prosecution witnesses are the same is unnecessary.
Herein petitioners believe, that even assuming that there are no
other BADJING or AMADO in the barangay, still it does not follow that the
person[s] referred to by the dying declarant as his assailant were Jesus
Geraldo alias BADJING and Amado Ariate alias AMADO. Although, it is
inconceivable how the Honorable Court of Appeals arrived at the said
conclusion that there are no other BADJING AMADO and/or BADJING
AND AMADO in the barangay absent any proof to that effect from the
prosecution.[22] (Underscoring in the original)

The petition is impressed with merit.

The trial court relied on the dying declaration of the victim as recounted by his
daughter Mirasol and corroborated by his son Arnel.
A dying declaration is admissible as evidence if the following circumstances are
present: (a) it concerns the cause and the surrounding circumstances of the declarants
death; (b) it is made when death appears to be imminent and the declarant is under a
consciousness of impending death; (c) the declarant would have been competent to
testify had he or she survived; and (d) the dying declaration is offered in a case in which
the subject of inquiry involves the declarants death. [23]
There is no dispute that the victims utterance to his children related to the
identities of his assailants. As for the victims consciousness of impending death, it is not
necessary to prove that he stated that he was at the brink of death; it suffices that,
judging from the nature and extent of his injuries, the seriousness of his condition was
so apparent to him that it may safely be inferred that such ante mortem declaration was
made under consciousness of an impending death. [24] The location of the victims two
gunshot wounds, his gasping for breath, and his eventual death before arriving at the
hospital meet this requirement.[25]

It has not been established, however, that the victim would have been competent
to testify had he survived the attack. There is no showing that he had the opportunity to
see his assailant. Among other things, there is no indication whether he was shot in
front, the post-mortem examination report having merely stated that the points of entry
of the wounds were at the right lumbar area and the right iliac area. [26] Lumbar may refer
to the loins or the group of vertebrae lying between the thoracic vertebrae and the
sacrum,[27]or to the region of the abdomen lying on either side of the umbilical region
and above the corresponding iguinal. [28] Iliac relates to the ilium, which is one of the
three bones composing either lateral half of the pelvis being in man broad and
expanded above and narrower below where it joins with the ischium and pubis to form
part of the actabulum.[29]
At all events, even if the victims dying declaration were admissible in evidence, it
must identify the assailant with certainty; otherwise it loses its significance.[30]
In convicting petitioners, the trial court, as stated earlier, relied on the testimony
of the victims daughter Mirasol, which was corroborated by her brother Arnel, that the
Badjing and Amado mentioned by the victim as his assailants are herein petitioners
whom they claimed to know because they live in the same barangay. [31] The Court of
Appeals believed too the siblings testimonies, holding that
It is not necessary that the victim further identify that Badjing was in
fact Jesus Geraldo or that Amado was Amado Ariate. There was never an
issue as to the identity of the accused.There was no other person known
as Badjing or Amado in their neighborhood or in their barangay. Accusedappellants never presented any proof that a person in their
locality had the same aliases or names as they. It is not uncommon that
even an eight-year-old child can identify that Jesus Geraldo was known as
Badjing and that Amado Ariate was Amado.[32](Underscoring supplied)

Contrary, however, to the immediately-quoted ruling of the appellate court, it is

the prosecution, not petitioners, which had the burden of proving that petitioners were,
at the material time, the only ones in the barangay who bore such nicknames or
aliases. This, the prosecution failed to discharge.
When there is doubt on the identity of the malefactors, motive is essential for
their conviction.[33] The Court notes that in their affidavits supporting the criminal
complaint, the victims wife and children Mirasol and Arnel proffered not knowing any

possible motive for petitioners to shoot the victim. [34] At the trial, no evidence of any
motive was presented by the prosecution. Petitioners defense of denial and alibi thus
assumes importance.
Specifically with respect to petitioner Ariate, the victims wife admitted that Ariate
accompanied her family in bringing the victim to the hospital. [35] While non-flight does not
necessarily indicate innocence, under the circumstances obtaining in the present case,
Ariates spontaneous gesture of immediately extending assistance to the victim after he
was advised by the Barangay Kagawad of the victims fate raises reasonable doubt as to
his guilt of the crime charged.[36]
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals
dated June 30, 2006 affirming with modification the Decision of Branch 41 of the
Surigao del Sur Regional Trial Court is REVERSED and SET ASIDE. Petitioners Jesus
Geraldo and Amado Ariate are ACQUITTED of the charge of Homicide for failure of the
prosecution to establish their guilt beyond reasonable doubt.
Let a copy of this Decision be furnished the Director of the Bureau of
Corrections, Muntinlupa City who is directed to cause the immediate release

of petitioners unless they are being lawfully held for another cause, and to inform this
Court of action taken within ten (10) days from notice hereof.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION
G.R. No. 75028 November 8, 1991
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
PIOQUINTO DE JOYA y CRUZ, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Rodolfo P. Liwanag for accused-appellant.

FELICIANO, J.:p
In an Information dated 5 May 1978, appellant Pioquinto de Joya y Cruz was charged
before the Regional Trial Court, 3rd Judicial Region, Branch 14, Malolos, Bulacan with
the crime of robbery with homicide committed as follows:
That on or about the 31st day of January, 1978, in the municipality of
Baliuag, province of Bulacan, Philippines and within the jurisdiction of this
Honorable Court, the said accused Pioquinto de Joya y Cruz, did then and
there wilfully, unlawfully and feloniously, with intent of (sic) gain and
without the knowledge and consent of the owner and, by means of
violence and intimidation, take, carry and cart away two (2) rings, one (1)
necklace, one (1) piece of earring, belonging to Arnedo Valencia y Angeles
and Eulalia Diamse Vda. de Salac, to their damage and prejudice in the
sum of FIVE HUNDRED FIFTY PESOS (P550.00); and that on the
occasion of the said robbery and for the purpose of enabling him to take
the said properties, the accused did then and there wilfully, unlawfully and
feloniously with treachery, evident premeditation and great advantage of
superior strength, with intent to kill, attack, assault and use personal
violence upon the person of Eulalia Diamse Vda. de Salac by stabbing
and hitting the latter on her neck and other parts of her body with pointed
instrument causing injuries which directly caused the death of the said
Eulalia Diamse Vda. de Salac.
That in the commission of the offense, the following aggravating
circumstances were present (1) abuse of superior strength; (2) committed
in the dwelling of the offended party; (3) disregard of age and sex; (4)
abuse of confidence.
Contrary to law. 1
At arraignment, appellant De Joya pleaded not guilty. After trial, the court a
quo rendered a decision dated 16 May 1986 convicting De Joya of the crime charged.
The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered, finding the accused guilty
beyond reasonable doubt of the crime of Robbery with Homicide,
committed with the aggravating circumstances of: abuse of superior

strength, old age, disregard of sex the victim a woman 88 years old, the
crime was committed in the dwelling of the victim. The accused being 72
years old death penalty cannot be imposed against him as provided in
Article 47 of the Revised Penal Code.
The Court therefore, sentences the accused to LIFE IMPRISONMENT; to
indemnify the heirs of the victim in the amount of P20,000.00 and to pay
damages in the amount of P550.00.
The bond of the accused is ordered cancelled and the accused to be
confined immediately in the National Penitentiary pending review of his
case by the Supreme Court.
The Clerk of Court is ordered to immediately forward the record of this
case to the Supreme Court for review.
SO ORDERED. 2
In this appeal, appellant raises a number of issues all of which, however, amount to one
basic assertion: that the lower court erred in concluding that appellant was guilty beyond
reasonable doubt of the crime charged.
The facts have been summarized in the brief of the Solicitor General in the following
manner:
The spouses Arnedo Valencia and Herminia Salac-Valencia, together with
their ten (10) year old son Alvin Valencia and Herminia Valencia's 88-year
old mother, Eulalia Diamse, are residents of Balagtas St., Baliuag,
Bulacan. (TSN, June 11, 1981, p. 2). Both spouses are teachers by
profession.
Arnedo Valencia teaches at the Tiaong Elementary School at Barrio
Tiaong, Baliuag, Bulacan whereas Herminia Valencia teaches in an
intermediate school at Baliuag, Bulacan. (TSN, March 11, 1980, p. 7).
In the afternoon of January 31, 1978, Herminia Salac-Valencia left for
school to teach. Her mother Eulalia Diamse was then [sitting] at their sofa
watching the television set. (TSN, October 12, 1978, p. 3).
Her Son Alvin likewise left for school at 1:00 o'clock. And at 3:00 o'clock in
the afternoon, his classes were dismissed and he proceeded home. (TSN,
March 11, 1980, p. 8).

At around 3:00 o'clock in the afternoon of that same day, the spouses
Valencia's neighbor by the name of Gloria Capulong, together with a
friend, went out of the former's house to visit a friend. While at her yard,
Gloria Capulong looked back to the direction of the Valencia's house. She
noticed appellant Pioquinto de Joya standing and holding a bicycle at the
yard of the Valencia's. (TSN, June 11, 1981, pp. 2-4).
When Alvin reached home, he saw his grandmother Eulalia Diamse lying
down prostrate and drenched with her own blood. He immediately threw
his bag and ran towards her. He then held her hands and asked her: "Apo,
Apo, what happened?". (TSN, March 11, 1980, p. 10).
. . . [Eulalia Diamse held his hand and after which said: "Si Paqui". After
saying these words, she let go of Alvin's hand and passed away.
(TSN, Ibid., pp. 14 and 17).
Alvin then called for his Nana Edeng and told her to see his lola because
she was drenched with her own blood. His Nana Edeng told him to
immediately see his mother Herminia Salac-Valencia to inform her of what
happened. (TSN, Id).
Upon seeing her mother, Alvin told her: "Mommy, Mommy, apo is
drenched in her own blood." (TSN, March 11, 1980, p. 20).
Herminia immediately ran outside the school, flagged down a tricycle and
went home. Alvin followed, riding his bicycle (TSN, Id., p. 21). When she
reached their house, she found her mother lying prostrate in her own
blood at their sala in front of the television. Her mother's hands were
stretched open and her feet were wide apart. Blood was oozing out of her
mother's ears. She then embraced her mother and placed her on the sofa.
She asked Alvin and the tricycle driver to call Dr. Delfin Tolentino. (TSN,
October 12,1978, pp. 25-26).
Dr. Tolentino arrived at around 4:00 o'clock that same afternoon and
examined the body of Eulalia Diamse. Said doctor declared that said
Eulalia Diamse had a heart attack which caused her death. When asked
by Herminia Valencia why her mother's ears were punctured, no reply was
given by said doctor. Herminia requested for a death certificate, but Dr.
Tolentino did not issue one and instead immediately left. (TSN, Ibid., pp.
27-29).

Herminia found out that the two (2) gold rings worn by her mother were
missing. The right earring of her mother was likewise missing. All of these
were valued [at] P300.00 (TSN, Id., p. 15).
That same afternoon, Herminia saw the room of the groundfloor
ransacked. The contents of the wardrobe closet (aparador) were taken
out. Its secret compartment/box was missing. And the lock of the aparador
was destroyed. (TSN, October 12, 1978, pp. 15-17).
When she went upstairs after putting her mother on a bed at the ground
floor, she found the two (2) rooms thereat in disarray. She then caused the
rooms and things photographed by a certain Ricardo Ileto (Exhibits "A" to
"A-11"; TSN, October 12, 1978, p. 17).
Later, Herminia went to Dr. Adela Cruz and pleaded [with] said doctor to
issue a death certificate so that her mother could be embalmed. (TSN, Id.,
pp. 33-34).
On the same night, Herminia found a beach walk step-in (Exhibit "B") by
the side of the cabinet near the door of their room downstairs, more or
less one meter from where the victim was lying prostrate. (TSN, October
12,1978, pp. 24-25).
Herminia was able to recognize the said step-in because of its color and
size, as the other half of the pair she bought for her husband Arnedo but
which she gave to Socorro de Joya, the wife of herein appellant, before
Christmas of 1977 when she saw the old and wornout pair of slippers of
the latter. (TSN, Ibid.).
Appellant Pioquinto de Joya visited the wake only once. During the
second day of the four-day wake, Herminia saw herein appellant Pioquinto
de Joya enter the kitchen and peep under the cabinet of the (Valencia's)
house. (TSN, Id.).
On February 3, 1978, a post-mortem examination was conducted by Dr.
Romulo Madrid, a medico-legal officer of the National Bureau of
Investigation. Per examination, the cause of the death arrived by Dr.
Madrid was "shock, secondary to punctured wound neck" (Exhibit "D-1")
situated at the right side of the neck, just below the right ear wherein it
went out thru and thru, opposite, almost in the same location, from one
side of the neck to the opposite side. (Exhibit "D-2").

In its decision, the trial court became quite clear as to the factors which led to the
judgment of conviction against appellant. These factors, as set out in the decision of the
trial court, were the following:
In the case at bar, the prosecution relied heavily on the circumstances
surrounding the death of the victim as testified to by the witnesses and
proven during the trial, also the dying statement of the deceased, which
are: Herminia testified that two weeks before the incident the accused and
the deceased quarreled over a bicycle which the former took from their
house without the consent of the latter; that Exhibit "B" (step-in beach walk
type) which was found near the cabinet one meter away from the body of
the victim was identified by Herminia as the step-in that she gave to the
wife of the accused and which she saw accused wearing on January 29,
1978 when she visited them in their house; the testimony of Gloria
Capulong that she saw the accused in the afternoon of January 31, 1978
at around 3:00 p.m. in the yard of Herminia standing and holding a bicycle;
the accused admitted, although his wife is the sister of the husband of
Herminia he never visited the deceased during the four days that it was
lying in state without any justifiable reason and contrary to the ordinary
experience of man; last but most convincing is the dying statement of the
deceased when her grandson Alvin asked her "Apo, Apo, what
happened?" and she answered, "Si Paki", then she expired. When Alvin
was asked during his testimony who is this Paki, he identified the accused.
The accused during his testimony never denied that he is called Paki.
The foregoing circumstances established during the trial plus the dying
statement of the deceased leads only to one fair and reasonable
conclusion, that the accused is the author of the crime.
Analyzing the above portion of the decision, the elements taken into account by the
court in convicting appellant De Joya of robbery with homicide may be listed as follows:
1. The dying statement made by the deceased victim to her grandson
Alvin Valencia a 10-year old boy: "Si Paqui";
2. The quarrel, which, according to Herminia Valencia, daughter of the
deceased victim, took place two weeks before the robbery and homicide,
between the appellant and the deceased over the use of a bicycle which
appellant allegedly took from the Valencia's house without the consent of
the victim;
3. The rubber slipper, one of a pair, ("step-in beach walk type") which
according to Herminia, she found near a cabinet in their house one (1)

meter away from the body of the victim, and which Herminia identified as
one of the pair that she had given to the wife of the accused the previous
Christmas Season;
4. Accused was seen by one Gloria Capulong around 3:00 p.m. in the
afternoon of 31 January 1978 in the yard of the Valencias, standing and
holding a bicycle and doing nothing;
5. The statement of appellant that he did not visit the deceased during the
four-day wake.
We turn first to the dying statement made by the victim when the 10-year old Alvin
Valencia asked his grandmother who was sprawled on the floor of their house drenched
with blood: "Apo, Apo, what happened?" The deceased victim said: "Si Paqui". After
uttering those two words, she expired. It is not disputed that "Paqui" is the nickname of
appellant Pioquinto de Joya. It must be noted at once, however, that the words
"Si Paqui" do not constitute by themselves a sensible sentence. Those two words could
have been intended to designate either (a) the subject of a sentence or (b) the object of
a verb. If they had been intended to designate the subject, we must note that no
predicate was uttered by the deceased. If they were designed to designate the object of
a verb, we must note once more that no verb was used by the deceased. The phrase
"Si Paqui" must, moreover, be related to the question asked by Alvin: "Apo, Apo,
what happened?" Alvin's question was not: "Apo, Apo, who did this to you?"
It has been held that a dying declaration to be admissible must be complete in itself. To
be complete in itself does not mean that the declarant must recite everything that
constituted the res gestae of the subject of his statement, but that his statement of any
given fact should be a full expression of all that he intended to say as conveying his
meaning in respect of such fact. 3 The doctrine of completeness has also been
expressed in the following terms in Prof. Wigmore's classic work:
The application of the doctrine of completeness is here peculiar. The
statement as offered must not be merely apart of the whole as it was
expressed by the declarant; it must be complete as far it goes.But it is
immaterial how much of the whole affair of the death is related, provided
the statement includes all that the declarant wished or intended to include
in it. Thus, if an interruption (by death or by an intruder) cuts short a
statement which thus remains clearly less than that which the dying
person wished to make, the fragmentary statement is not receivable,
because the intended whole is not there, and the whole might be of a very
different effect from that of the fragment; yet if the dying person finishes
the statement he wishes to make, it is no objection that he has told only a
portion of what he might have been able to tell. 4 (Emphasis supplied)

The reason upon which incomplete declarations are generally excluded, or if admitted,
accorded little or no weight, is that since the declarant was prevented (by death or other
circumstance) from saying all that he wished to say, what he did say might have been
qualified by the statements which he was prevented from making. That incomplete
declaration is not therefore entitled to the presumption of truthfulness which constitutes
the basis upon which dying declarations are received. 5
It is clear to the Court that the dying declaration of the deceased victim here was
incomplete. In other words, the deceased was cut off by death before she could convey
a complete or sensible communication to Alvin. The trial court simply assumed that by
uttering the words "Si Paqui", the deceased had intended to name the person who had
thrust some sharp instrument through and through her neck just below her ears. But
Eulalia herself did not say so and we cannot speculate what the rest of her
communication might have been had death not interrupted her. We are unable to regard
the dying statement as a dying declaration naming the appellant as the doer of the
bloody deed.
The other elements taken into account by the trial court are purely circumstantial in
nature. When these circumstances are examined one by one, none of them can be said
to lead clearly and necessarily to the conclusion that appellant had robbed and killed the
deceased Eulalia Diamse. The quarrel over the use of the bicycle which was supposed
to have taken place two weeks before Eulalia's death does not, in our view, constitute
adequate proof of a motive capable of moving a person to slay another in such a violent
and gory manner. Failure to prove a credible motive where no identification was shown
at all, certainly weakens the case of the prosecution.
The testimony of Herminia Valencia about the single slipper that she found near or
under the cabinet in the living room where Eulalia Diamse was slain, can scarcely be
regarded as conclusive evidence that such slipper was indeed one of the very same
pair of slippers that she had given to appellant's wife, who was also the sister of
Herminia's husband. Rubber or beach, walk slippers are made in such quantities by
multiple manufacturers that there must have been dozens if not hundreds of slippers of
the same color, shape and size as the pair that Herminia gave to appellant's wife. And
even if conclusive identification of the slippers had been offered, and it is assumed that
appellant (rather than his wife) had worn those very slippers on that fatal afternoon, still
the presence of that singular slipper did not clearly and directly connect the appellant to
the robbery or the slaying. At most, under that assumption, the presence of that slipper
in the house of the Valencias showed that the accused had gone to the house of the
Valencias and there mislaid that slipper. We note in this connection, that appellant
himself had testified that he did enter the house of the Valencias that afternoon,
but after the killing of Eulalia Diamse had been perpetrated, and there had found many
persons in the house viewing the body.

The testimony of Gloria Capulong that she saw the accused in the afternoon of 31
January 1978 around 3:00 p.m. in the yard of the Valencias, standing and holding a
bicycle and doing nothing is, by itself, not proof of any act or circumstance that would
show that appellant had perpetrated the slaying or the robbery. The behaviour of the
appellant, as testified to by Gloria Capulong, offers no basis for supposing that
appellant, himself 72 years of age, had just slain an 88-year old woman by skewering
her through the neck and had ransacked both floors of the Valencia house.
Appellant's failure to present himself to pay his respects to the deceased or her
immediate family during the four-day wake, does not give rise to any inference that
appellant was the slayer of Eulalia Diamse. Appellant had explained that he had been
busily at work, sewing and carrying on his trade as a tailor. Appellant, as already noted,
had dropped in the Valencias' house in the afternoon Eulalia Diamse was killed and had
viewed the body (before it was lying in state) along with several other persons. His
reluctance or inability to participate in the formal wake is not necessarily a sign of guilt.
We are unable to agree with the trial judge that such behaviour was "contrary to the
ordinary experience of man" although respect for the dead is a common cultural trait of
the Filipinos.
In the Solicitor-General's brief, it is casually contended that the circumstantial evidence
against appellant included: "the attempt on the part of appellant Pioquinto de Joya
through his counsel to settle the case amicably." 6 We have examined the testimony
that the Solicitor General pointed to in referring to a supposed attempt to settle the
criminal charge amicably. That testimony, given by Arnedo Valencia, son-in-law of the
deceased Eulalia Diamse and brother-in-law of appellant Pioquinto de Joya, was as
follows:
Q You also testified that before the release of the accused
from the municipal jail, you had a conversation with him, is
that right?
A Yes, air.
Q What was this conversation about?
A He called for me and took me to his counsel Atty. Aguilar
and according to him if only Atty. Aguilar can talk with me,
everything will be settled.
Q Have you seen and talked to this Atty. Aguilar?
A Yes, I went with him to Manila, sir.
Q When was this?

A The time he was fetched out of jail.

Q You are referring to the municipal jail?
A Yes, sir.
Q What did you and Atty. Aguilar discuss when you finally
was able to see Atty. Aguilar?
A When I went there, I was introduced to Atty. Aguilar and
Atty. Aguilar asked me as to what I liked to happen.
Q What did you say?
A I said if it will be settled, well and good.
Q Anything else that transpired?
A He even told me if I might be able to convince both my
wife and her sisters.
Q Did he tell you he can settle this?
A He was very certain that he can settle this, the very reason
why he told me because I was very certain as to what
happened.
Q Was the accused Pioquinto de Joya present when you
were discussing this with his lawyer?
A Yes, sir
Q He heard what his, lawyer was telling you?
A It is possible because he is only one or two meters
distance away.
Q Did the accused say anything?
A None, sir. (Emphasis supplied)
We find the above testimony quite impalpable and inconclusive so far as a supposed
attempt of appellant, through his counsel, to offer a compromise on the criminal charge

is concerned. We are aware of the provision of Section 24 of Rule 130 of the Rules of
Court which provides that
Sec. 24. Offer to compromise not admission. An offer of compromise is not
an admission that anything is due, and is not admissible in evidence
against the person making the offer. However, in criminal cases which are
not allowed by law to be compromised, an offer of compromise by the
accused may be received in evidence as an implied admission of guilt.
(Emphasis supplied)
We do not, however, feel justified in concluding from the above testimony from a
member of the (extended) family of the deceased victim that "an offer of compromise"
had been made "by the accused" nor that "an implied admission of guilt" on the part of
the appellant may be reasonably inferred in the instant case. The trial court itself made
no mention of any attempt on the part of appellant to settle the criminal case amicably
through the defense counsel; we must assume that the trial court either did not believe
that appellant had tried to compromise the criminal case or considered that appellant
could not fairly be deemed to have impliedly admitted that he had indeed robbed and
killed Eulalia Diamse. A much higher level of explicitness and specific detail is
necessary to justify a conclusion that an accused had impliedly admitted his guilt of a
crime as serious as robbery with homicide.
The totality of the case made out against appellant De Joya thus consists of an
incomplete, aborted, dying declaration and a number of circumstances which, singly or
collectively, do not necessarily give rise to a compelling inference that appellant had
indeed robbed and slain Eulalia Diamse. We consider, after prolonged scrutiny, that the
sum total of the evidence in the instant case is insufficient to induce that moral certainty
of guilt which characterizes proof beyond reasonable doubt. The conscience of the
Court remains uneasy and unsettled after considering the nature and speculative
character of the evidence supporting the judgment of conviction.
The Court must, accordingly, hold as it hereby holds that appellant's guilt of the crime of
robbery and homicide was not shown beyond reasonable doubt.
ACCORDINGLY, the decision of the trial court dated 16 May 1986 is hereby
REVERSED and appellant Pioquinto de Joya is hereby ACQUITTED on grounds of
reasonable doubt.
It is so ordered.
Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. No. 28871

September 19, 1928

THE
PEOPLE
OF
THE
PHILIPPINE
ISLANDS, plaintiff-appellee,
vs.
CLEMENTE BABIERA, JUSTO BABIERA and DOMINGA BORES, defendantsappellants.
Zulueta
and
Cordova
and
Jesus
Office of the Solicitor-General Reyes for appellee.

Trinidad

for

appellants.

VILLA-REAL, J.:
This is an appeal taken by Clemente Babiera, Justo Babiera and Dominga Bores from
the judgment of the Court of First Instance of Iloilo finding them guilty of the crime of
murder, the first as principal, and the last two as accomplices, sentencing the former to
life imprisonment with the accessories of article 54 of the Penal Code, and each of the
latter to fourteen years, eight months and one day cadena temporal, with the
accessories of article 54 and 59 of the Penal Code, respectively, and all three to
indemnify the family of the deceased Severino Haro in the sum of P1,000 jointly and
severally, and each of them to pay one-third of the costs of the action in the justice of
the peace court and the Court of First Instance.
The six alleged errors assigned by the accused as committed by the trial court in its
judgment may be shifted down to the following propositions:
1. That the evidence adduced at the trial by the prosecution has not established the guilt
of the defendants-appellants beyond a reasonable doubt.
2. The Exhibit I of the prosecution is not an ante-mortem declaration and is therefore
inadmissible as evidence.
3. That the offended party's quarrelsome disposition can be proved in the trial to
determine who began the attack.
Before discussing the evidence adduced by both parties and determining its weight and
probatory value, it is well to decide the questions raised by the appellants on the
admissibility of evidence.
The first question of this nature refers to the character of the document Exhibit I, which
is a statement made by Severino Haro in Saint Paul's Hospital of Iloilo on the morning
after the crime was committed.

Although said statement in itself is inadmissible as an ante-mortem declaration,

inasmuch as there is nothing to show that at the time he made it Severino Haro knew or
firmly believed that he was at the point of death, nevertheless, having ratified its
contents a week later when he was near death as a result of his wounds, said
declaration is admissible as a part of that which he made ante-mortem "A statement
made under circumstances which would not render it admissible as a dying declaration
becomes admissible as such, it is held, if approved or repeated by the declarant after he
had abandoned all hope of recovery." (30 Corpus Juris, 257.)
Passing now to a consideration of the evidence, the prosecution tried to proved the
following facts:
Justo Babiera was the owner of two parcels of land situated in the municipality of Oton,
Province of Iloilo, Philippine Islands. On October 19, 1922 Justo Babiera executed a
contract of sale with the right of repurchase in favor of Basilio Copreros whereby he sold
the two parcels of land to the latter for the sum of P124 with the condition that if the
vendor did not repurchase them on or before August 1, 1923, the sale would become
absolute and irrevocable (Exhibit F). The period for repurchase having expired, Basilio
Copreros took possession of said two parcels of land, and on March 24, 1927, made
application to the registrar of deeds for the Province of Iloilo for the registration of the
consolidation of his title to said parcels. On the 26th of the said month, Basilio Copreros
leased said parcels to Severino Haro, municipal president of Oton (Exhibit G and G-1).
In view of this, on March 31, 1927, Justo Babiera filed a complaint against Basilio
Copreros in the justice of the peace court of Oton for the recovery of the possession of
said two parcels of land. The complaint having been dismissed on April 19, 1927 on the
ground that it did not allege facts sufficient to constitute a cause of action, Justo Babiera
appealed to the Court of First Instance of Iloilo (Exhibit M). Later on, said Justo Babiera
asked for the dismissal of the complaint for unlawful detainer and filed another one for
the recovery of property (Exhibit F). Inasmuch as Severino Haro was already in
possession of the aforesaid two parcels of land as lessee, he bore all the expenses in
the case of unlawful detainer as well as in that for recovery of the property.
Fermin Bruces was Severino Haro's copartner on shares in said lands. About the month
of May, 1927, Justo Babiera accompanied by his copartner on shares, Rosendo Paycol,
went to where Fermin Bruces was plowing and asked the latter: "Who told you to plow
here?" Fermin Bruces replied: "Severino Haro." Then Justo Babiera asked him: "If this
Severino tells you to kill yourself, will you do it?" "Of course not," answered Fermin
Bruces. After this interchange of words Justo Babiera told Fermin Bruces to stop
plowing and to tell his master, Severino Haro, to come and plow himself. Fermin Bruces
informed Severino Haro of the incident, and in answer the latter only told him not to
mind it, but to go on plowing.

On another occasion while Fermin Bruces was transplanting rice on the same lands,
Clemente Babiera and Rosendo Paycol arrived and told him that if he continued
working they would pull out someone's intestines. Fermin Bruces also informed
Severino Haro of these threats, who as before, told him not to mind them, but to go on
sowing.
On July 23, 1927, Jose Haro, brother of Severino Haro, visited his land in the barrio of
Bita, which was under the care of Victoriano Randoquile. He was told by the latter that
he lacked palay seeds. At that time, Rosendo Paycol was in his field, Jose Haro and
Victoriano Randoquile approached him and asked him to give them some seeds.
Rosendo Paycol answered that he could not do so because he needed what he had for
his own farms. Haro and Randoquile then asked him: "Which fields do you mean?" "The
fields over which Copreros and Babiera are in litigation," answered Rosendo Paycol.
Surprised at this answer, Jose Haro told Rosendo Paycol that what he said could not be
because the lot in dispute was leased to his brother Severino Haro. Rosendo Paycol
replied that attorney Buenaventura Cordova had told Clemente Babiera and Justo
Babiera that Severino Haro would never be able to reap or enjoy the fruits of the land,
because if they did not win the suit by fair means they would win it by foul.
Ever since he had leased said land Severino Haro visited it rather often, especially
during the months of June and July, which is the sowing season, trying always to return
to town early. To go to the land, which was in the barrio called Bita, there was but a
beaten path that passed by the house of Rosendo Paycol, copartner on shares of Justo
Babiera, where the latter and his family lived.
On August 21, 1927, Severino Haro, as usual, went to visit his land in the barrio of Bita,
accompanied by Gregorio Torrija, Benito Carreon and Pedro Tauro. On arriving there
Fermin Bruces, his copartner on shares, told him that the day before he had found
Clemente Babiera's cow grazing on that land. It happened at that moment Clemente
Babiera and Dominga Bores were passing by. Severino Haro then informed Clemente
Babiera of what his cow had done on the former's land and told him to take better care
of his cow in future and not to let it run loose. He then ordered Fermin Bruces to take
the animal to where the Babiera family lived. Severino Haro was not able to return to
town until almost 7 o'clock in the evening. As it was already dark, he and his
companions had to make use of a torch made out of split bamboo to light them on their
way. Severino Haro went ahead, followed by Pedro Tauro, who carried the torch, some
8 brazas behind, with Gregorio Torrija and Benito Carreon following. On Coming to a
place in the road near Rosendo Paycol's house, Clemente Babiera suddenly sprang
from the cogon grass, went after Severino Haro and struck him with his bolo in the back.
On turning his head to see who had attacked him Severino Haro received another bolo
blow in the forehead near the right eyebrow. In trying to defend himself with his hand he
was wounded between the index finger and the thumb. He then tried to grasp his
assailant but did not succeed and he fell to the ground. Then Justo Babiera appeared

and placing himself upon Severino Haro's stomach, held the latter's hands. Later,
Dominga Bores appeared on the scene and held both knees of the wounded man.
When Justo Babiera arrived, a voice was heard saying: "Hold him, papa," and at the
same time, Severino Haro's voice was heard saying: "Help! help!" Pedro Tauro wished
to come near in order to help Severino Haro, but Clemente Babiera raised his bolo in
the air and kept on brandishing it to warn everybody off. Pedro Tauro, in fear, stepped
back, dropping the torch he carried. Not far from there were also Buenaventura Gabalfin
and Gregorio Paycol, who threatened to kill Severino Haro's companions if they helped
him. After the torch had been extinguished they heard a voice which they recognized as
Severino Haro's saying: "Uncle Justo, have patience with me, for I have done no
wrong." Then they heard another voice, that of Dominga Bores, which said: "Here is the
revolver; let us return." Before the assailants left two or three revolver shots were heard.
When Severino Haro's companions saw that their assailants had already departed, they
drew near to where Severino lay stretched out to see what had happened to him.
Severino Haro told them not to fear for he did not feel as if he were going to die, and
calling his copartner on shares, Fermin Bruces, directed him to bring a cot and take him
to town. Pedro Tauro and Gregorio Torrija did as Severino Haro wished, and on arriving
at the barrio of Santa Monica, they by chance came upon a truck in which were some
policemen. They place the wounded man in the same truck and took him to Saint Paul's
Hospital in the City of Iloilo. When Severino Haro was taken to the town he did not have
his revolver and the cartridge belt, without the holster, was found by Gregorio Torrija
near where the incident took place.
When Severino Haro was already in Saint Paul's Hospital he was examined by Dr.
Mariano Arroy, who issued a certificate stating that he found the following wounds:
Three on the right frontal regions; one on the right forehead taking in the soft parts up to
the auditory arch; on the right palmar arch; another on the left arm; a deep one reaching
down to the spinal column on the four slight wounds on the right thigh; the ones on the
forehead and the dorsal region being mortal of necessity. All the wounds were caused,
in the doctor's opinion, by a sharp-edged and pointed weapon, and while the
combatants were on the same plane, except the wounds on the middle of the calf which
must have been caused while the assaulted party was on a lower plane than his
assailant, and the wounds on the right thigh, which must have been inflicted while the
assailant was on a horizontal plane.
On the same morning, August 22, 1927, and in the same hospital, Severino Haro made
a sworn statement before the deputy fiscal, Edmundo S. Piccio (Exhibit I), relating the
occurrence and mentioning the persons who were present. This sworn statement was
ratified by him before the same deputy fiscal on the 27th of the said month and year
when he had given up all hope of recovery.
In this statement, Exhibit I, Severino Haro, among other things, said the following:

"Without warning, I received a slash on the left shoulder. On turning back my face, I saw
Clemente Babiera, and he then gave me another slash on the forehead just above the
right eyebrow. At that moment I also received a cut on the right hand, because on
receiving the blow on the forehead I defended myself with that hand. I then grasped him
because I could no longer support myself due to my two wounds. Then I fell. When I fell,
Clemente Babiera's father placed himself upon my stomach, while his (Clemente's) wife
sat on my feet, while Justo Babiera, Clemente's father, grasped my two hands and said
to me, "There, now draw your revolver" addressing me. I shouted to my companion for
help, for I felt I would die and while they approached, Clemente Babiera turned upon
them, and said: "Do not approach for you have nothing to do with this. Whoever comes
near gets a slash from this bolo." I shammed death and when they left me, and upon
seeing that neither Clemente, nor his father, nor his wife remained, my three
companions came up to me from their hiding places. One Aunario, copartner on shares
of Jose Abada, who lived near there, also came up to me, and later, Fermin."
In his ante-mortem declaration made on the 27th of August, 1927 before the same
deputy fiscal, Severino Haro, among other things, said the following:
"They repeatedly passed their fingers over my upper lip and at the same time see if I
still breathed; they felt and opened my eyelids and then inserted a finger in my pupil,
because they believed that if I was insensible, I was already dead. They knelt on my
stomach and one knelt on my lower limbs, and made a pass with something, which
seems to me was bamboo or a bolo, over the anterior surface of my calf, and Dominga
then took the revolver from me. I got up because I was afraid Dominga would shoot me
and when I attempted to escape Clemente Babiera pursued me and gave me another
cut on the left side of the waist, and I think the blow struck the ammunition belt, and if it
had not been for the belt it would have severed my waist."
The defense tried to prove the following facts:
On the afternoon of August 21, 1927 Clemente Babiera went to a place called
Caboloan, passing by the house of one Oper, located in the barrio of Bita, Oton, Iloilo.
While he was in Oper's house, his father Justo Babiera arrived, and some moments
later Severino Haro also arrived, and at once said to him: "Clemente, why do you leave
your cow loose?" Clemente denied the imputation and said that his cow was tied.
Severino Haro insisted, and added that said animal had damaged his sugar-cane
plantation, and therefore, Fermin Bruces, his copartner on shares caught and tied it, by
his order, to a mango tree. Clemente Babiera answered that he left the case in his
hands and that he could charge him what he would, for the damages occasioned by his
cow. As Severino Haro charged him P2 for the damage, Clemente told him that at the
moment he had no money, but that on the following day he would get money from the
town market and pay him. Severino Haro accepted the promise and left. Clemente
Babiera in turn retired to his house, together with Dominga Bores and his father, and

upon reaching a coconut palm they met Fermin Bruces, copartner on shares with
Severino Haro, who told them that he had already tied up the cow as per his master's
order. At about 7 o'clock in the evening while Clemente Babiera was in his house
conversing with his father about the land which they had in Caboloan, which was
attached by the Government, he suddenly heard a commotion; he went to the porch of
the house to see what had happened and saw a number of persons coming one
carrying a light and another leading his cow by rope. Clemente Babiera told his father
what he saw and went out to meet said persons, and saw Buenaventura Cabalfin
leading his cow by the rope and Severino Haro followed by his companions Pedro
Tauro, Gregorio Torrija, Benito Carreon, Margarito Mediavilla and Fermin Bruces.
Clemente Babiera then asked Severino Haro: "Why are you taking my cow away?
Haven't I promised to pay you tomorrow the loss caused by the animal? If you have no
confidence in me, then prepare a receipt showing that tomorrow without fail, I will pay
you." In reply, Severino Haro only said to Buenaventura Cabalfin: "Get on, proceed."
Clemente Babiera took hold of the rope by which the cow was led, and said:
"Buenaventura, stop!" Severino Haro then grasped Clemente Babiera by the hand and
pulled him to one side. Clemente Babiera disengaged himself from Severino Haro's
grasp, but Margarito Mediavilla struck him with a bolo at the base of his little finger.
Feeling himself wounded, Clemente Babiera tried to unsheathe his bolo intending to
return the blow to Margarito Mediavilla but failed to do so, because he heard someone
say: "Shoot him!" Immediately thereafter he saw Severino Haro with revolver
unholstered, and without any loss of time he went up to the latter and at that moment
shots were heard. Clemente Babiera then began to slash blindly right and left without
considering what he was at, catching Severino Haro in the back, as a result of which the
latter fell to the ground on his back. Clemente Babiera threw himself upon him, held him
down so he could not get up, and asked him: "Where is your revolver?" Severino Haro
answered that he did not have it. Then Clemente Babiera raised Severino Haro's hands
and felt his back, but did not find the revolver. Justo Babiera, Clemente's father, then
appeared, and was told by his son: "Papa, hold him, while I search for his revolver."
When Clemente Babiera saw Fermin Bruces he thought that the latter meant to attack
him because he had one hand behind, where he carried his bolo, so Severino turned on
him, but his wife, Dominga Bores, restrained him telling him not to approach. One Nario
also wanted to approach in order to defend Severino Haro but dared not do so in view
of Clemente Babiera's threats. After having made fruitless search for Severino Haro's
revolver, Clemente Babiera, his father, and his wife went back to their house.
After charging Rosendo Paycol with the care of the children, the three went to town and
passed the night in Florencio Mayordomo's house. On the following morning Dominga
Bores went to attorney Buenaventura Cordova's house and informed him of what had
happened. Buenaventura Cordova then went to Florencio Mayordomo's house and told
Dominga Bores to return to the place of the incident in order to look for the revolver and
deliver it to the Constabulary if she found it. Then he accompanied Clemente Babiera to
the office of Captain Gatuslao of the Constabulary at Fort San Pedro, to whom they

delivered the holster of the revolver and the three shells they had picked up on the night
of the incident. Dominga Bores having found the revolver in a furrow near the place of
the crime took it to Iloilo and delivered it to Captain Gatuslao of the Constabulary
between 9 and 10 o'clock in the morning.
Dr. Jose Gonzales Roxas, Constabulary physician, treated Clemente Babiera's wound
and certified that the same was 2 centimeters long and half a centimeter deep and was
situated at the base of the little finger of the right hand, taking in the cellular tissue of the
skin and the exterior ligament of the wrist.
In rebuttal, the prosecution tried to prove that at about half past five in the morning of
August 22, 1927, Dominga Bores was seen in the ground floor of the provincial
government building of Iloilo, carrying a package under her arm and from there she
went to the public market of Iloilo.
There is no question that Severino Haro had leased from Basilio Copreros two parcels
of land the ownership of which had passed to him due to Justo Babiera's failure to
repurchase them within the stipulated period. Nor is there any question that the latter
tried to recover them, first, by an accion publiciana (action for unlawful detainer), and
then by an action for the recovery of possession. There is likewise no question that
Severino Haro paid the expenses of the defendant Basilio Copreros for the reason that
he was already in possession of said lands as lessee. There is also no question that
Clemente Babiera's cow damaged the plantings of Fermin Bruce, for which reason the
letter caught said cow, tied it, and notified his master of the matter when the latter went
to visit the lands leased by him. Neither is there any question that there was an
agreement between Clemente Babiera and Severino Haro whereby the latter ordered
his copartner on shares Fermin Bruces, to take the cow near Clemente Babiera's house
and tie it up there. In like manner there is no question that at about 7 o'clock in the
evening of August 21, 1927, when Severino Haro and his companions were returning to
the town of Oton, and upon their coming near Rosendo Paycol's house, in which were
Clemente Babiera, his father Justo Babiera, and his mistress Dominga Bores, said
Severino Haro had an encounter with Clemente Babiera in which Severino Haro
received several wounds in consequence of which he died a week later in Saint Paul's
Hospital of Iloilo.
The only question to determine in the present appeal is whether, as the prosecution
contends, Severino Haro was suddenly and treacherously attacked by Clemente
Babiera, aided by his father and his mistress Dominga Bores; or, as the defense
contends, Severino Haro notwithstanding the agreement between himself and Clemente
Babiera by which the latter was to indemnify him for the damages caused by his cow,
wanted to take the animal to town; that in trying to prevent it, Clemente Babiera was
grasped by the hand by Severino Haro and pulled to one side; that in disengaging
himself Clemente Babiera received a bolo cut from Margarito Mediavilla that wounded

the little finger of his right hand; and that Severino Haro then unsheathed his revolver
and fired several shots, in view of which Clemente Babiera struck right and left with his
bolo, thus causing the former's wounds.
In order to decide the question thus raised, it is necessary to take into account all the
circumstances, previous, coetaneous and subsequently to the incident in question, and
to determine who had, or could have had, motives to assault the other.
We have seen that Justo Babiera sold two parcels of land to Basilio Copreros with the
right of repurchase, and that, having failed to repurchase them within the period
stipulated, the title thereto was consolidated, in the purchaser, who leased them to
Severino Haro, the latter taking possession of them. Justo Babiera restored to every
lawful means to regain possession of said parcels of land, first by an accion publiciana,
which failed, and then by an action for the recovery of possession. Severino Haro paid
the expenses of Basilio Copreros in order to carry on the suits. Such interested
intervention on Severino Haro's part without doubt must have vexed Justo Babiera, for
in the month of May 1927, he went with his copartner on shares, Rosendo Paycol, to
where Fermin Bruces, Severino Haro's copartner, was plowing, and asked him who had
ordered him there, and when Fermin Bruces answered that it was Severino Haro, Justo
asked him whether he would commit suicide if told to do so by said Severino Haro, and
then told him to tell his master to go and plow himself. Later on, Clemente Babiera,
Justo Babiera's son, accompanied by his copartner Rosendo Paycol, seeing that Fermin
Bruces went on working the land, told him that if he continued plowing, Clemente would
pull out someone's intestines. If all these threats are true, as we believe they are, then
Justo Babiera and Clemente Babiera must have borne Severino Haro deep resentment,
doubtless believing that it was due to him that they could not recover their two parcels of
land, and this was sufficient and adequate to move them, upon the failure of lawful
means, to resort to violence.
It has been contended by the defense that the defendant-appellant, Clemente Babiera,
only acted in defense of his life and property, having been obliged to resort to arms on
seeing his life endangered, contending that the provocation consisted in that after
Severino Haro had agreed to an indemnity of P2 for the damage caused, the latter
wanted to take Clemente Babiera's cow to the town, and that the attack consisted in that
Margarito Mediavilla gave him a bolo blow on the little finger of the right hand, and that
Severino Haro threatened him with his revolver and fired several shots at him.
Examined in the light of the ordinary conduct of men, Severino Haro's alleged attitude,
in having tried to take Clemente Babiera's cow after having agreed to accept P2 for the
damages, and having ordered that the animal be returned to its owner, is highly illogical,
and not a scintilla of evidence has been presented to explain this change of
determination, as unexpected as it is unreasonable.

With respect to the allegation that Margarito Mediavilla and Severino Haro began the
attack, inasmuch as it has not been proved that they were the instigators, it cannot be
conceived that they committed said unlawful aggression, for he who has no reason to
provoke, has no reason to attack unlawfully.
The defense also attempted to prove that Severino Haro was of a quarrelsome
disposition, provoking, irascible, and fond of starting quarrels in the municipality of Oton,
but the trial judge would not permit it.
While it is true that when the defense of the accused is that he acted in self-defense, he
may prove the deceased to have been of a quarrelsome, provoking and irascible
disposition, the proof must be of his general reputation in the community and not of
isolated and specific acts (Underhill Criminal Evidence, par. 325, p.570), such as the
accused Clemente Babiera tried to prove, and hence the lower court did not err in not
admitting such proof. But even if it had been proved by competent evidence that the
deceased was of such a disposition, nevertheless, it would not have been sufficient to
overthrow the conclusive proof that it was the said accused who treacherously attacked
the deceased.
Another circumstance which shows the falsity of the theory of the defense is that of
having made Buenaventura Cabalfin take part as the person whom Severino Haro
employed to lead Clemente Babiera's cow. If Severino Haro's copartner, Fermin Bruces,
whom he had told to return said cow to Clemente Babiera was with his master on that
night, together with other companions, what need was there of said Severino Haro's
employing the services of another person and one not belonging to his group? The plan
of the defense necessitated a provocation and to that end they conceived the idea of
the breach of the supposed agreement on the return of the animal through the payment
of an indemnity of P2, making use as an instrument of one on whom the defense could
depend to serve as witness, and there was no one better suited for such a purpose than
Buenaventura Cabalfin who according to the witnesses for the prosecution, was at the
place of the crime with Gregorio Paycol threatening the deceased's friends if they
offered to help him.
To rebut the evidence of the prosecution that Dominga Bores was the one who by order
of Clemente Babiera took Severino Haro's revolver from him on the night in question,
the defense tried to prove that on the following morning attorney Buenaventura
Cordova, a relative of the Babieras, told Dominga Bores to return to the place of the
incident and look for said weapon, and that she found it in a furrow near the place and
took it to the office of the Constabulary in Iloilo between 9 and 10 o'clock in the morning.
But the rebuttal evidence of the prosecution disproved this contention and showed that
Dominga Bores did not have to look for the revolver in the field, since at half past five in
the morning she was already in the provincial building of Iloilo carrying a package under
her arm.

With regard to the small wound at the base of the little finger of the right hand which
Clemente Babiera showed to the Constabulary physician as having been caused by
Margarito Mediavilla, we are convinced that the latter was not in the company of
Severino Haro on the night in question and could not have inflicted such a wound.
Bearing in mind the plan of the defense, it may safely be said that in order to cast an
appearance of reality on the concocted plea of an unlawful attack and self-defense,
Clemente Babiera inflicted on himself the slight wound; since, if in order to escape
military service there were men who mutilated themselves, who would not wound
himself slightly in order to escape a life penalty?
The facts related above have been proven beyond a reasonable doubt and constitute
the crime of murder defined in article 403 of the Penal Code, there being present at the
commission of the crime, the qualifying circumstance of treachery, consisting in the
accused Clemente Babiera having attacked Severino Haro suddenly while the latter had
his back turned, inflicting various wounds on his body as a result of which he died a
week later, said Clemente Babiera being criminally liable as principal by direct
participation.
Justo Babiera and Dominga Bores are also liable but as accomplices, because, while
they did not take a direct part in the infliction of the wounds that caused Severino Haro's
death, or cooperated by acts without which they could not have been inflicted, or
induced Clemente Babiera to inflict them, yet they took part in the commission of the
crime by simultaneous acts consisting in the former having mounted Severino Haro's
body and held down his hands, while the latter sat on his knees while he lay stretched
out on the ground in order to allow Clemente Babiera to search the body for his
revolver, Justo Babiera and Dominga Bores cannot be held as accomplices of the crime
of murder, inasmuch as it does not appear to have been proven that they knew the
manner in which Clemente Babiera was going to assault Severino Haro, in accordance
with the provision of article 79 of the Penal Code, to the effect that the circumstances
which consist in the material execution of the act, or in the means employed to
accomplish it, shall serve to aggravate or mitigate the liability of those persons only who
had knowledge of them at the time of the act or their cooperation therein. Although in
the instant case the treachery is not considered a generic aggravating, but a qualifying
circumstance, nevertheless, it does not fail to produce a special aggravation.
To graduate the penalty, we are not to consider any modifying circumstance of the
criminal liability, for while it is true that Clemente Babiera took advantage of the
darkness of nighttime, this circumstance is included in treachery, inasmuch as,
considering the fact that Severino Haro was followed by several companions, the
accused would not have been able to conceal himself in the cogon grass nor attack the
deceased from behind without being seen in time and prevented from executing his
criminal purpose had not been for the darkness of the night.

The penalty provided by law for the crime of murder namely, that of cadena temporal in
its maximum degree to death must therefore be imposed upon Clemente Babiera in its
medium degree, that is, life imprisonment.
The penalty provided for in article 404 of the Penal Code for the crime of homicide
is reclusion temporal in its full extent, and the one next lower is prision mayor in its full
extent, which is the penalty that must be imposed on Justo Babiera and Dominga Bores
as accomplices in the crime of homicide (art. 67, Penal Code). In graduating the
penalty, the aggravating circumstances of nocturnity must be taken into consideration,
without any extenuating circumstances to offset it, and therefore said penalty of prision
mayor must be imposed in its maximum degree, that is, ten years and 1 day.
As there are three persons civilly liable, one as principal in the crime of murder and two
as accomplices in that of homicide, we must fix the share, for which each must answer,
of the P1,000 fixed by the trial court, in accordance with the provision of article 124 of
the Penal Code, that is, P600 for Clemente Babiera and P400 for Justo Babiera and
Dominga Bores, each of the latter being liable solidarily between themselves for their
share, and subsidiarily liable for the share of the former and the former for the share of
the latter, according to the provision of article 125 of the same Code.
By virtue whereof, the appealed judgment is hereby modified, and it is held that Justo
Babiera and Dominga Bores are guilty of the crime of homicide as accomplices and
each sentenced to ten years and 1 day prision mayor, and to pay the sum of P400
jointly and severally, and Clemente Babiera to pay the sum of P600, the former to be
subsidiarily liable for the latter's share, and the latter for the former's share, payment to
be made to the heirs of the deceased Severino Haro, the appealed judgment being
affirmed in all other respects with the proportional costs against each. So ordered.
FIRST DIVISION
[G.R. No. 111692. February 9, 1996]
ALEJANDRO FUENTES, JR., petitioner, vs. COURT OF APPEALS and PEOPLE OF
THE PHILIPPINES, respondents.
DECISION
BELLOSILLO, J.:
Still professing innocence and insisting that he is a victim of mistaken identity,
petitioner Alejandro Fuentes, Jr., seeks reversal of the decision of the Court of Appeals
affirming his conviction for murder.[1]

At four o clock in the morning of 24 June 1989 Julieto Malaspina together with
Godofredo Llames, Honorio Osok and Alberto Toling, was at a benefit dance at Dump
Site, Tudela, Trento, Agusan del Sur. Petitioner called Malaspina and placed his right
arm on the shoulder of the latter saying, Before, I saw you with a long hair but now you
have a short hair.[2]Suddenly petitioner stabbed Malaspina in the abdomen with a
hunting knife. Malaspina fell to the ground and his companions rushed to his side.
Petitioner fled. Before the victim succumbed to the gaping wound on his abdomen he
muttered that Alejandro Fuentes, Jr., stabbed him. [3]
Dr. Porfirio L. Salubre, the Rural Health Physician who autopsied the cadaver of
Julieto Malaspina on 24 July 1989, reported that death was due to stab wound at left
lumbar region I V2in. in length with extracavitation of the small and large intestines. [4]
Petitioner claims on the other hand that it was his cousin Zoilo Fuentes, Jr., alias
Jonie who knifed Malaspina; that when the victim was killed he was conversing with
him; that he was compelled to run away when he heard that somebody with a bolo and
spear would kill all those from San Isidro because Jonie, the killer, was from that place;
that since he was also from San Isidro he sought refuge in his brothers house where he
met Jonie; that Jonie admitted spontaneously that he stabbed Malaspina because after
a boxing match before the latter untied his gloves and punched him; that as there were
many persons milling around the house Jonie jumped out and escaped through the
window; that he was arrested at eight oclock in the morning of 24 June 1989 while he
was in a store in the barangay.[5]
The Regional Trial Court of Prosperidad, Agusan del Sur, found petitioner guilty of
murder qualified by treachery and imposed on him an indeterminate prison term of ten
(10) years and one (1) day of prision mayor as minimum to seventeen (17) years and
four (4) months of reclusion temporal as maximum, to indemnify the heirs of the victim
Julieto Malaspina the amount of P50,000.00 and to pay P8,300.00 as actual damages
plus costs.[6]
The Court of Appeals affirmed the judgment of the trial court; hence, this petition for
review.
Petitioner contends that the appellate court erred when it held that petitioner was
positively and categorically identified as the killer of Malaspina, in affirming the judgment
of conviction and in holding petitioner liable for damages to the heirs of the victim.
Petitioner points to an alleged inconsistency between the testimonies of prosecution
witnesses Alberto Toling and Honorio Osok to the effect that they saw petitioner stab
Malaspina on the right lumbar region, and the testimony of the attending physician that
the victim was stabbed on the left lumbar region.

This discrepancy is inconsequential. What is material is that Malaspina was stabbed

to death and that three (3) prosecution witnesses positively identified petitioner as the
knife wielder. It must be stressed that these witnesses had known petitioner for quite
some time and never had any personal misunderstanding nor altercation with the latter
as to create any suspicion that they were impelled by ill motives to falsely implicate him.
That it was another person who committed the offense is too incredible. No less
than petitioners own witness, Nerio Biscocho who claimed he also saw the killing,
testified that Alejandro Fuentes, Jr., the petitioner, and Jonie Fuentes are one and the
same person. Thus COURT:
Q. Who is this Joni Fuentes and Alejandro Fuentes?
A. That Joni Fuentes is the same of that or the accused Alejandro Fuentes. I do
not know his real name but he is called as Joni, sir, x x x [7]
On cross-examination witness Biscocho further admitted that he himself would call
petitioner Alejandro Fuentes, Jr., as Joni or Jonie Fuentes, as some of his friends did,
but victim Malaspina occasionally called petitioner Junior.[8]
Petitioner would make much of the alleged confession of Zoilo Fuentes, Jr., since it
is a declaration against penal interest and therefore an exception to the hearsay rule.
The so-called confession of Zoilo was allegedly given to Felicisimo Fuentes, the uncle
of petitioner and Zoilo, who in turn relayed the matter to P/Sgt. Benjamin Conde, Jr.
Felicisimo testified that on 24 June 1989 while he was at Barangay San Isidro, Zoilo
Fuentes, Jr., confessed that he killed Malaspina in retaliation; that he even showed him
the knife he used and asked his help in finding a lawyer, in securing bail and, if possible,
in working out a settlement with the relatives of the deceased. The following day
however he learned that the self-confessed killer was gone and that petitioner had been
arrested for a crime he did not commit.[9]
For his part, Station Commander P/Sgt. Conde, Jr., testified that after the criminal
information for murder was filed on 26 July 1989, petitioner met Felicisimo who informed
him of the disclosure by Zoilo. Conde then advised Felicisimo that if it was true that it
was Zoilo who fatally stabbed Malaspina Felicisimo must persuade Zoilo to surrender.
Conde then personally went to Barangay San Isidro to investigate. There he was told by
the townsfolk that Zoilo had already fled).[10]
One of the recognized exceptions to the hearsay rule is that pertaining to
declarations made against interest. Sec. 38 of Rule 130 of the Rules of Court provides
that (t)he declaration made by a person deceased, or unable to testify, against the
interest of the declarant, if the fact asserted in the declaration was at the time it was

made so far contrary to declarants own interest, that a reasonable man in his position
would not have made the declaration unless he believed it to be true, may be received
in evidence against himself or his successors in interest and against third persons. The
admissibility in evidence of such declaration is grounded on necessity and
trustworthiness.[11]
There are three (3) essential requisites for the admissibility of a declaration against
interest: (a) the declarant must not be available to testify; (b) the declaration must
concern a fact cognizable by the declarant; and (c) the circumstances must render it
improbable that a motive to falsify existed.
In the instant case, we find that the declaration particularly against penal interest
attributed to Zoilo Fuentes Jr. is not admissible in evidence as an exception to the
hearsay rule. We are not unaware of People Toledo,[12] a 1928 case, where Justice
Malcolm writing for the Court endeavored to reexamine the declaration of third parties
made contrary to their penal interest. In that case, the protagonists Holgado and
Morales engaged in a bob duel. Morales was killed almost instantly. Holgado who was
seriously wounded gave a sworn statement (Exh. 1) before the municipal president
declaring that when he and Morales fought there was nobody else present. One (1)
month later Holgado died from his wounds. While the Court was agreed thatToledo, who
reportedly intervened in the fight and dealt the mortal blow, should be exonerated on
reasonable doubt, the members did not reach an accord on the admissibility of Exh. 1.
One group would totally disregard Exh. 1 since there was ample testimonial evidence to
support an acquittal. The second group considered Exh. 1 as part of the res gestae as it
was made on the same morning when the fight occurred. A third group, to which Justice
Malcolm belonged, opined that the court below erred in not admitting Exh. 1 as the
statement of a fact against penal interest.
For all its attempt to demonstrate the arbitrariness behind the rejection in certain
cases of declarations against penal interest, the Toledo case cannot be applied in the
instant case which is remarkably different. Consider this factual scenario: the alleged
declarant Zoilo Fuentes Jr., a cousin of accused-appellant, verbally admitted to the
latter, and later to their common uncle Felicisimo Fuentes, that he (Zoilo) killed the
victim because of a grudge, after which he disappeared. One striking feature that
militates against the acceptance of such a statement is its patent untrustworthiness.
Zoilo who is related to accused-appellant had every motive to prevaricate. The same
can be said of accused-appellant and his uncle Felicisimo. Secondly, we need not resort
to legal rhetorics to find that the admission of such a statement may likewise be,
according to Wigmore, shocking to the sense of justice. [13] Let us assume that the trial
court did admit the statement of Zoilo and on that basis acquitted accused-appellant.
Let us assume further that Zoilo was subsequently captured and upon being confronted
with his admission of guilt readily repudiated the same. There is nothing, absolutely
nothing, that can bind Zoilo legally to that statement.

But more importantly, the far weightier reason why the admission against penal
interest cannot be accepted in the instant case is that the declarant is not unable to
testify. There is no showing that Zoilo is either dead, mentally incapacitated or physically
incompetent which Sec. 38 obviously contemplates. His mere absence from the
jurisdiction does not make him ipso facto unavailable under this rule.[14] For it is
incumbent upon the defense to produce each and every piece of evidence that can
break the prosecution and assure the acquittal of the accused. Other than the gratuitous
statements of accused-appellant and his uncle to the effect that Zoilo admitted having
killed Malaspina, the records show that the defense did not exert any serious effort to
produce Zoilo as a witness. Lest we be misunderstood, the Court is always for the
admission of evidence that would let an innocent declaration of guilt by the real culprit.
But this can be open to abuse, as when the extrajudicial statement is not even
authenticated thus increasing the probability of its fabrication; it is made to persons who
have every reason to lie and falsify; and it is not altogether clear that the declarant
himself is unable to testify. Thus, for this case at least, exclusion is the prudent recourse
as explained in Toledo -The purpose of all evidence is to get at the truth. The reason for
the hearsay rule is that the extrajudicial and unsworn statement of another is not the
best method of serving this purpose. In other words, the great possibility of the
fabrication of falsehoods, and the inability to prove their untruth, requires that the doors
be closed to such evidence.[15]
The Court of Appeals as well as the trial court correctly determined the crime to be
murder qualified by treachery. The suddenness of the attack, without any provocation
from the unsuspecting victim, made the stabbing of Malaspina treacherous. [16] However,
the court a quo erred in imposing an indeterminate prison term of ten (10) years and
one (1) day of prision mayor as minimum to seventeen (17) years and four (4) months
of reclusion temporal as maximum. Murder under Art. 248 of The Revised Penal Code
is punishable by reclusion temporalin its maximum period to death. Since aside from
treachery qualifying the crime to murder there is no other modifying circumstance
proved, the medium period of the penalty, i.e. reclusion perpetua, should have been
imposed on petitioner.[17]
Petitioner maintains that assuming that he committed the crime it is error to hold
him answerable for P8,300.00 as actual damages on the basis of the mere testimony of
the victims sister, Angelina Serrano, without any tangible document to support such
claim. This is a valid point. In crimes and quasi-delicts, the defendant is liable for all
damages which are the natural and probable consequences of the act or omission
complained of.[18] To seek recovery for actual damages it is essential that the injured
party proves the actual amount of loss with reasonable degree of certainty premised
upon competent proof and on the best evidence available. [19] Courts cannot simply rely
on speculation, conjecture or guesswork in determining the fact and amount of
damages.[20]

The award by the court a quo of P8,300.00 as actual damages is not supported by
the evidence on record. We have only the testimony of the victims elder sister stating
that she incurred expenses of P8,300.00 in connection with the death of Malaspina.
[21]
However, no proof of the actual damages was ever presented in court. Of the
expenses alleged to have been incurred, the Court can only give credence to those
supported by receipts and which appear to have been genuinely expended in
connection with the death of the victim. Since the actual amount was not substantiated,
the same cannot be granted.[22]
WHEREFORE, the judgment appealed from finding petitioner ALEJANDRO
FUENTES JR. guilty of MURDER and directing him to indemnify the heirs of Julieto
Malaspina in the amount of P50,000.00 plus costs is AFFIRMED with the modification
that the penalty imposed should be as it is corrected to reclusion perpetua, and the
award of actual damages is deleted.
SO ORDERED.
Republic
SUPREME
Baguio City

of

the

Philippines
COURT

FIRST DIVISION
G.R. NO. 146556

April 19, 2006

DANILO
L.
vs.
SIMEON B. PRUDENCIO, Respondent.

PAREL, Petitioner,

DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari filed by Danilo Parel (petitioner) which
seeks to set aside the Decision1 dated March 31, 2000 of the Court of Appeals (CA)
which reversed the Decision of the Regional Trial Court (RTC), Branch 60, Baguio, in
Civil Case No. 2493-R, a case for recovery of possession and damages. Also assailed
is CA Resolution2 dated November 28, 2000.
On February 27, 1992, Simeon Prudencio (respondent) filed a complaint for recovery of
possession and damages against petitioner with the RTC Baguio alleging that: he is the
owner of a two-storey residential house located at No. 61 Forbes Park National
Reservation near Department of Public Service (DPS) compound, Baguio City; such
property was constructed solely from his own funds and declared in his name under Tax

Declaration No. 47048; he commenced the construction of said house in 1972 until its
completion three years later; when the second floor of said house became habitable in
1973, he allowed petitioners parents, Florentino (now deceased) and Susan Parel, to
move therein and occupy the second floor while the construction of the ground floor was
on-going to supervise the construction and to safeguard the materials; when the
construction of the second floor was finished in 1975, respondent allowed petitioners
parents and children to transfer and temporarily reside thereat; it was done out of sheer
magnanimity as petitioners parents have no house of their own and since respondents
wife is the older sister of Florentino, petitioners father; in November 1985, respondent
wrote Florentino a notice for them to vacate the said house as the former was due for
retirement and he needed the place to which petitioners parents heeded when they
migrated to U.S. in 1986; however, without respondents knowledge, petitioner and his
family unlawfully entered and took possession of the ground floor of respondents
house; petitioners refusal to vacate the house despite repeated demands prompted
respondent to file the instant action for recovery of possession. Respondent also asked
petitioner for a monthly rental of P3,000.00 from April 1988 and every month thereafter
until the latter vacates the said premises and surrender possession thereof; and for
moral and exemplary damages, attorneys fees and cost of suit.
Petitioner filed his Answer with Counterclaim alleging that: his parents are the coowners of the said residential house, i.e., the upper story belongs to respondent while
the ground floor pertains to petitioners parents; he is occupying the ground floor upon
the instruction of his father, Florentino, with respondents full knowledge; his parents
spent their own resources in improving and constructing the said two-storey house as
co-owners thereof; the late Florentino was an awardee of the land on which the house
stands and as a co-owner of the house, he occupied the ground floor thereof; the
demand to vacate was respondents attempt to deprive petitioners parents of their
rights as co-owner of the said house; that respondent had filed ejectment case as well
as criminal cases against them involving the subject house which were all dismissed.
Petitioner asked for the dismissal of the complaint and prayed for damages and
attorneys fees.
After trial on the merits, the RTC rendered a Decision 3 dated December 15, 1993, the
dispositive portion of which reads:
WHEREFORE, premises considered, the Court hereby declares that the house erected
at No. 61 DPS Compound, Baguio City is owned in common by the late Florentino Parel
and herein plaintiff Simeon Prudencio and as such the plaintiff cannot evict the
defendant as heirs of the deceased Florentino Parel from said property, nor to recover
said premises from herein defendant.
Likewise, the plaintiff is ordered to:

(a) pay the defendant in the total sum of P20,000.00 for moral and actual
damages;
(b) pay the defendant P20,000.00 in Attorneys fees and P3,300.00 in
appearance fees;
(c) pay the costs of this suit.4
The RTC found the following matters as conclusive: that petitioners father was an
allocatee of the land on which the subject house was erected, as one of the lowly-paid
government employees at that time when then Mayor Luis Lardizabal gave them the
chance to construct their own house on said reservation; that respondent failed to show
proof of any contract, written or oral, express or implied, that the late Florentino and his
family stayed on the house not as co-owners but as mere lessees, nor any other proof
that would clearly establish his sole ownership of the house; and, that the late Florentino
was the one who gathered the laborers for the construction of the house and paid their
salaries. Thus, the RTC ruled that co-ownership existed between respondent and
petitioners father, Florentino.
The RTC concluded that respondent and petitioners father agreed to contribute their
money to complete the house; that since the land on which said house was erected has
been allocated to petitioners father, the parties had the understanding that once the
house is completed, petitioners father could keep the ground floor while respondent the
second floor; the trial court questioned the fact that it was only after 15 years that
respondent asserted his claim of sole ownership of the subject house; respondent failed
to disprove that petitioners father contributed his own funds to finance the construction
of the house; that respondent did not question (1) the fact that it was the deceased
Florentino who administered the construction of the house as well as the one who
supplied the materials; and (2) the fact that the land was in Florentinos possession
created the impression that the house indeed is jointly owned by respondent and
Florentino.
The RTC did not give credence to the tax declaration as well as the several documents
showing the City Assessors assessment of the property all in respondents name since
tax declarations are not conclusive proof of ownership. It rejected the affidavit executed
by Florentino declaring the house as owned by respondent saying that the affidavit
should be read in its entirety to determine the purpose of its execution; that it was
executed because of an advisement addressed to the late Florentino by the City
Treasurer concerning the propertys tax assessment and Florentino, thought then that it
should be the respondent who should pay the taxes; and that the affidavit cannot be
accepted for being hearsay.

Aggrieved by such decision, respondent appealed to the CA. In a Decision dated March
31, 2000, the CA reversed the trial court and declared respondent as the sole owner of
the subject house and ordered petitioner to surrender possession of the ground floor
thereof to respondent immediately. It also ordered petitioner to pay respondent a
monthly rental of P2,000.00 for use or occupancy thereof from April 1988 until the
former actually vacates the same and the sum of P50,000.00 as attorneys fees and
cost of suit.
The CA found as meritorious respondents contention that since petitioner failed to
formally offer in evidence any documentary evidence, there is nothing to refute the
evidence offered by respondent. It ruled that the trial courts statement that "defendants
occupancy of the house is due to a special power of attorney executed by his parents
most specially the deceased Florentino Parel who is in fact a co-owner of said building"
is wanting of any concrete evidence on record; that said power of attorney was never
offered, hence, could not be referred to as petitioners evidence to support his claim;
that except for the bare testimonies of Candelario Regua, the carpenter-foreman, that it
was Florentino who constructed the house and Corazon Garcia, the former barangay
captain, who testified that the lot was allocated to petitioners father, there was no
supporting document which would sufficiently establish factual bases for the trial courts
conclusion; and that the rule on offer of evidence is mandatory.
The CA found the affidavit dated September 24, 1973 of Florentino, petitioners father,
stating that he is not the owner of the subject house but respondent, as conclusive proof
of respondents sole ownership of the subject house as it is a declaration made by
Florentino against his interest. It also found the tax declarations and official receipts
representing payments of real estate taxes of the questioned property covering the
period 1974 to 1992 sufficient to establish respondents case which constitute at least
proof that the holder has a claim of title over the property.
Petitioners motion for reconsideration was denied in a Resolution dated November 28,
2000.1avvphil.net
Hence, the instant petition for review on certiorari with the following Assignment of
Errors:
1. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING
RESPONDENT AS THE OWNER OF THE BUILDING AT 61 FORBES PARK
NATIONAL
RESERVATION,
NEAR
DPS
COMPOUND,
BAGUIO
CITY,
NOTWITHSTANDING THE FINDING OF THE REGIONAL TRIAL COURT OF COOWNERSHIP BETWEEN THE LATE FLORENTINO PAREL AND RESPONDENT;

2. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN ORDERING

PETITIONER TO SURRENDER POSSESSION OF THE GROUND FLOOR OF THE
SUBJECT BUILDING TO RESPONDENT;
3. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN ORDERING
PETITIONER TO PAY RESPONDENT P2,000.00/MONTH FOR USE OR OCCUPANCY
OF THE SUBJECT PREMISES FROM APRIL 1988 UNTIL PETITIONER ACTUALLY
VACATES THE SAME;
4. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN ORDERING
PETITIONER TO PAY TO RESPONDENT P50,000.00 ATTORNEYS FEES AND
COSTS OF SUIT;
5. THE HONORABLE COURT OF APPEALS ERRED IN DENYING PETITIONERS
MOTION FOR RECONSIDERATION. 5
Petitioner concedes that while his former counsel failed to make a formal offer of his
documentary evidence before the trial court and that the court shall consider no
evidence which has not been formally offered, he maintains that the said rule is not
absolute, citing the case of Bravo, Jr. v. Borja; 6 that his documentary evidence which
were not formally offered in evidence were marked during the presentation of the
testimony of petitioners witnesses and were part of their testimonies; that these
evidence were part of the memorandum filed by him before the trial court on July 12,
1993.
Petitioner insists that even in the absence of the documentary evidence, his testimony
as well as that of his witnesses substantiated his claim of co-ownership of the subject
house between his late father and respondent as found by the trial court.
Petitioner argues that the CA erred in finding the affidavit of petitioners father declaring
respondent as owner of the subject house as conclusive proof that respondent is the
true and only owner of the house since the affidavit should be read in its entirety to
determine the purpose for which it was executed.
Petitioner further contends that since he had established his fathers co-ownership of
the subject house, respondent has no legal right to eject him from the property; that he
could not be compelled to pay rentals for residing in the ground floor of the subject
house; that respondent should bear his own expenses and be adjudged liable for
damages which petitioner sustained for being constrained to litigate.
The principal issue for resolution is whether petitioner was able to prove by
preponderance of evidence that his father was a co-owner of the subject two-storey
residential house.

The issue raised by petitioner is mainly factual in nature. In general, only questions of
law are appealable to this Court under Rule 45. However, considering that the findings
of the RTC and CA are contradictory, the review of the case is in order.7
We agree with the CA that respondent had shown sufficient evidence to support his
complaint for recovery of possession of the ground floor of the subject house as the
exclusive owner thereof. Respondent presented the affidavit dated September 24, 1973
executed by Florentino and sworn to before the Assistant City Assessor of Baguio City,
G.F. Lagasca, which reads:
I, FLORENTINO PAREL, 42 years of age, employee, and residing at Forbes Park,
Reservation No. 1, after having been sworn to according to law depose and say:
That he is the occupant of a residential building located at Forbes Park, Reservation No.
1, Baguio City which is the subject of an advicement addressed to him emanating from
the Office of the City Assessor, Baguio City, for assessment and declaration for taxation
purposes;
That I am not the owner of the building in question;
That the building in question is owned by Mr. Simeon B. Prudencio who is presently
residing at 55 Hyacinth, Roxas District, Quezon City.
Further, affiant say not.8 (Underscoring supplied)
Section 38 of Rule 130 of the Rules of Court provides:
SEC. 38. Declaration against interest. The declaration made by a person deceased,
or unable to testify, against the interest of the declarant, if the fact asserted in the
declaration was at the time it was made so far contrary to the declarant's own interest,
that a reasonable man in his position would not have made the declaration unless he
believed it to be true, may be received in evidence against himself or his successors-ininterest and against third persons.
The theory under which declarations against interest are received in evidence
notwithstanding they are hearsay is that the necessity of the occasion renders the
reception of such evidence advisable and, further that the reliability of such declaration
asserts facts which are against his own pecuniary or moral interest. 9
The affiant, Florentino, who died in 1989 was petitioners father and had adequate
knowledge with respect to the subject covered by his statement. In said affidavit,
Florentino categorically declared that while he is the occupant of the residential building,
he is not the owner of the same as it is owned by respondent who is residing in Quezon
City. It is safe to presume that he would not have made such declaration unless he

believed it to be true, as it is prejudicial to himself as well as to his childrens interests as

his heirs.10 A declaration against interest is the best evidence which affords the greatest
certainty of the facts in dispute.11 Notably, during Florentinos lifetime, from 1973, the
year he executed said affidavit until 1989, the year of his death, there is no showing that
he had revoked such affidavit even when a criminal complaint for trespass to dwelling
had been filed by respondent against him (Florentino) and petitioner in 1988 regarding
the subject house which the trial court dismissed due to the absence of evidence
showing that petitioner entered the house against the latters will and held that the
remedy of respondent was to file an action for ejectment; 12 and even when a complaint
for unlawful detainer was filed against petitioner and his wife also in 1988 which was
subsequently dismissed on the ground that respondents action should be an accion
publiciana which is beyond the jurisdiction of the Municipal Trial Court. 13
Moreover, the building plan of the residential house dated January 16, 1973 was in the
name of respondent and his wife. It was established during petitioners crossexamination that the existing structure of the two-storey house was in accordance with
said building plan.14
Notably, respondent has been religiously paying the real estate property taxes on the
house declared under his name since 1974. 15 In fact, petitioner during his crossexamination admitted that there was no occasion that they paid the real estate taxes nor
declared any portion of the house in their name. 16
We agree with the CA that while tax receipts and declarations are not incontrovertible
evidence of ownership, they constitute at least proof that the holder has a claim of title
over the property.17 The house which petitioner claims to be co-owned by his late father
had been consistently declared for taxation purposes in the name of respondent, and
this fact, taken with the other circumstances above-mentioned, inexorably lead to the
conclusion that respondent is the sole owner of the house subject matter of the
litigation.
Respondent having established his claim of exclusive ownership of the subject property,
it was incumbent upon petitioner to contravene respondents claim. The burden of
evidence shifted to petitioner to prove that his father was a co-owner of the subject
house.
We held in Jison v. Court of Appeals, to wit:18
xxx Simply put, he who alleges the affirmative of the issue has the burden of proof, and
upon the plaintiff in a civil case, the burden of proof never parts. However, in the course
of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or
the burden of evidence shifts to defendant to controvert plaintiff's prima facie case,
otherwise, a verdict must be returned in favor of plaintiff. Moreover, in civil cases, the

party having the burden of proof must produce a preponderance of evidence thereon,
with plaintiff having to rely on the strength of his own evidence and not upon the
weakness of the defendants. The concept of "preponderance of evidence" refers to
evidence which is of greater weight, or more convincing, that which is offered in
opposition to it; at bottom, it means probability of truth. 19
In this case, the records show that although petitioners counsel asked that he be
allowed to offer his documentary evidence in writing, he, however, did not file the
same.20 Thus, the CA did not consider the documentary evidence presented by
petitioner. Section 34 of Rule 132 of the Rules of Court provides:
Section 34. Offer of evidence. The court shall consider no evidence which has not
been formally offered. The purpose for which the evidence is offered must be specified.
A formal offer is necessary because it is the duty of a judge to rest his findings of facts
and his judgment only and strictly upon the evidence offered by the parties to the
suit.21 It is a settled rule that the mere fact that a particular document is identified and
marked as an exhibit does not mean that it has thereby already been offered as part of
the evidence of a party.22
Petitioner insists that although his documentary evidence were not formally offered, the
same were marked during the presentation of the testimonial evidence, thus it can
properly be taken cognizance of relying in Bravo, Jr. v. Borja.23
Such reliance is misplaced. In Bravo Jr., we allowed evidence on minority by admitting
the certified true copy of the birth certificate attached to a motion for bail even if it was
not formally offered in evidence. This was due to the fact that the birth certificate was
properly filed in support of a motion for bail to prove petitioners minority which was
never challenged by the prosecution and it already formed part of the records of the
case. The rule referred to in the Bravo case was Section 7 of Rule 133 of the Rules of
Court which provides:
Section 7. Evidence on motion.- When a motion is based on facts not appearing of
record, the court may hear the matter on affidavits or depositions presented by the
respective parties, but the court may direct that the matter be heard wholly or partly on
oral testimony or depositions.
and not Section 34 of Rule 132 of the Rules of Court which is the one applicable to the
present case.
Even assuming arguendo that the documentary evidence of petitioner should be
considered in his favor, the evidence showing that respondent had filed civil and
criminal cases against petitioner which were dismissed as well as the alleged Special
Power of Attorney of petitioners parents whereby they authorized petitioner to stay in

the ground floor of the house, did not establish co-ownership of Florentino and
respondent of the subject house.
The testimonies of petitioner and his witnesses failed to show that the subject house is
co-owned by petitioners father and respondent.
Candelario Regua merely testified that he was hired by petitioners father, Florentino, to
construct the residential building in 1972; 24 that he listed the materials to be used for the
construction which was purchased by Florentino; 25 that he and his men received their
salaries every Saturday and Wednesday from Florentino or his wife, respectively; 26 that
he had not met nor seen respondent during the whole time the construction was ongoing.27 On cross-examination, however, he admitted that he cannot tell where the
money to buy the materials used in the construction came from. 28
Corazon Garcia merely testified that Florentino started building the house when he was
allocated a lot at DPS compound, that she knew Florentino constructed the subject
house29 and never knew respondent. 30 The bare allegation that Florentino was
allocated a lot is not sufficient to overcome Florentinos own affidavit naming respondent
as the owner of the subject house.
Petitioner himself testified that it was his father who saw the progress of the
construction and purchased the materials to be used; 31 and as a young boy he would
follow-up some deliveries upon order of his father 32 and never saw respondent in the
construction site. The fact that not one of the witnesses saw respondent during the
construction of the said house does not establish that petitioners father and respondent
co-owned the house.
We also find that the CA did not err in ordering petitioner to pay respondent being the
sole owner of the subject house a monthly rental of P2,000.00 from April 1988, the date
of the extra-judicial demand, until petitioner actually vacates the subject house.
Although the CA made no ratiocination as to how it arrived at the amount of P2,000.00
for the monthly rental, we find the same to be a reasonable compensation for the use of
the ground floor of the subject house which consists of a living room, a dining room, a
kitchen and three bedrooms. The rental value refers to the value as ascertained by
proof of what the property would rent or by evidence of other facts from which the fair
rental value may be determined. 33
We likewise affirm the CAs award of attorneys fees in favor of respondent. Article 2208
of the Civil Code allows the recovery of attorneys fees in cases when the defendants
act or omission has compelled the plaintiff to litigate with third persons or to incur
expenses to protect his interest 34 and in any other case where the court deems it just
and equitable that attorneys fees and expenses of litigation should be
recovered 35 which are both shown in the instant case.

WHEREFORE, the decision of the Court of Appeals dated March 31, 2000 and its
Resolution dated November 28, 2000 are AFFIRMED.
Costs against petitioner.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. No. L-24989

July 21, 1967

PEDRO
GRAVADOR, petitioner-appellee,
vs.
EUTIQUIO MAMIGO, THE DISTRICT SUPERVISOR OF BAYAWAN-STA. CATALINA
SCHOOL
DISTRICT,
THE DIVISION SUPERINTENDENT OF SCHOOLS OF NEGROS ORIENTAL, THE
DIRECTOR OF PUBLIC SCHOOLS and THE SECRETARY OF EDUCATION, (all
sued in their official and personal capacities),respondents-appellants.
Office of the Solicitor Genero Arturo A. Alafriz, Assistant Solicitor General I. C.
Borromeo
and
Solicitor
F.
J.
Bautista
for
respondents-appellants.
Newton E. Serion for petitioner-appellee.
CASTRO, J.:
The petitioner Pedro Gravador was the principal of the Sta. Catalina Elementary School
in Sta. Catalina, Negros Oriental on August 15, 1964 when he was advised by the then,
Superintendent of Schools Angel Salazar, Jr., through the respondent Supervisor
Teodulfo E. Dayao, of his separation from the service on the ground that he had
reached the compulsory retirement age of 65. The advice reads:
According to your pre-war records as a teacher in the public schools, including
your Employee's Record Card, which has just been found in connection with the
verification of the services of all school officials including elementary school
principals in this division, you were born on November 26, 1897. As of this date,
therefore, you are now 66 years, 8 months, and 22 days old.
In view of the above, you are hereby advised of your separation from the service
effective immediately unless you can show valid proof in the form of a baptismal
or birth certificate that you are below sixty-five years of age today.

A few days later the respondent Eutiquio Mamigo was designated teacher-in-charge of
the said elementary school.
On August 31, 1964 the petitioner wrote the Director of Public Schools, protesting his
forced retirement on the ground that the date of his birth is not November 26, 1897 but
December 11, 1901. Attached to his letter was the affidavit, executed on July 26, 1962,
of Lazaro Bandoquillo and Pedro A. Sienes both of Amlan Negros Oriental, in which
these two affiants declared that they knew that the petitioner "was born on December
11, 1901, in the Municipality of Amlan formerly known as New Ayuquitan Province of
Negros Oriental, Philippines" because, "we were the neighbors of the late spouses,
NEPOMUCENO GRAVADOR and AGUEDA REGOROSA [petitioner's parents], and we
were present when said PEDRO GRAVADOR was born; furthermore,we were also
invited during the baptismal party a few weeks after the birth of said PEDRO
GRAVADOR."
On October 19, 1964 the petitioner wrote to the Division Superintendents of Schools,
reiterating his claim that he had not reached the age of 65 and enclosing some papers
in support thereof.
On April 13, 1965 he filed this suit for quo warranto, mandamus and damages in the
Court of First Instance of Negros Oriental. He asked the court to adjudge him entitled to
the office of principal of the Sta. Catalina Elementary School and to order payment to
him of not only his back salaries but also damages in the total amount of P52,400.
Named as respondents were Eutiquio Mamigo, the District Supervisor, the
Superintendent of Schools, the Director of Public Schools and the Secretary of
Education.
The respondents filed their answer, entered into a stipulation of facts with the petitioner,
and thereafter the case was submitted for decision. The trial court concluded that the
petitioner was born on December 11, 1901 accordingly granted his petition. Immediate
execution was ordered, as a result of which the petitioner was reinstated.
The respondents appealed directly to this Court.
On July 6, 1967 the petitioner asked for the dismissal of the appeal on the ground that
the issues posed thereby had become moot with his retirement from the service on
December 11, 1966 and the payment to him of the corresponding retirement benefits.
We deem it necessary, however, to review the trial court's decision on the merits,
considering that the computation of retirement annuities is based among other things,
on the number of years of service of a retiree, 1 and that payment of benefits already
made to the petitioner on the basis of December 11, 1901 as the date of his birth would
not exempt him from the obligation to make a refund should this Court ultimately rule
that he was actually born November 26, 1897, as the respondents claim.

The controversy on the petitioner's date of birth arose as a result of the conflicting
records of the Division of Schools of Negros Oriental. On the one hand the pre-war
records show his date of birth to be November 26, 1897. These records consist of two
Insular Teachers Cards2 and one Employee's Record Card. 3 It is on the basis of these
records that the Superintendent of Schools determined the petitioner's age to be 66
years, 8 months and 22 days on August 15, 1964.
On the other hand, the post-war records, consisting of an Elementary Teacher's Report
Card,4 an Employee's Record Card,5 and an Employee's Record of Qualifications, 6 state
that the petitioner was born on Dec. 11, 1901. These are the records on which the
petitioner bases his claim.
The problem is aggravated by two uncontroverted facts, namely, that the records of the
church where the petitioner was baptized were destroyed by fire, and that the municipal
civil register contains no record. of the petitioner's birth.
According to the trial court, the post-war records were intended to replace the pre-war
records and therefore the correct date of birth of the petitioner is December 11, 1901.
The court also took into account the verified answer in a cadastral proceeding in the
Court of First Instance of Negros Oriental, dated March 15, 1924, filed by the petitioner's
brother, Romulo Gravador, now deceased. It is therein stated that the petitioner, said to
be one of the co-owners of a piece of land, was at the time 23 years old.
The respondents now contend that the trial court erred in placing full reliance on the
post-war records to establish the date of birth (December 11, 1901) of the petitioner.
They argue that these records were made only because it was thought that the pre-war
records had been lost or destroyed, but as some pre-war records had since been
located, the date contained in the pre-war records should be regarded as controlling
and that the finding of the Superintendent of Schools that the petitioner was born on
November 26, 1897 is an administrative finding that should not be disturbed by the
court.
That the findings of fact of administrative officials are binding on the courts if supported
by substantial evidence, is a settled rule of administrative law, But whether there is
substantial evidence supporting the finding of the Superintendent of Schools is precisely
the issue in this case. The school official based his determination of the petitioner's age
on the pre-war records in the preparation of which the petitioner does not appear to
have taken a part.7 On the other hand, the petitioner post-war records which he
personally accomplished to prove the date of his birth. 8
It is our considered view that the lower court correctly relied upon the post-war records,
for three cogent reasons.

In the first place, as Moran states, although a person can have no personal knowledge
of the date of his birth, he may testify as to his age as he had learned it from his parents
and relatives and his testimony in such case is an assertion of a family
tradition.9 Indeed, even in is application for back pay which he filed with the Department
of Finance, through the Office of the Superintendent of Schools, on October 7, 1948,
the petitioner stated that the date of his birth is December 11, 1901. He repeated the
same assertion in 1956 and again in 1960 when he asked the Government Service
Insurance System and the Civil Service Commission to correct the date of his birth to
December 11, 1901.
In the second place, the import of the declaration of the petitioner's brother, contained in
a verified pleading in a cadastral case way back in 1924, to the effect that the petitioner
was then 23 years old, can not be ignored. Madeante litem motam by a deceased
relative, this statement is at once a declaration regarding pedigree within the intendment
and meaning of section 33 of Rule 130 of the Rules of Court.
Thus, December 11, 1901 is established as the date of birth of the petitioner not only by
evidence of family tradition but also by the declaration ante litem motam of a deceased
relative.1wph1.t
Finally, the patties are agreed that the petitioner has a brother, Constantino, who was
born on June 10, 1898 and who retired on June 10, 1963 with full retirement pay. The
petitioner then could not have been born earlier than Constantino, say in 1897 as prewar records indicate, because Constantino is admittedly older than he. 10
Still it is argued that the petitioner's action was prematurely brought because he had not
availed of all administrative remedies. This argument is without merit. Suit for quo
warranto to recover a public office must be brought within one year. 11 Before filing this
case the petitioner waited for eight months for the school officials to act on his protest.
To require him to tarry a little more would obviously be unfair to him since on April 13,
1965, when this case was filed, he had only four months left within which to bring the
case to court. There was neither manner nor form of assurance that the decision of the
Director of Public Schools would be forthcoming. The rule on exhaustion of
administrative remedies does not apply where insistence on its observance would result
in the nullification of the claim being asserted. 12
Accordingly, the judgment a quo is affirmed. No pronouncement as to costs.
SECOND DIVISION
[G.R. No. 121027. July 31, 1997]
CORAZON DEZOLLER TISON and RENE R. DEZOLLER, petitioners, vs. COURT
OF APPEALS and TEODORA DOMINGO, respondents.

DECISION
REGALADO, J.:
The present appeal by certiorari seeks the reversal of the judgment rendered by
respondent Court of Appeals on June 30, 1995 [1] which affirmed the Order of December
3, 1992 issued by the Regional Trial Court of Quezon City, Branch 98, granting herein
private respondents Demurrer to Plaintiffs Evidence filed in Civil Case No. Q-88-1054
pending therein.
The present appellate review involves an action for reconveyance filed by herein
petitioners against herein private respondent before the Regional Trial Court of Quezon
City, Branch 98, docketed as the aforesaid Civil Case No. Q-88-1054, over a parcel of
land with a house and apartment thereon located at San Francisco del Monte, Quezon
City and which was originally owned by the spouses Martin Guerrero and Teodora
Dezoller Guerrero. It appears that petitioners Corazon Tison and Rene Dezoller are the
niece and nephew, respectively, of the deceased Teodora Dezoller Guerrero who is the
sister of petitioners father, Hermogenes Dezoller. Teodora Dezoller Guerrero died on
March 5, 1983 without any ascendant or descendant, and was survived only by her
husband, Martin Guerrero, and herein petitioners. Petitioners father, Hermogenes, died
on October 3, 1973, hence they seek to inherit from Teodora Dezoller Guerrero by right
of representation.
The records reveal that upon the death of Teodora Dezoller Guerrero, her surviving
spouse, Martin, executed on September 15, 1986 an Affidavit of Extrajudicial
Settlement[2]adjudicating unto himself, allegedly as sole heir, the land in dispute which is
covered by Transfer Certificate of Title No. 66886, as a consequence of which Transfer
Certificate of Title No. 358074 was issued in the name of Martin Guerrero. On January
2, 1988, Martin Guerrero sold the lot to herein private respondent Teodora Domingo and
thereafter, Transfer Certificate of Title No. 374012 was issued in the latters name.
Martin Guerrero died on October 25, 1988. Subsequently, herein petitioners filed an
action for reconveyance on November 2, 1988, claiming that they are entitled to inherit
one-half of the property in question by right of representation.
At the pre-trial conference, the following issues were presented by both parties for
resolution:
(1) whether or not the plaintiffs (herein petitioners) are the nephew and niece of
the late Teodora Dezoller;
(2) whether or not the plaintiffs are entitled to inherit by right of representation
from the estate of the late Teodora Dezoller;

(3) whether or not defendant (herein private respondent) must reconvey the
reserved participation of the plaintiffs to the estate of the late Teodora
Dezoller under Section 4, Rule 74 of the Rules of Court which was duly
annotated on the title of the defendant;
(4) whether or not the plaintiffs are entitled to damages, moral and exemplary,
plus attorneys fees for the willful and malicious refusal of defendant to
reconvey the participation of plaintiffs in the estate of Teodora Dezoller,
despite demands and knowing fully well that plaintiffs are the niece and
nephew of said deceased; and
(5) whether or not the subject property now in litigation can be considered as
conjugal property of the spouses Martin Guerrero and Teodora Dezoller
Guerrero.[3]
During the hearing, petitioner Corazon Dezoller Tison was presented as the lone
witness, with the following documentary evidence offered to prove petitioners filiation to
their father and their aunt, to wit: a family picture; baptismal certificates of Teodora and
Hermogenes Dezoller; certificates of destroyed records of birth of Teodora Dezoller and
Hermogenes Dezoller; death certificates of Hermogenes Dezoller and Teodora Dezoller
Guerrero; certification of destroyed records of live birth of Corazon and Rene Dezoller;
joint affidavits of Pablo Verzosa and Meliton Sitjar attesting to the parents, date and
place of birth of Corazon and Rene Dezoller; joint affidavit of Juliana Cariaga and
Manuela Cariaga attesting to the fact of marriage between Martin Guerrero and Teodora
Dezoller; and the marriage certificate of Martin and Teodora Guerrero. [4] Petitioners
thereafter rested their case and submitted a written offer of these exhibits to which a
Comment[5] was filed by herein private respondent.
Subsequently, private respondent filed a Demurrer to Plaintiffs Evidence on the
ground that petitioners failed to prove their legitimate filiation with the deceased Teodora
Guerrero in accordance with Article 172 of the Family Code. It is further averred that the
testimony of petitioner Corazon Dezoller Tison regarding her relationship with her
alleged father and aunt is self-serving, uncorroborated and incompetent, and that it falls
short of the quantum of proof required under Article 172 of the Family Code to establish
filiation. Also, the certification issued by the Office of the Local Civil Registrar of
Himamaylan, Negros Occidental is merely proof of the alleged destruction of the
records referred to therein, and the joint affidavit executed by Pablo Verzosa and
Meliton Sitjar certifying to the date, place of birth and parentage of herein petitioners is
inadmissible for being hearsay since the affiants were never presented for crossexamination.[6]
On December 3, 1992, the trial court issued an order granting the demurrer to
evidence and dismissing the complaint for reconveyance . [7]

In upholding the dismissal, respondent Court of Appeals declared that the

documentary evidence presented by herein petitioners, such as the baptismal
certificates, family picture, and joint affidavits are all inadmissible and insufficient to
prove and establish filiation. Hence, this appeal.
We find for petitioners.
The bone of contention in private respondents demurrer to evidence is whether or
not herein petitioners failed to meet the quantum of proof required by Article 172 of the
Family Code to establish legitimacy and filiation. There are two points for consideration
before us: first is the issue on petitioners legitimacy, and second is the question
regarding their filiation with Teodora Dezoller Guerrero.
I. It is not debatable that the documentary evidence adduced by petitioners, taken
separately and independently of each other, are not per se sufficient proof of legitimacy
nor even of pedigree. It is important to note, however, that the rulings of both lower
courts in the case are basically premised on the erroneous assumption that, in the first
place, the issue of legitimacy may be validly controverted in an action for reconveyance,
and, in the second place, that herein petitioners have the onus probandi to prove their
legitimacy and, corollarily, their filiation.We disagree on both counts.
It seems that both the court a quo and respondent appellate court have regrettably
overlooked the universally recognized presumption on legitimacy. There is no
presumption of the law more firmly established and founded on sounder morality and
more convincing reason than the presumption that children born in wedlock are
legitimate.[8] And well settled is the rule that the issue of legitimacy cannot be attacked
collaterally.
The rationale for these rules has been explained in this wise:
The presumption of legitimacy in the Family Code x x x actually fixes a civil status for
the child born in wedlock, and that civil status cannot be attacked collaterally. The
legitimacy of the child can be impugned only in a direct action brought for that purpose,
by the proper parties, and within the period limited by law.
The legitimacy of the child cannot be contested by way of defense or as a collateral
issue in another action for a different purpose. The necessity of an independent action
directly impugning the legitimacy is more clearly expressed in the Mexican Code (Article
335) which provides: The contest of the legitimacy of a child by the husband or his heirs
must be made by proper complaint before the competent court; any contest made in
any other way is void. This principle applies under our Family Code. Articles 170 and
171 of the code confirm this view, because they refer to the action to impugn the

legitimacy. This action can be brought only by the husband or his heirs and within the
periods fixed in the present articles.
Upon the expiration of the periods provided in Article 170, the action to impugn the
legitimacy of a child can no longer be brought. The status conferred by the presumption,
therefore, becomes fixed, and can no longer be questioned. The obvious intention of the
law is to prevent the status of a child born in wedlock from being in a state of uncertainty
for a long time. It also aims to force early action to settle any doubt as to the paternity of
such child, so that the evidence material to the matter, which must necessarily be facts
occurring during the period of the conception of the child, may still be easily available.
xxx
Only the husband can contest the legitimacy of a child born to his wife. He is the
one directly confronted with the scandal and ridicule which the infidelity of his wife
produces; and he should decide whether to conceal that infidelity or expose it, in view of
the moral and economic interest involved. It is only in exceptional cases that his heirs
are allowed to contest such legitimacy. Outside of these cases, none - even his heirs can impugn legitimacy; that would amount to an insult to his memory.[9]
The issue, therefore, as to whether petitioners are the legitimate children of
Hermogenes Dezoller cannot be properly controverted in the present action for
reconveyance. This is aside, of course, from the further consideration that private
respondent is not the proper party to impugn the legitimacy of herein petitioners. The
presumption consequently continues to operate in favor of petitioners unless and until it
is rebutted.
Even assuming that the issue is allowed to be resolved in this case, the burden of
proof rests not on herein petitioners who have the benefit of the presumption in their
favor, but on private respondent who is disputing the same. This fact alone should have
been sufficient cause for the trial court to exercise appropriate caution before acting, as
it did, on the demurrer to evidence. It would have delimited the issues for resolution, as
well as the time and effort necessitated thereby.
Ordinarily, when a fact is presumed, it implies that the party in whose favor the
presumption exists does not have to introduce evidence to establish that fact, and in
any litigation where that fact is put in issue, the party denying it must bear the burden of
proof to overthrow the presumption.[10] The presumption of legitimacy is so strong that it
is clear that its effect is to shift the burden of persuasion to the party claiming
illegitimacy.[11] And in order to destroy the presumption, the party against whom it
operates must adduce substantial and credible evidence to the contrary.[12]

Where there is an entire lack of competent evidence to the contrary,[13] and unless or
until it is rebutted, it has been held that a presumption may stand in lieu of evidence and
support a finding or decision.[14] Perforce, a presumption must be followed if it is
uncontroverted. This is based on the theory that a presumption is prima facie proof of
the fact presumed, and unless the fact thus established prima facie by the legal
presumption of its truth is disproved, it must stand as proved. [15]
Indubitably, when private respondent opted not to present countervailing evidence
to overcome the presumption, by merely filing a demurrer to evidence instead, she in
effect impliedly admitted the truth of such fact. Indeed, she overlooked or disregarded
the evidential rule that presumptions like judicial notice and admissions, relieve the
proponent from presenting evidence on the facts he alleged and such facts are thereby
considered as duly proved.
II. The weight and sufficiency of the evidence regarding petitioners relationship with
Teodora Dezoller Guerrero, whose estate is the subject of the present controversy,
requires a more intensive and extensive examination.
Petitioners evidence, as earlier explained, consists mainly of the testimony of
Corazon Dezoller Tison, the baptismal, death and marriage certificates, the various
certifications from the civil registrar, a family picture, and several joint affidavits
executed by third persons all of which she identified and explained in the course and as
part of her testimony.
The primary proof to be considered in ascertaining the relationship between the
parties concerned is the testimony of Corazon Dezoller Tison to the effect that Teodora
Dezoller Guerrero in her lifetime, or sometime in 1946, categorically declared that the
former is Teodoras niece.[16] Such a statement is considered a declaration about
pedigree which is admissible, as an exception to the hearsay rule, under Section 39,
Rule 130 of the Rules of Court, subject to the following conditions: (1) that the declarant
is dead or unable to testify; (2) that the declarant be related to the person whose
pedigree is the subject of inquiry; (3) that such relationship be shown by evidence other
than the declaration; and (4) that the declaration was made ante litem motam, that is,
not only before the commencement of the suit involving the subject matter of the
declaration, but before any controversy has arisen thereon.
There is no dispute with respect to the first, second and fourth elements. What
remains for analysis is the third element, that is, whether or not the other documents
offered in evidence sufficiently corroborate the declaration made by Teodora Dezoller
Guerrero in her lifetime regarding the pedigree of petitioner Corazon Dezoller Tison or, if
at all, it is necessary to present evidence other than such declaration.

American jurisprudence has it that a distinction must be made as to when the

relationship of the declarant may be proved by the very declaration itself, or by other
declarations of said declarant, and when it must be supported by evidence aliunde. The
rule is stated thus:
One situation to be noted is that where one seeks to set up a claim through, but not
from, the declarant and to establish the admissibility of a declaration regarding
claimants pedigree, he may not do so by declarants own statements as to declarants
relationship to the particular family. The reason is that declarants declaration of his own
relationship is of a self-serving nature. Accordingly there must be precedent proof from
other sources that declarant is what he claimed to be, namely, a member of the
particular family; otherwise the requirement to admissibility that declarants relationship
to the common family must appear is not met. But when the party claiming seeks to
establish relationship in order to claim directly from the declarant or the declarants
estate, the situation and the policy of the law applicable are quite different. In such case
the declaration of the decedent, whose estate is in controversy, that he was related to
the one who claims his estate, is admissible without other proof of the fact of
relationship. While the nature of the declaration is then disserving, that is not the real
ground for its admission. Such declarations do not derive their evidential value from that
consideration, although it is a useful, if not an artificial, aid in determining the class to
which the declarations belong. The distinction we have noted is sufficiently apparent; in
the one case the declarations are self-serving, in the other they are competent from
reasons of necessity.[17] (Italics ours.)
The general rule, therefore, is that where the party claiming seeks recovery against
a relative common to both claimant and declarant, but not from the declarant himself or
the declarants estate, the relationship of the declarant to the common relative may not
be proved by the declaration itself. There must be some independent proof of this fact.
[18]
As an exception, the requirement that there be other proof than the declarations of
the declarant as to the relationship, does not apply where it is sought to reach the estate
of the declarant himself and not merely to establish a right through his declarations to
the property of some other member of the family. [19]
We are sufficiently convinced, and so hold, that the present case is one instance
where the general requirement on evidence aliunde may be relaxed. Petitioners are
claiming a right to part of the estate of the declarant herself. Conformably, the
declaration made by Teodora Dezoller Guerrero that petitioner Corazon is her niece, is
admissible and constitutes sufficient proof of such relationship, notwithstanding the fact
that there was no other preliminary evidence thereof, the reason being that such
declaration is rendered competent by virtue of the necessity of receiving such evidence
to avoid a failure of justice.[20] More importantly, there is in the present case an absolute
failure by all and sundry to refute that declaration made by the decedent.

From the foregoing disquisitions, it may thus be safely concluded, on the sole basis
of the decedents declaration and without need for further proof thereof, that petitioners
are the niece and nephew of Teodora Dezoller Guerrero. As held in one case, [21] where
the subject of the declaration is the declarants own relationship to another person, it
seems absurd to require, as a foundation for the admission of the declaration, proof of
the very fact which the declaration is offered to establish. The preliminary proof would
render the main evidence unnecessary.
Applying the general rule in the present case would nonetheless produce the same
result. For while the documentary evidence submitted by petitioners do not strictly
conform to the rules on their admissibility, we are however of the considered opinion
that the same may be admitted by reason of private respondents failure to interpose any
timely objection thereto at the time they were being offered in evidence. [22] It is
elementary that an objection shall be made at the time when an alleged inadmissible
document is offered in evidence,[23] otherwise, the objection shall be treated as waived,
[24]
since the right to object is merely a privilege which the party may waive. [25]
As explained in Abrenica vs. Gonda, et al.,[26] it has been repeatedly laid down as a
rule of evidence that a protest or objection against the admission of any evidence must
be made at the proper time, otherwise it will be deemed to have been waived. The
proper time is when from the question addressed to the witness, or from the answer
thereto, or from the presentation of the proof, the inadmissibility of the evidence is, or
may be inferred.
Thus, a failure to except to the evidence because it does not conform with the
statute is a waiver of the provisions of the law. That objection to a question put to a
witness must be made at the time the question is asked. An objection to the admission
of evidence on the ground of incompetency, taken after the testimony has been given, is
too late.[27] Thus, for instance, failure to object to parol evidence given on the stand,
where the party is in a position to object, is a waiver of any objections thereto. [28]
The situation is aggravated by the fact that counsel for private respondent
unreservedly cross-examined petitioners, as the lone witness, on the documentary
evidence that were offered. At no time was the issue of the supposed inadmissibility
thereof, or the possible basis for objection thereto, ever raised. Instead, private
respondents counsel elicited answers from the witness on the circumstances and
regularity of her obtention of said documents: The observations later made by private
respondent in her comment to petitioners offer of exhibits, although the grounds therefor
were already apparent at the time these documents were being adduced in evidence
during the testimony of Corazon Dezoller Tison but which objections were not timely
raised therein, may no longer serve to rectify the legal consequences which resulted
therefrom. Hence, even assuming ex gratia argumenti that these documents are
inadmissible for being hearsay, but on account of herein private respondents failure to

object thereto, the same may be admitted and considered as sufficient to prove the
facts therein asserted.[29]
Accordingly, the Certificate of Marriage (Exhibit S) wherein it is indicated that the
parents of Teodora Dezoller are Isabelo Dezoller and Cecilia Calpo, as well as the
Certificates of Baptism of Teodora Dezoller [30] (Exhibit H) and Hermogenes Dezoller
(Exhibit J) which both reflect the names of their parents as Isabelo Dezoller and Cecilia
Calpo, to show that Hermogenes Dezoller is the brother of Teodora Dezoller Guerrero;
and the Death Certificate of Hermogenes Dezoller (Exhibit K) the entries wherein were
made by petitioner Corazon Dezoller Tison as his daughter, together with the Joint
Affidavits of Pablo Verzosa and Meliton Sitjar (Exhibits N and P), to prove that herein
petitioners are the children of Hermogenes Dezoller -- these can be deemed to have
sufficiently established the relationship between the declarant and herein
petitioners. This is in consonance with the rule that a prima facie showing is sufficient
and that only slight proof of the relationship is required. [31] Finally, it may not be amiss to
consider as in the nature of circumstantial evidence the fact that both the declarant and
the claimants, who are the subject of the declaration, bear the surname Dezoller.[32]
III. The following provisions of the Civil Code provide for the manner by which the
estate of the decedent shall be divided in this case, to wit:
Art. 975. When children of one or more brothers or sisters of the deceased survive, they
shall inherit from the latter by representation, if they survive with their uncles or
aunts. But if they alone survive, they shall inherit in equal portions.
Art. 995. In the absence of legitimate descendants and ascendants, and illegitimate
children and their descendants, whether legitimate or illegitimate, the surviving spouse
shall inherit the entire estate, without prejudice to the rights of brothers and sisters,
nephews and nieces, should there be any, under Article 1001.
Art. 1001. Should brothers and sisters or their children survive with the widow or
widower, the latter shall be entitled to one-half of the inheritance and the brothers and
sisters or their children to the other half.
Upon the death of Teodora Dezoller Guerrero, one-half of the subject property was
automatically reserved to the surviving spouse, Martin Guerrero, as his share in the
conjugal partnership. Applying the aforequoted statutory provisions, the remaining half
shall be equally divided between the widower and herein petitioners who are entitled to
jointly inherit in their own right. Hence, Martin Guerrero could only validly alienate his
total undivided three-fourths (3/4) share in the entire property to herein private
respondent. Resultantly, petitioners and private respondent are deemed co-owners of
the property covered by Transfer Certificate of Title No. 374012 in the proportion of an
undivided one-fourth (1/4) and three-fourths (3/4) share thereof, respectively.

All told, on the basis of the foregoing considerations, the demurrer to plaintiffs
evidence should have been, as it is hereby, denied. Nonetheless, private respondent
may no longer be allowed to present evidence by reason of the mandate under Section
1 of revised Rule 3 of the Rules of Court which provides that if the motion is granted but
on appeal the order of dismissal is reversed he shall be deemed to have waived the
right to present evidence.[33]
WHEREFORE, the questioned judgment of respondent Court of Appeals is hereby
REVERSED and SET ASIDE, and herein petitioners and private respondent are
declared co-owners of the subject property with an undivided one-fourth (1/4) and threefourths (3/4) share therein, respectively.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION
G.R. No. 86302 September 24, 1991
CASIMIRO
MENDOZA, petitioner,
vs.
HON. COURT OF APPEALS and TEOPISTA TORING TUACAO, respondents.
Bienvenido R. Saniel, Jr. for petitioner.
Domingo Antigua & Associates for private respondent.

CRUZ, J.:p
The private respondent claimed she was the illegitimate daughter of Casimiro Mendoza,
but the latter denied her claim. He denied it to his dying day. The trial court believed him
and dismissed her complaint for compulsory recognition. The appellate court did not
and reversed the judgment of the court below. Now the issue is before us on certiorari.
The complaint was filed on August 21, 1981, in the Regional Trial Court in Cebu City.
Teopista Toring Tufiacao, the herein private respondent, alleged that she was born on
August 20, 1930, to Brigida Toring, who was then single, and defendant Casimiro
Mendoza, married at that time to Emiliana Barrientos. She averred that Mendoza

recognized her as an illegitimate child by treating her as such and according her the
rights and privileges of a recognized illegitimate child.
Casimiro Mendoza, then already 91 years old, specifically denied the plaintiffs
allegations and set up a counterclaim for damages and attorney's fees.
Amplifying on her complaint, Teopista testified that it was her mother who told her that
her father was Casimiro. She called him Papa Miroy. She lived with her mother because
Casimiro was married but she used to visit him at his house. When she married Valentin
Tufiacao, Casimiro bought a passenger truck and engaged him to drive it so he could
have a livelihood. Casimiro later sold the truck but gave the proceeds of the sale to her
and her husband. In 1977, Casimiro allowed her son, Lolito Tufiacao, to build a house
on his lot and later he gave her money to buy her own lot from her brother, Vicente
Toring. On February 14, 1977, Casimiro opened a joint savings account with her as a
co-depositor at the Mandaue City branch of the Philippine Commercial and Industrial
Bank. Two years later, Margarita Bate, Casimiro's adopted daughter, took the passbook
from her, but Casimiro ordered it returned to her after admonishing Margarita. 1
Lolito Tufiacao corroborated his mother and said he considered Casimiro his
grandfather because Teopista said so. He would kiss his hand whenever they saw each
other and Casimiro would give him money. Casimiro used to invite him to his house and
give him jackfruits. when his grandfather learned that he was living on a rented lot, the
old man allowed him to build a house on the former's land. 2
Two other witnesses testified for Teopista, namely, Gaudencio Mendoza and Isaac
Mendoza, both relatives of Casimiro.
Gaudencio said he was a cousin of Casimiro and knew Brigida Toring because she
used to work with him in a saltbed in Opao. Casimiro himself told him she was his
sweetheart. Later, Gaudencio acted as a go-between for their liaison, which eventually
resulted in Brigida becoming pregnant in 1930 and giving birth to Teopista. Casimiro
handed him P20.00 to be given to Brigida at Teopista's baptism. Casimiro also gave him
P5.00 every so often to be delivered to Brigida. 3
Isaac testified that his uncle Casimiro was the father of Teopista because his father
Hipolito, Casimiro's brother, and his grandmother, Brigida Mendoza, so informed him.
He worked on Casimiro's boat and whenever Casimiro paid him his salary, he would
also give him various amounts from P2.00 to P10.00 to be delivered to Teopista. Isaac
also declared that Casimiro intended to give certain properties to Teopista. 4
Casimiro himself did not testify because of his advanced age, but Vicente Toring took
the stand to resist Teopista's claim.

Vicente, who professed to be Casimiro's only illegitimate child by Brigida Toring,

declared that Teopista's father was not Casimiro but a carpenter named Ondoy, who
later abandoned her. Vicente said that it was he who sold a lot to Teopista, and for a low
price because she was his half sister. It was also he who permitted Lolito to build a
house on Casimiro's lot. This witness stressed that when Casimiro was hospitalized,
Teopista never once visited her alleged father. 5
The last statement was shared by the other defense witness, Julieta Ouano, Casimiro's
niece, who also affirmed that Vicente Toring used to work as a cook in Casimiro's boat.
She flatly declared she had never met Teopista but she knew her husband, who was a
mechanic. 6
The rules on compulsory recognition are embodied in Article 283 of the Civil Code,
which has been held to be applicable not only to natural children but also to spurious
children. 7 The said article provides:
Art. 283. In any of the following cases, the father is obliged to recognize
the child as his natural child:
(1) In cases of rape, abduction or seduction, when the period of the
offense coincides more or less with that of the conception;
(2) When the child is in continuous possession of status of a child of the
alleged father by the direct acts of the latter or of his family;
(3) when the child was conceived during the time when the mother
cohabited with the supposed father.
(4) When the child has in his favor any evidence or proof that the
defendant is his father.
This article has been substantially reproduced in the Family Code as follows:
Art. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child;
or
(2) Any other means allowed by the Rules of Court and special laws.
Art. 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same evidence as legitimate children.
In his remarkably well-written decision, Judge Leoncio P. Abarquez rejected the plaintiff'
s claim that she was in continuous possession of the status of a child of the alleged
father by the direct acts of the latter or of his family. His Honor declared:
In this particular case the established evidence is that plaintiff continuously
lived with her mother, together with her sister Paulina. Neither the plaintiff
nor her husband had come to live with the defendant. At most, only their
son, Lolito Tufiacao was allowed to construct a small house in the land of
the defendant, either by the defendant himself, as claimed by the plaintiff,
or by Vicente Toring, as claimed by the witnesses of the defendant. The
defendant never spent for the support and education of the plaintiff. He did
not allow the plaintiff to carry his surname. The instances when the
defendant gave money to the plaintiff were, more or less, off-and-on or
rather isolatedly periodic. They were made at considerable intervals and
were not given directly to the plaintiff but through a third person. Thus,
while it may be conceded that: a) the defendant's parents, as well as the
plaintiff himself told Gaudencio Mendoza and Isaac Mendoza that Teopista
is the daughter of the defendant; b) that Teopista calls the defendant
as "Papa Miroy"; c) that Teopista would kiss defendant's hand when she
met him; d) that the defendant gave to her and her husband the income of
the passenger truck as well as the proceeds of the sale thereof, all these
acts, taken altogether, are not sufficient to show that the plaintiff had
possessed continuously the status of a recognized illegitimate child.
On appeal, however, the respondent courts 8 disagreed and arrived at its own
conclusion as follows:
Contrary to the conclusion of the court a quo, We find that appellant has
sufficiently proven her continuous possession of such status. Although the
court a quo did not pass on the credibility of the various witnesses
presented, We consider the witnesses for the plaintiff as credible and
unbiased. No proof was shown to render them otherwise. There is no
showing that Isaac and Gaudencio testified falsely. They were
disinterested parties with no axe to grind against the appellee or the

people actively acting in his behalf. In fact even the court a quo conceded
to the truthfulness of some of their testimonies.
By contrast, it continued, Vicente Toring was an interested party who was claiming to be
the sole recognized natural child of Casimiro and stood to lose much inheritance if
Teopista's claim were recognized. He had earlier filed theft charges against his own
sister and libel charges against her husband. As for Julieta Ouano, the respondent court
found it difficult to believe that she had never met Teopista although both of them have
been living in the same barangay since birth.
The decision of the Court of Appeals was promulgated on August 11, 1988. A motion for
reconsideration was filed, and it was only from the opposition thereto of the private
respondent that Casimiro's counsel learned that his client had died on May 1986. He
immediately informed the respondent court build the motion for reconsideration was
denied without any substitution of parties having been effected. The said counsel, now
acting for Vicente Toring, then asked this Court to substitute the latter for the deceased
Casimiro Mendoza in the present petition.
The applicable provisions of the Rules of Court are Sections 16 and 17 of Rule 3,
reading as follows:
Sec. 16. Duty of attorney upon death, incapacity or incompetency of party.
Whenever a party to a pending case dies, becomes incapacitated or
incompetent, it shall be the duty of his attorney to inform the court
promptly of such death, incapacity or incompetency, and to give the name
and residence of his executor, guardian or other legal representative.
Sec. 17. Death of party. After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal
representative of the deceased to appear and to be substituted for the
deceased, within a period of thirty (30) days, or within such time as may
be granted. If the legal representative fails to appear within said time the
court may order the opposing party to procure the appointment of a legal
representative of the deceased within a time to be specified by the court,
and the representative shall immediately appear for and on behalf of the
interest of the deceased. The court charges involved in procuring such
appointment, if defrayed by the opposing party, may be recovered as
costs. The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator and the court may appoint guardian ad litem for the minor
heirs.
In the early case of Masecampo vs. Masecampo, 9 it was settled that:

The subsequent death of the father is not a bar to the action commenced
during Ms lifetime by one who pretended to be his natural son. It may
survive against the executor, administrator, or any other legal
representative of the testate or intestate succession.
Pursuant to the above rules and jurisprudence, we hereby allow the substitution of
Casimiro Mendoza pro haec vice and nunc pro tunc by Vicente Toring, who appears to
be the former's illegitimate son. This disposes of the private respondent's contention
that the lawyer-client relationship terminated with Casimiro's death and that Vicente has
no personality now to substitute him.
Now to the merits.
We note that both the trial court and the respondent court, in arriving at their respective
conclusions, focused on the question of whether or not Teopista was in continuous
possession of her claimed status of an illegitimate child of Casimiro Mendoza. This was
understandable because Teopista herself had apparently based her claim on this
particular ground as proof of filiation allowed under Article 283 of the Civil Code.
To establish "the open and continuous possession of the status of an illegitimate child,"
it is necessary to comply with certain jurisprudential requirements. "Continuous" does
not mean that the concession of status shall continue forever but only that it shall not be
of an intermittent character while it continues. 10 The possession of such status means
that the father has treated the child as his own, directly and not through others,
spontaneously and without concealment though without publicity (since the relation is
illegitimate). 11 There must be a showing of the permanent intention of the supposed
father to consider the child as his own, by continuous and clear manifestation of
paternal affection and care. 12
With these guidelines in mind, we agree with the trial court that Teopista has not been in
continuous possession of the status of a recognized illegitimate child of Casimiro
Mendoza, under both Article 283 of the Civil Code and Article 172 of the Family Code.
The plaintiff lived with her mother and not with the defendant although they were both
residents of Omapad, Mandaue City. It is true, as the respondent court observed, that
this could have been because defendant had a legitimate wife. However, it is not
unusual for a father to take his illegitimate child into his house to live with him and his
legitimate wife, especially if the couple is childless, as in this case. In fact, Vicente
Toring, who also claimed to be an illegitimate child of Casimiro, lived with the latter and
his wife, apparently without objection from the latter. We also note that Teopista did not
use the surname of Casimiro although this is, of course, not decisive of one's status. No
less significantly, the regularity of defendant's act of giving money to the plaintiff through
Gaudencio Mendoza and Isaac Mendoza has not been sufficiently established. The trial

court correctly concluded that such instances were "off-and-on," not continuous and
intermittent. Indeed, the plaintiff s testimony on this point is tenuous as in one breath
she said that her mother solely spent for her education and in another that Casimiro
helped in supporting her. 13
But although Teopista has failed to show that she was in open and continuous
possession of the status of an illegitimate child of Casimiro, we find that she has
nevertheless established that status by another method.
What both the trial court and the respondent court did not take into account is that an
illegitimate child is allowed to establish his claimed filiation by "any other means allowed
by the Rules of Court and special laws," according to the Civil Code, or "by evidence or
proof in his favor that the defendant is her father," according to the Family Code. Such
evidence may consist of his baptismal certificate, a judicial admission, a family Bible in
which his name has been entered, common reputation respecting his pedigree,
admission by silence, the testimonies of witnesses, and other kinds of proof admissible
under Rule 130 of the Rules of Court. 14
The trial court conceded that "the defendant's parents, as well as the plaintiff himself,
told Gaudencio Mendoza and Isaac Mendoza, that Teopista was the daughter of the
defendant." It should have probed this matter further in light of Rule 130, Section 39, of
the Rules of Court, providing as follows:
Sec. 39. Act or declarations about pedigree. The act or declaration
of a person deceased, or unable to testify, in respect to the pedigree of
another person related to him by birth or marriage, may be received in
evidence where it occurred before the controversy, and the relationship
between the two persons is shown by evidence other than such act or
declaration. The word "pedigree" includes relationship, family genealogy,
birth, marriage, death, the dates when and the places where these facts
occurred, and the names of the relatives. It embraces also facts of family
history intimately connected with pedigree.
The statement of the trial court regarding Teopista's parentage is not entirely accurate.
To set the record straight, we will stress that it was only Isaac Mendoza who testified on
this question of pedigree, and he did not cite Casimiro's father. His testimony was that
he was informed by his father Hipolito, who was Casimiro's brother, and Brigida
Mendoza, Casimiro's own mother, that Teopista was Casimiro's illegitimate daughter. 15
Such acts or declarations may be received in evidence as an exception to the hearsay
rule because "it is the best the nature of the case admits and because greater evils are
apprehended from the rejection of such proof than from its admission. 16 Nevertheless,
precisely because of its nature as hearsay evidence, there are certain safeguards

against its abuse. Commenting on this provision, Francisco enumerates the following
requisites that have to be complied with before the act or declaration regarding pedigree
may be admitted in evidence:
1. The declarant is dead or unable to testify.
2. The pedigree must be in issue.
3. The declarant must be a relative of the person whose pedigree is in
issue.
4. The declaration must be made before the controversy arose.
5. The relationship between the declarant and the person whose pedigree
is in question must be shown by evidence other than such declaration. 17
All the above requisites are present in the case at bar. The persons who made the
declarations about the pedigree of Teopista, namely, the mother of Casimiro, Brigida
Mendoza, and his brother, Hipolito, were both dead at the time of Isaac's testimony. The
declarations referred to the filiation of Teopista and the paternity of Casimiro, which
were the very issues involved in the complaint for compulsory recognition. The
declarations were made before the complaint was filed by Teopista or before the
controversy arose between her and Casimiro. Finally, the relationship between the
declarants and Casimiro has been established by evidence other than such declaration,
consisting of the extrajudicial partition of the estate of Florencio Mendoza, in which
Casimiro was mentioned as one of his heirs. 18
The said declarations have not been refuted. Casimiro could have done this by
deposition if he was too old and weak to testify at the trial of the case.
If we consider the other circumstances narrated under oath by the private respondent
and her witnesses, such as the financial doles made by Casimiro to Brigida Toring, the
hiring of Teopista's husband to drive the passenger truck of Casimiro, who later sold the
vehicle and gave the proceeds of the sale to Teopista and her husband, the permission
he gave Lolito Tufiacao to build a house on his land after he found that the latter was
living on a rented lot, and, no less remarkably, the joint savings account Casimiro
opened with Teopista, we can reasonably conclude that Teopista was the illegitimate
daughter of Casimiro Mendoza.
We hold that by virtue of the above-discussed declarations, and in view of the other
circumstances of this case, 'reopista Toring Tufiacao has proved that she is the
illegitimate daughter of Casimiro Mendoza and is entitled to be recognized as such. In
so holding, we give effect to the policy of the Civil Code and the Family Code to
liberalize the rule on the investigation of "the paternity of illegitimate children, without

prejudice to the right of the alleged parent to resist the claimed status with his own
defenses, including evidence now obtainable through the facilities of modern medicine
and technology
WHEREFORE, the petition is DENIED. Judgment is hereby rendered DECLARING
Teopista Toring Tuacao to be the illegitimate child of the late Casimiro Mendoza and
entitled to all the rights appurtenant to such status. Costs against the petitioner.
SO ORDERED.
THIRD DIVISION
[G.R. No. 146737. December 10, 2001]
In the matter of the intestate estate of the late JUAN "JHONNY" LOCSIN, SR.,
LUCY A. SOLINAP (Daughter of the late Maria Locsin Araneta), the
successors of the late LOURDES C. LOCSIN, MANUEL C. LOCSIN, ESTER
LOCSIN JARANTILLA and the intestate estate of the late JOSE C. LOCSIN,
JR., petitioners, vs. JUAN C. LOCSIN, JR., respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
A Certificate of Live Birth duly recorded in the Local Civil Registry, a copy of which is
transmitted to the Civil Registry General pursuant to the Civil Registry Law, is prima
facie evidence of the facts therein stated. However, if there are material discrepancies
between them, the one entered in the Civil Registry General prevails.
This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, seeking the reversal of the September 13, 2000 Decision of
the Court of Appeals in CA-G.R. CV No. 57708 which affirmed in toto the September 13,
1996 order of the Regional Trial Court, Branch 30, of Iloilo City in Special Proceeding
No. 4742. The September 13 order of the trial court appointed Juan E. Locsin, Jr.,
respondent, as the sole administrator of the Intestate Estate of the late Juan "Jhonny"
Locsin, Sr.
Records show that on November 11, 1991, or eleven (11) months after Juan
"Jhonny" Locsin, Sr.[1] died intestate on December 11, 1990, respondent Juan E. Locsin,
Jr. filed with the Regional Trial Court of Iloilo City, Branch 30, a "Petition for Letters of
Administration" (docketed as Special Proceeding No. 4742) praying that he be
appointed Administrator of the Intestate Estate of the deceased. He alleged, among
others, (a) that he is an acknowledged natural child of the late Juan C. Locsin; (b) that
during his lifetime, the deceased owned personal properties which include

undetermined savings, current and time deposits with various banks, and 1/6 portion of
the undivided mass of real properties owned by him and his siblings, namely: Jose
Locsin, Jr., Manuel Locsin, Maria Locsin Yulo, Lourdes Locsin and Ester Locsin; and (c)
that he is the only surviving legal heir of the decedent.
On November 13, 1991, the trial court issued an order setting the petition for
hearing on January 13, 1992, which order was duly published, [2] thereby giving notice to
all persons who may have opposition to the said petition.
Before the scheduled hearing, or on January 10, 1992, the heirs of Jose Locsin, Jr.,
the heirs of Maria Locsin, Manuel Locsin and Ester Jarantilla, claiming to be the lawful
heirs of the deceased, filed an opposition to respondents petition for letters of
administration. They averred that respondent is not a child or an acknowledged natural
child of the late Juan C. Locsin, who during his lifetime, never affixed "Sr." in his name .
On January 5, 1993, another opposition to the petition was filed by Lucy Salinop
(sole heir of the late Maria Locsin Vda. De Araneta, sister of the deceased), Manuel
Locsin and the successors of the late Lourdes C. Locsin alleging that respondent's
claim as a natural child is barred by prescription or the statute of limitations.
The Intestate Estate of the late Jose Locsin, Jr. (brother of the deceased) also
entered its appearance in the estate proceedings, joining the earlier oppositors. This
was followed by an appearance and opposition dated January 26, 1993 of Ester Locsin
Jarantilla (another sister of Juan C. Locsin), likewise stating that there is no filial
relationship between herein respondent and the deceased.
Thereupon, the trial court conducted hearings.
To support his claim that he is an acknowledged natural child of the deceased and,
therefore, entitled to be appointed administrator of the intestate estate, respondent
submitted a machine copy (marked as Exhibit "D") [3] of his Certificate of Live Birth No.
477 found in the bound volume of birth records in the Office of the Local Civil Registrar
of Iloilo City. Exhibit "D" contains the information that respondent's father is Juan C.
Locsin, Sr. and that he was the informant of the facts stated therein, as evidenced by his
signatures (Exhibit "D-2" and "D-3"). To prove the existence and authenticity of
Certificate of Live Birth No. 477 from which Exhibit "D" was machine copied, respondent
presented Rosita J. Vencer, the Local Civil Registrar of Iloilo City. She produced and
identified in court the bound volume of 1957 records of birth where the alleged original
of Certificate of Live Birth No. 477 is included.
Respondent also offered in evidence a photograph (Exhibit "C") [4] showing him and
his mother, Amparo Escamilla, in front of a coffin bearing Juan C. Locsin's dead

body. The photograph, respondent claims, shows that he and his mother have been
recognized as family members of the deceased.
In their oppositions, petitioners claimed that Certificate of Live Birth No. 477 (Exhibit
"D") is spurious. They submitted a certified true copy of Certificate of Live Birth No. 477
found in the Civil Registrar General, Metro Manila, marked as Exhibit "8", [5] indicating
that the birth of respondent was reported by his mother, Amparo Escamilla, and that the
same does not contain the signature of the late Juan C. Locsin. They observed as
anomalous the fact that while respondent was born on October 22, 1956 and his birth
was recorded on January 30, 1957, however, his Certificate of Live Birth No. 447
(Exhibit "D") was recorded on a December 1, 1958 revised form. Upon the other hand,
Exhibit "8" appears on a July, 1956 form, already used before respondent's birth. This
scenario clearly suggests that Exhibit "D" was falsified. Petitioners presented as
witness, Col. Pedro L. Elvas, a handwriting expert. He testified that the signatures of
Juan C. Locsin and Emilio G. Tomesa (then Civil Registrar of Iloilo City) appearing in
Certificate of Live Birth No. 477 (Exhibit "D") are forgeries. He thus concluded that the
said Certificate is a spurious document surreptitiously inserted into the bound volume of
birth records of the Local Civil Registrar of Iloilo City.
After hearing, th trial court, finding that Certificate of Live Birth No. 477 (Exhibit "D")
and the photograph (Exhibit "C") are sufficient proofs of respondent's illegitimate filiation
with the deceased, issued on September 13, 1996 an order, the dispositive portion of
which reads:
WHEREFORE, premises considered, this PETITION is hereby GRANTED and the
petitioner Juan E. Locsin, Jr. is hereby appointed Administrator of the Intestate Estate of
the late Juan Johnny Locsin, Sr.
"Let Letters of Administration be issued in his favor, upon his filing of a bond in the sum
of FIFTY THOUSAND PESOS (P50,000.00) to be approved by this Court.
"SO ORDERED.[6]
On appeal, the Court of Appeals rendered the challenged Decision affirming in
toto the order of the trial court dated September 13, 1996. Petitioners moved for a
reconsideration, while respondent filed a motion for execution pending appeal. Both
motions were, however, denied by the Appellate Court in its Resolution dated January
10, 2001.
Hence, the instant petition for review on certiorari by petitioners.
The focal issue for our resolution is which of the two documents - Certificate of Live
Birth No. 477 (Exhibit "D") and Certificate of Live Birth No. 477 (Exhibit "8") is genuine.

The rule that factual findings of the trial court, adopted and confirmed by the Court
of Appeals, are final and conclusive and may not be reviewed on appeal [7] does not
apply when there appears in the record of the case some facts or circumstances of
weight and influence which have been overlooked, or the significance of which have
been misinterpreted, that if considered, would affect the result of the case. [8] Here, the
trial court failed to appreciate facts and circumstances that would have altered its
conclusion.
Section 6, Rule 78 of the Revised Rules of Court lays down the persons preferred
who are entitled to the issuance of letters of administration, thus:
Section 6. When and to whom letters of administration granted. If no executor is
named in the will, or the executor or executors are incompetent, refuse the trust, or fail
to give bond, or a person dies intestate, administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the
discretion of the court, or to such person as such surviving husband or wife, or next of
kin, requests to have appointed, if competent and willing to serve;
(b) If such surviving husband or wife, as the case may be, or next of kin, or the person
selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin,
neglects for thirty (30) days after the death of a person to apply for administration or to
request that administration be granted to some other person, it may be granted to one
or more of the principal creditors, if competent and willing to serve;
(c) If there is no such creditor competent and willing to serve, it may be granted to such
other person as the court may select. (Emphasis ours)
Upon the other hand, Section 2 of Rule 79 provides that a petition for letters of
administration must be filed by an interested person, thus:
Sec.2 Contents of petition for letters of administration. A petition for letters of
administration must be filed by an interested person and must show, so far as known
to the petitioner:
(a) The jurisdictional facts; x x x" (Emphasis ours)
An "interested party", in estate proceedings, is one who would be benefited in the
estate, such as an heir, or one who has a claim against the estate, such as a creditor.
[9]
Also, in estate proceedings, the phrase "next of kin" refers to those whose relationship
with the decedent is such that they are entitled to share in the estate as distributees.
[10]
In Gabriel v. Court of Appeals,[11] this Court held that in the appointment of the
administrator of the estate of a deceased person, the principal consideration reckoned
with is the interest in said estate of the one to be appointed administrator.

Here, undisputed is the fact that the deceased, Juan C. Locsin, was not survived by
a spouse. In his petition for issuance of letters of administration, respondent alleged that
he is an acknowledged natural son of the deceased, implying that he is an interested
person in the estate and is considered as next of kin. But has respondent established
that he is an acknowledged natural son of the deceased? On this point, this Court,
through Mr. Justice Jose C. Vitug, held:
"The filiation of illegitimate children, like legitimate children, is established by (1) the
record of birth appearing in the civil register or a final judgement; or (2) an admission of
legitimate filiation in a public document or a private handwritten instrument and signed
by the parent concerned. In the absence thereof, filiation shall be proved by (1) the
open and continuous possession of the status of a legitimate child; or (2) any other
means allowed by the Rules of Court and special laws. The due recognition of an
illegitimate child in a record of birth, a will, a statement before a court of record, or in
any authentic writing is, in itself, a consummated act of acknowledgement of the child,
and no further court action is required. In fact, any authentic writing is treated not just a
ground for compulsory recognition; it is in itself a voluntary recognition that does not
require a separate action for judicial approval. Where, instead, a claim for recognition is
predicated on other evidence merely tending to prove paternity, i.e., outside of a record
of birth, a will, a statement before a court of record or an authentic writing, judicial action
within the applicable statute of limitations is essential in order to establish the child's
acknowledgment."[12](Emphasis ours)
Here, respondent, in order to establish his filiation with the deceased, presented to
the trial court his Certificate of Live Birth No. 477 (Exhibit "D") and a photograph (Exhibit
"C") taken during the burial of the deceased.
Regarding the genuineness and probative value of Exhibit "D", the trial court made
the following findings, affirmed by the Appellate Court:
"It was duly established in Court that the Certificate of Live Birth No. 477 in the name of
Juan E. Locsin, Jr., the original having been testified to by Rosita Vencer, exists in the
files of the Local Civil Registrar of Iloilo. Petitioner since birth enjoyed the open and
continuous status of an acknowledged natural child of Juan C. Locsin, Sr., he together
with his mother was summoned to attend to the burial as evidenced by a picture of
relatives facing the coffin of the deceased with petitioner and his mother in the picture. x
x x. It was duly proven at the trial that the standard signatures presented by oppositors
were not in public document and may also be called questioned document whereas in
the certificate of live birth No. 477, the signature of Juan C. Locsin, Sr. was the original
or primary evidence. The anomalous and suspicious characteristic of the bound volume
where the certificate of live birth as alleged by oppositors was found was testified to and
explained by Rosita Vencer of the Office of the Local Civil Registrar that they run out of
forms in 1957 and requisitioned forms. However, the forms sent to them was the 1958

revised form and that she said their office usually paste the pages of the bound volume
if destroyed. All the doubts regarding the authenticity and genuineness of the signatures
of Juan C. Locsin, Sr. and Emilio Tomesa, and the suspicious circumstances of the
bound volume were erased due to the explanation of Rosita Vencer."
This Court cannot subscribe to the above findings.
Pursuant to Section 12 of Act 3753 (An Act to Establish a Civil Register), the
records of births from all cities and municipalities in the Philippines are officially and
regularly forwarded to the Civil Registrar General in Metro Manila by the Local Civil
Registrars. Since the records of births cover several decades and come from all parts of
the country, to merely access them in the Civil Registry General requires expertise. To
locate one single birth record from the mass, a regular employee, if not more, has to be
engaged. It is highly unlikely that any of these employees in Metro Manila would have
reason to falsify a particular 1957 birth record originating from the Local Civil Registry of
Iloilo City.
With respect to Local Civil Registries, access thereto by interested parties is
obviously easier. Thus, in proving the authenticity of Exhibit "D," more convincing
evidence than those considered by the trial court should have been presented by
respondent.
The trial court held that the doubts respecting the genuine nature of Exhibit "D" are
dispelled by the testimony of Rosita Vencer, Local Civil Registrar of Iloilo City.
The event about which she testified on March 7, 1994 was the record of
respondent's birth which took place on October 22, 1956, on 37 or 38 years ago. The
Local Civil Registrar of Iloilo City at that time was Emilio G. Tomesa. Necessarily,
Vencer's knowledge of respondent's birth record allegedly made and entered in the
Local Civil Registry in January, 1957 was based merely on her general impressions of
the existing records in that Office.
When entries in the Certificate of Live Birth recorded in the Local Civil Registry vary
from those appearing in the copy transmitted to the Civil Registry General, pursuant to
the Civil Registry Law, the variance has to be clarified in more persuasive and rational
manner. In this regard, we find Vencer's explanation not convincing.
Respondent's Certificate of Live Birth No. 477 (Exhibit "D") was recorded in a
December 1, 1958 revised form. Asked how a 1958 form could be used in 1957 when
respondent's birth was recorded, Vencer answered that "xxx during that
time, maybe the forms in 1956 were already exhausted so the former Civil Registrar
had requested for a new form and they sent us the 1958 Revised Form." [13]

The answer is a "maybe", a mere supposition of an event. It does not satisfactorily

explain how a Revised Form dated December 1, 1958 could have been used on
January 30, 1957 or almost (2) years earlier.
Upon the other hand, Exhibit "8" of the petitioners found in the Civil Registrar
General in Metro Manila is on Municipal Form No. 102, revised in July, 1956. We find
no irregularity here. Indeed, it is logical to assume that the 1956 forms would continue to
be used several years thereafter. But for a 1958 form to be used in 1957 is unlikely.
There are other indications of irregularity relative to Exhibit "D." The back cover of
the 1957 bound volume in the Local Civil Registry of Iloilo is torn. Exhibit "D" is merely
pasted with the bound volume, not sewn like the other entries.
The documents bound into one volume are original copies. Exhibit "D" is a carbon
copy of the alleged original and sticks out like a sore thumb because the entries therein
are typewritten, while the records of all other certificates are handwritten. Unlike the
contents of those other certificates, Exhibit "D" does not indicate important particulars,
such as the alleged father's religion, race, occupation, address and business. The
space which calls for an entry of the legitimacy of the child is blank. On the back page of
Exhibit "D", there is a purported signature of the alleged father, but the blanks calling for
the date and other details of his Residence Certificate were not filled up.
When asked to explain the torn back cover of the bound volume, Vencer had no
answer except to state, "I am not aware of this because I am not a bookbinder." As to
why Exhibit "D" was not sewn or bound into the volume, she explained as follows:
"COURT:
I will butt in. Are these instances where your employees would only paste a document
like this Certificate of Live Birth?
WITNESS:
Yes, Your Honor, we are pasting some of the leaves just to replace the
record. Sometimes we just have it pasted in the record when the leaves were taken.
ATTY. TIROL:
You mean to say you allow the leaves of the bound volume to be taken out?
A: No sir. It is because sometimes the leaves are detached so we have to paste
them."[14] (Emphasis ours)

There is no explanation why out of so many certificates, this vital document, Exhibit
"D", was merely pasted with the volume.
Vencer's testimony suffers from infirmities. Far from explaining the anomalous
circumstances surrounding Exhibit "D", she actually highlighted the suspicious
circumstances surrounding its existence.
The records of the instant case adequately support a finding that Exhibit "8" for the
petitioners, not respondent's Exhibit "D", should have been given more faith and
credence by the courts below.
The Civil Registry Law requires, inter alia, the Local Civil Registrar to send copies of
registrable certificates and documents presented to them for entry to the Civil Registrar
General, thus:
Duties of Local Civil Registrar. Local civil registrars shall (a) file registrable certificates
and documents presented to them for entry; (b) compile the same monthly and prepare
and send any information required of them by the Civil-Registrar; (c) issue certified
transcripts or copies of any document registered upon payment of proper fees; (d) order
the binding, properly classified, of all certificates or documents registered during the
year; (e) send to the Civil Registrar-General, during the first ten days of each
month, a copy of the entries made during the preceding month, for filing; (f) index
the same to facilitate search and identification in case any information is required; and
(g) administer oaths, free of charge, for civil register purposes" [15] (Emphasis ours)
In light of the above provisions, a copy of the document sent by the Local Civil
Registrar to the Civil Registrar General should be identical in form and in substance with
the copy being kept by the latter.In the instant case, Exhibit "8", as transmitted to the
Civil Registrar General is not identical with Exhibit "D" as appearing in the records of the
Local Civil Registrar of Iloilo City. Such circumstance should have aroused the suspicion
of both the trial court and the Court of Appeals and should have impelled them to
declare Exhibit "D" a spurious document.
Exhibit "8" shows that respondent's record of birth was made by his mother. In the
same Exhibit "8", the signature and name of Juan C. Locsin listed as respondent's
father and the entry that he and Amparo Escamilla were married in Oton, Iloilo on
November 28, 1954 do not appear.
In this connection, we echo this Court's pronouncement in Roces vs. Local Civil
Registrar[16] that:
Section 5 of Act No. 3753 and Article 280 of the Civil Code of the Philippines x x x
explicitly prohibit, not only the naming of the father of the child born out of
wedlock, when the birth certificate, or the recognition, is not filed or made by him,

but also, the statement of any information or circumstances by which he could be

identified. Accordingly, the Local Civil Registrar had no authority to make or record the
paternity of an illegitimate child upon the information of a third person and the
certificate of birth of an illegitimate child, when signed only by the mother of the
latter, is incompetent evidence of fathership of said child. (Emphasis ours)
The Roces ruling regarding illegitimate filiation is further elucidated in Fernandez
vs. Court of Appeals [17] where this Court said that "a birth certificate not signed by the
alleged father (who had no hand in its preparation) is not competent evidence of
paternity."
A birth certificate is a formidable piece of evidence prescribed by both the Civil
Code and Article 172 of the Family Code for purposes of recognition and
filiation. However, birth certificate offers onlyprima facie evidence of filiation and may be
refuted by contrary evidence.[18] Its evidentiary worth cannot be sustained where there
exists strong, complete and conclusive proof of its falsity or nullity. In this case,
respondent's Certificate of Live Birth No. 477 entered in the records of the Local Civil
Registry (from which Exhibit "D" was machine copied) has all the badges of
nullity. Without doubt, the authentic copy on file in that office was removed and
substituted with a falsified Certificate of Live Birth.
At this point, it bears stressing the provision of Section 23, Rule 132 of the Revised
Rules of Court that "(d)ocuments consisting of entries in public records made in the
performance of a duty by a public officer are prima facie evidence of the facts therein
stated." In this case, the glaring discrepancies between the two Certificates of Live Birth
(Exhibits "D" and "8") have overturned the genuineness of Exhibit "D" entered in the
Local Civil Registry. What is authentic is Exhibit "8" recorded in the Civil Registry
General.
Incidentally, respondent's photograph with his mother near the coffin of the late
Juan C. Locsin cannot and will not constitute proof of filiation, [19] lest we recklessly set a
very dangerous precedent that would encourage and sanction fraudulent
claims. Anybody can have a picture taken while standing before a coffin with others and
thereafter utilize it in claiming the estate of the deceased.
Respondent Juan E. Locsin, Jr. failed to prove his filiation with the late Juan C.
Locsin, Sr.. His Certificate of Live Birth No. 477 (Exhibit "D") is spurious. Indeed,
respondent is not an interested personwithin the meaning of Section 2, Rule 79 of the
Revised Rules of Court entitled to the issuance of letters of administration.
WHEREFORE, the petition is hereby GRANTED. The challenged Decision and
Resolution of the Court of Appeals in CA-G.R. No. 57708 are REVERSED and SET

ASIDE. Respondent's petition for issuance of letters of administration is ORDERED

DISMISSED.
SO ORDERED.
FIRST DIVISION

[G.R. No. 124853. February 24, 1998]

FRANCISCO L. JISON, petitioner, vs. COURT OF APPEALS and MONINA

JISON, respondent.
DECISION
DAVIDE, JR., J.:
This is a petition for review under Rule 45 of the Rules of Court of the 27 April 1995
decision of the Court of Appeals (CA) in CA-G.R. CV No. 32860 [1] which reversed the
decision of Branch 24 of the Regional Trial Court (RTC) of Iloilo City in Civil Case No.
16373.[2] The latter dismissed the complaint of private respondent Monina Jison
(hereafter MONINA) for recognition as an illegitimate child of petitioner Francisco Jison
(hereafter FRANCISCO).
In issue is whether or not public respondent Court of Appeals committed reversible
error, which, in this instance, necessitates an inquiry into the facts. While as a general
rule, factual issues are not within the province of this Court, nevertheless, in light of the
conflicting findings of facts of the trial court and the Court of Appeals, this case falls
under an exception to this rule.[3]
In her complaint[4] filed with the RTC on 13 March 1985, MONINA alleged that
FRANCISCO had been married to a certain Lilia Lopez Jison since 1940. At the end of
1945 or the start of 1946, however, FRANCISCO impregnated Esperanza F. Amolar
(who was then employed as the nanny of FRANCISCO's daughter, Lourdes). As a
result, MONINA was born on 6 August 1946, in Dingle, Iloilo, and since childhood, had
enjoyed the continuous, implied recognition as an illegitimate child of FRANCISCO by
his acts and that of his family. MONINA further alleged that FRANCISCO gave her
support and spent for her education, such that she obtained a Master's degree, became
a certified public accountant (CPA) and eventually, a Central Bank examiner. In view of
FRANCISCO's refusal to expressly recognize her, MONINA prayed for a judicial
declaration of her illegitimate status and that FRANCISCO support and treat her as
such.
In his answer,[5] FRANCISCO alleged that he could not have had sexual relations
with Esperanza Amolar during the period specified in the complaint as she had ceased
to be in his employ as early as 1944, and did not know of her whereabouts since

then; further, he never recognized MONINA, expressly or impliedly, as his illegitimate

child. As affirmative and special defenses, FRANCISCO contended that MONINA had
no right or cause of action against him and that her action was barred by estoppel,
laches and/or prescription. He thus prayed for dismissal of the complaint and an award
of damages due to the malicious filing of the complaint.
After MONINA filed her reply,[6] pre-trial was conducted where the parties stipulated
on the following issues:
1. Did Francisco Jison have any sexual relation[s] with Esperanza Am[o]lar
about the end of 1945 or the start of 1946?
2. Is Monina Jison the recognized illegitimate daughter of Francisco Jison by
the latters own acts and those of his family?
3. Is Monina Jison barred from instituting or prosecuting the present action by
estoppel, laches and/or prescription?
4. Damages.[7]
At trial on the merits, MONINA presented a total of eleven (11) witnesses,
namely: herself, Ruben Castellanes, Sr., Adela Casabuena, Arsenio Duatin, Zafiro
Ledesma, Danthea Lopez, Romeo Bilbao, Rudy Tingson, Alfredo Baylosis, Dominador
Zavariz and Lope Amolar.
Ruben Castellanes, Sr., a 63-year old resident of Iloilo City, testified that he had
worked for FRANCISCO for a total of six (6) years at Nelly Garden, FRANCISCO's Iloilo
residence.Towards the end of the Japanese occupation, FRANCISCOs wife suffered a
miscarriage or abortion, thereby depriving FRANCISCO of consortium; thereafter,
FRANCISCOs wife managed a nightclub on the ground floor of Nelly Garden which
operated daily from 6:00 p.m. till 3:00 a.m. of the following day, thereby allowing
FRANCISCO free access to MONINAs mother, Esperanza Amolar, who was
nicknamed Pansay.
Adela Casabuena, a 61-year old farmer, testified that she served as
the yaya (nanny) of Lourdes from July 1946 up to February 1947. Although Pansay had
left Nelly Garden two (2) weeks before Adela started working for the
Jisons, Pansay returned sometime in September 1946, or about one month after she
gave birth to MONINA, to ask FRANCISCO for support. As a result, Pansay and Lilia
Jison, FRANCISCO's wife, quarreled in the living room, and in the course
thereof, Pansay claimed that FRANCISCO was the father of her baby. To which, Lilia
replied: I did not tell you to make that baby so it is your fault. During the quarrel which
lasted from 10:30 till 11:00 a.m., FRANCISCO was supposedly inside the house
listening.
Arsenio Duatin, a 77-year old retired laborer, testified that from 1947 until 1977, he
worked as FRANCISCOs houseboy at the latters house on 12th Street, Capitol
Subdivision, Bacolod City. Arsenio met MONINA in 1967, when Felipe Lagarto, the
bookkeeper at Nelly Garden, informed Arsenio that MONINA, FRANCISCOs daughter,
would arrive at Bacolod City with a letter of introduction from Lagarto.

Initially, Arsenio identified seven (7) black-and-white photographs (Exhs. X-5 to X11) of MONINA,[8] and as he paid for the telephone bills, he likewise identified six (6)
telephone cards (Exhs. G to L). Arsenio then declared that when MONINA arrived in
Bacolod City, she introduced herself to him as FRANCISCOs daughter. She stayed at
FRANCISCOs house, but when the latter and his wife would come over, Arsenio would
conceal the presence of MONINA because Mrs. Jison did not like to see her face. Once,
Arsenio hid MONINA in the house of FRANCISCOs sister, Mrs. Luisa Jison Alano, in
Silay City; another time, at the residence of FRANCISCOs cousin, Mrs. Concha Lopez
Cuaycong. Finally, Arsenio declared that the last time he saw MONINA was when she
left for Manila, after having finished her schooling at La Salle College in Bacolod City.
On re-direct and upon questions by the court, Arsenio disclosed that it was
FRANCISCO who instructed that MONINA be hidden whenever FRANCISCO and his
wife were around; that although FRANCISCO and MONINA saw each other at the
Bacolod house only once, they called each other through long distance; and that
MONINA addressed FRANCISCO as Daddy during their lone meeting at the Bacolod
house and were affectionate to each other. Arsenio likewise declared that MONINA
stayed at FRANCISCO's Bacolod house twice: first for a month, then for about a week
the second time. On both occasions, however, FRANCISCO and his wife were
abroad. Finally, Arsenio recalled that FRANCISCO likewise bade Arsenio to treat
MONINA like his (FRANCISCOs) other daughters.
The testimony of Zafiro Ledesma, a 74-year old banker and former mayor of Iloilo
City, initially touched on how he and his wife were related to FRANCISCO,
FRANCISCO's wife and MONINA. Zafiro first identified Exhibit R, a diagram of the
family trees of the Jison and Lopez families, which showed that former Vice-President
Fernando Lopez was the first cousin of FRANCISCOs wife, then told the court that the
family of Vice-President Lopez treated MONINA very well because she is considered a
relative xxx by reputation, by actual perception. Zafiro likewise identified Exhibits X-13
to X-18, photographs taken at the 14 April 1985 birthday celebration of Mrs. Fernando
Lopez, which showed MONINA with the former Vice-President and other members of
the Lopez family.
Zafiro further testified that while MONINA lived with Mrs. Cuaycong, the latter paid
for some of MONINAs school needs and even asked MONINA to work in a hospital
owned by Mrs. Cuaycong; and that another first cousin of FRANCISCOs wife, a certain
Remedios Lopez Franco, likewise helped MONINA with her studies and problems, and
even attended MONINAs graduation in 1978 when she obtained a masteral degree in
Business Administration, as evidenced by another photograph (Exh. X-12). Moreover,
upon Remedios recommendation, MONINA was employed as a secretary at Merchant
Financing Company, which was managed by a certain Danthea Lopez, the wife of
another first cousin of FRANCISCOs wife, and among whose directors were Zafiro
himself, his wife and Dantheas husband. In closing, Zafiro identified MONINAs Social
Security Record (Exh. W), which was signed by Danthea as employer and where
MONINA designated Remedios as the beneficiary.
Danthea Lopez, a 58-year old housekeeper, declared that FRANCISCO was the
first cousin of her husband, Eusebio D. Lopez; and that she came to know MONINA in

the latter part of 1965 when Remedios Franco recommended MONINA for employment
at Merchant Financing Co., which Danthea managed at that time. Remedios introduced
MONINA to Danthea as being reputedly the daughter of Mr. Frank Jison; and on several
occasions thereafter, Remedios made Danthea and the latters husband understand that
MONINA was reputedly the daughter of [FRANCISCO]. While MONINA worked at
Merchant Financing, Danthea knew that MONINA lived with Remedios; however, in the
latter part of 1966, as Remedios left for Manila and MONINA was still studying at San
Agustin University, Danthea and her husband invited MONINA to live with them. During
MONINAs 6-month stay with them, she was not charged for board and lodging and was
treated as a relative, not a mere employee, all owing to what Remedios had said
regarding MONINAs filiation. As Danthea understood, MONINA resigned from Merchant
Financing as she was called by Mrs. Cuaycong, a first cousin of Dantheas husband who
lived in Bacolod City.
Romeo Bilbao, a 43-year old seaman, testified that he had worked for FRANCISCO
from 1969 up to 1980 at Nelly Garden in various capacities: as a procurement officer,
hacienda overseer and, later, as hacienda administrator. Sometime in May, 1971,
Romeo saw and heard MONINA ask her Daddy (meaning FRANCISCO) for the money
he promised to give her, but FRANCISCO answered that he did not have the money to
give, then told MONINA to go see Mr. Jose Cruz in Bacolod City. Then in the middle of
September that year, FRANCISCO told Romeo to pick up Mr. Cruz at the Iloilo pier and
bring him to the office of Atty. Benjamin Tirol. At said office, Atty. Tirol, Mr. Cruz and
MONINA entered a room while Romeo waited outside.When they came out, Atty. Tirol
had papers for MONINA to sign, but she refused. Atty. Tirol said that a check would be
released to MONINA if she signed the papers, so MONINA acceded, although Atty. Tirol
intended not to give MONINA a copy of the document she signed. Thereafter, Mr. Cruz
gave MONINA a check (Exh. Q), then MONINA grabbed a copy of the document she
signed and ran outside. Romeo then brought Mr. Cruz to Nelly Garden. As to his motive
for testifying, Romeo stated that he wanted to help MONINA be recognized as
FRANCISCOS daughter.
Rudy Tingson, a 45-year old antique dealer, testified that in 1963-1964, he was
employed by FRANCISCOs wife at the Baguio Military Institute in Baguio City; then in
1965, Rudy worked at FRANCISCOs office at Nelly Garden recording hacienda
expenses, typing vouchers and office papers, and, at times, acting as paymaster for the
haciendas. From the nature of his work, Rudy knew the persons receiving money from
FRANCISCOs office, and clearly remembered that in 1965, as part of his job, Rudy
gave MONINA her allowance from FRANCISCO four (4) times, upon instructions of a
certain Mr. Lagarto to give MONINA P15.00 a month. Rudy likewise recalled that he first
met MONINA in 1965, and that she would go to Nelly Garden whenever FRANCISCOs
wife was not around. On some of these occasions, MONINA would speak with and
address FRANCISCO as Daddy, without objection from FRANCISCO. In fact, in 1965,
Rudy saw FRANCISCO give MONINA money thrice. Rudy further declared that in April
1965, FRANCISCOs office paid P250.00 to Funeraria Bernal for the funeral expenses of
MONINAs mother. Finally, as to Rudy's motives for testifying, he told the court that he
simply wanted to help bring out the truth and nothing but the truth, and that MONINAs
filiation was common knowledge among the people in the office at Nelly Garden.

On re-direct, Rudy declared that the moneys given by FRANCISCOs office to

MONINA were not reflected in the books of the office, but were kept in a separate book,
as Mr. Lagarto explained that FRANCISCOs wife and children should not know [of]
this. Rudy further revealed that as to the garden meetings between FRANCISCO and
MONINA, Rudy saw MONINA kiss FRANCISCO on the cheek both upon arriving and
before leaving, and FRANCISCOs reaction upon seeing her was to smile and say in the
Visayan dialect: Kamusta ka iha? (How are you, daughter?); and that MONINA was free
to go inside the house as the household staff knew of her filiation, and that, sometimes,
MONINA would join them for lunch.
Alfredo Baylosis, a 62-year old retired accountant, testified that he worked for
FRANCISCO at Central Santos-Lopez in Iloilo from 1951 up to 1961, then at Nelly
Garden from 1961 until 1972. Alfredo first served FRANCISCO as a bookkeeper, then
when Mr. Lagarto died in 1967 or 1969, Alfredo replaced Mr. Lagarto as office manager.
Alfredo knew MONINA since 1961 as she used to go to Nelly Garden to claim
her P15.00 monthly allowance given upon FRANCISCOs standing order. Alfredo further
declared thatMONINAs filiation was pretty well-known in the office; that he had seen
MONINA and FRANCISCO go from the main building to the office, with FRANCISCOs
arm on MONINAs shoulder;and that the office paid for the burial expenses of Pansay,
but this was not recorded in the books in order to hide it from FRANCISCOs
wife. Alfredo also disclosed that the disbursements for MONINAs allowance started in
1961 and were recorded in a separate cash book. In 1967, the allowances ceased when
MONINA stopped schooling and was employed in Bacolod City with Miller, Cruz & Co.,
which served as FRANCISCOs accountant-auditor. Once, when Alfredo went to the
offices of Miller, Cruz & Co. to see the manager, Mr. Atienza, and arrange for the
preparation of FRANCISCOs income tax return, Alfredo chanced upon MONINA. When
Alfredo asked her how she came to work there, she answered that her Daddy,
FRANCISCO,recommended her, a fact confirmed by Mr. Atienza. Alfredo then claimed
that Mr. Jose Cruz, a partner at Miller, Cruz & Co., was the most trusted man of
FRANCISCO.
Dominador Savariz, a 55-year old caretaker, testified that he worked as
FRANCISCOs houseboy at Nelly Garden from November 1953 up to 1965. One
morning in April 1954, MONINA and her mother Pansay went to Nelly Garden and
spoke with FRANCISCO for about an hour, during which time, Dominador was
vacuuming the carpet about six (6) to seven (7) meters away. Due to the noise of the
vacuum cleaner, FRANCISCO and MONINA spoke in loud voices, thus Dominador
overheard
their
conversation. As
FRANCISCO
asked Pansay why
they
came, Pansay answered that they came to ask for the sustenance of his child
MONINA. FRANCISCO then touched MONINA's head and asked: How are you Hija?, to
which MONINA answered: Good morning, Daddy. After FRANCISCO told Pansay and
MONINA to wait, he pulled something from his wallet and said to Pansay: I am giving
this for the child.
In May 1954, Dominador saw MONINA at Mr. Lagartos office where Dominador was
to get the days expenses, while MONINA was claiming her allowance from Mr.
Diasnes. The next month, Dominador saw MONINA at Nelly Garden and heard in the

office that MONINA was there to get her allowance from her Daddy. In December 1960,
Dominador saw MONINA at Nelly Garden, in the room of Don Vicente (father of
FRANCISCOs wife), where she asked for a Christmas gift and she was calling Don
Vicente, Lolo (grandfather). At that time, FRANCISCO and his wife were not
around. Then sometime in 1961, when Dominador went to Mr. Lagartos office to get the
marketing expenses, Dominador saw MONINA once more claiming her allowance.
Dominador further testified that in February 1966, after he had stopped working for
FRANCISCO, Dominador was at Mrs. Francos residence as she recommended him for
employment with her sister, Mrs. Concha Cuaycong. There, he saw MONINA, who was
then about 15 years old, together with Mrs. Francos daughter and son. Mrs. Franco
pointed at MONINA and asked Dominador if he knew who MONINA was. Dominador
answered that MONINA was FRANCISCOs daughter with Pansay, and then Mrs.
Franco remarked that MONINA was staying with her (Mrs. Franco) and that she was
sending MONINA to school at the University of San Agustin.
Lope Amolar, a 50-year old resident of Dingle, Iloilo, and the younger brother of
Esperanza Amolar (Pansay), testified that he worked for FRANCISCO as a houseboy
from March to November 1945 at Nelly Garden. Thereafter, FRANCISCO sent Lope to
work at Elena Apartments in Manila. By November 1945, Pansay was also working at
Elena Apartments, where she revealed to Lope that FRANCISCO impregnated
her. Lope then confronted FRANCISCO, who told Lope dont get hurt and dont cause
any trouble, because I am willing to support yourInday Pansay and my child. Three (3)
days after this confrontation, Lope asked for and received permission from
FRANCISCO to resign because he (Lope) was hurt.
On 21 October 1986, MONINA herself took the witness stand. At that time, she was
40 years old and a Central Bank Examiner. She affirmed that as evidenced by
certifications from the Office of the Local Civil Registrar (Exhs. E and F) and baptismal
certificates (Exhs. C and D), she was born on 6 August 1946 in Barangay Tabugon,
Dingle, Iloilo, to Esperanza Amolar (who passed away on 20 April 1965) and
FRANCISCO.[9] MONINA first studied at Sagrado where she stayed as a boarder. While
at Sagrado from 1952 until 1955 (up to Grade 4), her father, FRANCISCO, paid for her
tuition fees and other school expenses. She either received the money from
FRANCISCO or from Mr. Lagarto, or saw FRANCISCO give money to her mother, or
Mr. Lagarto would pay Sagrado directly. After Sagrado, MONINA studied in different
schools,[10] but FRANCISCO continuously answered for her schooling.
For her college education, MONINA enrolled at the University of Iloilo, but she later
dropped due to an accident which required a week's hospitalization. Although
FRANCISCO paid for part of the hospitalization expenses, her mother shouldered most
of them. In 1963, she enrolled at the University of San Agustin, where she stayed with
Mrs. Franco who paid for MONINA's tuition fees. However, expenses for books, school
supplies, uniforms and the like were shouldered by FRANCISCO. At the start of each
semester, MONINA would show FRANCISCO that she was enrolled, then he would ask
her to canvass prices, then give her the money she needed. After finishing two (2)
semesters at University of San Agustin, as evidenced by her transcript of records (Exh.
Z showing that FRANCISCO was listed as Parent/Guardian [Exh. Z-1]), she transferred

to De Paul College, just in front of Mrs. Francos house, and studied there for a
year. Thereafter, MONINA enrolled at Western Institute of Technology (WIT), where she
obtained a bachelors degree in Commerce in April 1967. During her senior year, she
stayed with Eusebio and Danthea Lopez at Hotel Kahirup, owned by said couple. She
passed the CPA board exams in 1974, and took up an M.B.A. at De La Salle University
as evidenced by her transcript (Exh. AA), wherein FRANCISCO was likewise listed as
Guardian (Exhs. AA-1 and AA-2).
MONINA enumerated the different members of the household staff at Nelly Garden,
to wit: Luz, the household cook; the houseboys Silvestre and Doming; the housemaid
Natang; theyaya of the adopted triplets, Deling; the yaya of Lolo Vicente, Adelina; and
others. MONINA likewise enumerated the members of the office staff (Messrs. Baylosis,
Lagarto, Tingson, Diasnes, Jalandoni, Supertisioso, Doroy, and others), and identified
them from a photograph marked as Exhibit X-2. She then corroborated the prior
testimony regarding her employment at Merchant Financing Co., and her having lived at
Hotel Kahirup and at Mrs. Cuaycongs residence in Bacolod City, while working at the
hospital owned by Mrs. Cuaycong.
MONINA further testified that in March 1968, she went to Manila and met
FRANCISCO at Elena Apartments at the corner of Romero and Salas Streets,
Ermita. She told FRANCISCO that she was going for a vacation in Baguio City with Mrs.
Francos mother, with whom she stayed up to June 1968. Upon her return from Baguio
City, MONINA told FRANCISCO that she wanted to work, so the latter arranged for her
employment at Miller & Cruz in Bacolod City. MONINA went to Bacolod City, was
interviewed by Mr. Jose Cruz, a partner at Miller & Cruz, who told her she would start
working first week of September, sans examination. She resigned from Miller & Cruz in
1971 and lived with Mrs. Cuaycong at her Forbes Park residence in Makati.MONINA
went to see FRANCISCO, told him that she resigned and asked him for money to go to
Spain, but FRANCISCO refused as she could not speak Spanish and would not be able
find a job. The two quarreled and FRANCISCO ordered a helper to send MONINA out of
the house. In the process, MONINA broke many glasses at the pantry and cut her hand,
after which, FRANCISCO hugged her, gave her medicine, calmed her down, asked her
to return to Bacolod City and promised that he would give her the money.
MONINA returned to Bacolod City by plane, using a Filipinas Orient Airways plane
ticket (Exh. M) which FRANCISCO gave. She called Mr. Cruz, then Atty. Tirol, as
instructed by Mr. Cruz. These calls were evidenced by PLDT long distance toll cards
(Exhs. G to L), with annotations at the back reading: charged and paid under the name
of Frank L. Jison and were signed by Arsenio Duatin (Exhs. G-1 to L-1). PLDT issued a
certification as to the veracity of the contents of the toll cards (Exh. BB). Likewise
introduced in evidence was a letter of introduction prepared by Mr. Cruz addressed to
Atty. Tirol, on MONINA's behalf (Exh. N).
MONINA also declared that Atty. Tirol then told her that she would have to go to
Iloilo and sign a certain affidavit, before Mr. Cruz would turn over the money promised
by FRANCISCO.She went to Atty. Tirols office in Iloilo, but after going over the draft of
the affidavit, refused to sign it as it stated that she was not FRANCISCOs daughter. She
explained that all she had agreed with FRANCISCO was that he would pay for her fare

to go abroad, and that since she was a little girl, she knew about her illegitimacy. She
started crying, begged Atty. Tirol to change the affidavit, to which Atty. Tirol responded
that he was also a father and did not want this to happen to his children as they could
not be blamed for being brought into the world.She then wrote a letter (Exh. O) to
FRANCISCO and sent it to the latters Forbes Park residence (Bauhinia Place) by JRS
courier service (Exhs. O-5 to O-7). MONINA subsequently met FRANCISCO in Bacolod
City where they discussed the affidavit which she refused to sign. FRANCISCO told her
that the affidavit was for his wife, that in case she heard about MONINA going abroad,
the affidavit would keep her peace.
MONINA then narrated that the first time she went to Atty. Tirols office, she was
accompanied by one Atty. Fernando Divinagracia, who advised her that the affidavit
(Exh. P)[11] would boomerang against FRANCISCO as it is contrary to law. MONINA
returned to Bacolod City, then met with Atty. Tirol once more to reiterate her plea, but
Atty. Tirol did not relent. Thus, on the morning of 20 or 21 September 1971, she signed
the affidavit as she was jobless and needed the money to support herself and finish her
studies. In exchange for signing the document, MONINA received a Bank of Asia check
for P15,000.00 (Exh. Q), which was less than the P25,000.00 which FRANCISCO
allegedly promised to give. As Atty. Tirol seemed hesitant to give her a copy of the
affidavit after notarizing it, MONINA merely grabbed a copy and immediately left.
MONINA then prepared to travel abroad, for which purpose, she procured letters of
introduction (Exhs. S and T) from a cousin, Mike Alano (son of FRANCISCOs elder
sister Luisa);and an uncle, Emilio Jison (FRANCISCOs elder brother), addressed to
another cousin, Beth Jison (Emilios daughter), for Beth to assist MONINA. Exhibit S
contained a statement (Exh. S-1) expressly recognizing that MONINA was
FRANCISCOs daughter. Ultimately though, MONINA decided not to go abroad, opting
instead to spend the proceeds of the P15,000.00 check for her CPA review, board exam
and graduate studies. After finishing her graduate studies, she again planned to travel
abroad, for which reason, she obtained a letter of introduction from former Vice
President Fernando Lopez addressed to then United States Consul Vernon McAnnich
(Exh. V).
As to other acts tending to show her filiation, MONINA related that on one occasion,
as FRANCISCOs wife was going to arrive at the latters Bacolod City residence,
FRANCISCO called Arsenio Duatin and instructed Arsenio to hide MONINA. Thus,
MONINA stayed with Mrs. Luisa Jison for the duration of the stay of FRANCISCOs
wife. MONINA also claimed that she knew Vice President Fernando Lopez and his wife,
Mariquit, even before starting to go to school. Thus, MONINA asked for a
recommendation letter (Exh. U) from Mrs. Mariquit Lopez for possible employment with
Mrs. Rosario Lopez Cooper, another second cousin of FRANCISCO. In Exhibit U, Mrs.
Lopez expressly recognized MONINA as FRANCISCOs daughter. As additional proof of
her close relationship with the family of Vice President Lopez, MONINA identified
photographs taken at a birthday celebration on 14 April 1985.
MONINA finally claimed that she knew the three (3) children of FRANCISCO by
wife, namely, Lourdes, Francisco, Jr. (Junior) and Elena, but MONINA had met only
Lourdes and Junior.MONINA's testimony dealt lengthily on her dealings with Junior and

the two (2) occasions when she met with Lourdes. The last time MONINA saw
FRANCISCO was in March 1979, when she sought his blessings to get married.
In his defense, FRANCISCO offered his deposition taken before then Judge Romeo
Callejo of the Regional Trial Court of Manila, Branch 48. As additional witnesses,
FRANCISCO presented Nonito Jalandoni, Teodoro Zulla, Iigo Supertisioso, Lourdes
Ledesma, Jose Cruz and Dolores Argenal.
FRANCISCO declared that Pansays employment ceased as of October, 1944, and
that while employed by him, Pansay would sleep with the other female helpers on the
first floor of his residence, while he, his wife and daughter slept in a room on the second
floor. At that time, his household staff was composed of three (3) female workers and
two (2) male workers. AfterPansay left in October 1944, she never communicated with
him again, neither did he know of her whereabouts. FRANCISCO staunchly denied
having had sexual relations with Pansay and disavowed any knowledge about
MONINAs birth. In the same vein, he denied having paid for MONINAs tuition fees, in
person or otherwise, and asserted that he never knew that Mr. Lagarto paid for these
fees. Moreover, FRANCISCO could not believe that Lagarto would pay for these fees
despite absence of instructions or approval from FRANCISCO. He likewise categorically
denied that he told anyone, be it Danthea Lopez, Zafiro Ledesma, Concha Cuaycong or
Remedios Franco, that MONINA was his daughter.
FRANCISCO also disclosed that upon his return from the United States in 1971, he
fired Alfredo Baylosis upon discovering that Alfredo had taken advantage of his position
during the formers absence. FRANCISCO likewise fired Rudy Tingson and Romeo
Bilbao, but did not give the reasons therefor.
Finally, FRANCISCO denied knowledge of MONINAs long distance calls from his
Bacolod residence; nevertheless, when he subsequently discovered this, he fired
certain people in his office for their failure to report this anomaly. As regards the
caretaker of his Bacolod residence, FRANCISCO explained that since MONINA lived at
Mrs. Cuaycongs residence, the caretaker thought that he could allow people who lived
at the Cuaycong residence to use the facilities at his (FRANCISCOs) house.
Nonito Jalandoni, bookkeeper and paymaster at Nellys Garden from 1963 up to
1974, then from 1980 up to 1986, the assistant overseer of Hacienda Lopez, testified
that he did not know MONINA; that he learned of her only in June 1988, when he was
informed by FRANCISCO that MONINA had sued him; and that he never saw MONINA
at Nellys Garden, neither did he know of any instructions for anyone at Nellys Garden to
give money to MONINA.
Teodoro Zulla, FRANCISCOs bookkeeper and paymaster from 1951 up to 1986,
testified that FRANCISCO dismissed Alfredo Baylosis due to certain unspecified
discrepancies; and that he never saw MONINA receive funds from either Mr. Lagarto or
Mr. Baylosis. Upon questions from the trial court, however, Teodoro admitted that he
prepared vouchers for only one of FRANCISCOs haciendas, and not vouchers
pertaining to the latters personal expenses.
Iigo Supertisioso testified that he worked for FRANCISCO at Nellys Garden from
1964 up to 1984 as a field inspector, paymaster, cashier and, eventually, officer-in-

charge (OIC). He confirmed Alfredo Baylosis dismissal due to these unspecified

irregularities, then denied that FRANCISCO ever ordered that MONINA be given her
allowance. Likewise, Iigo never heard FRANCISCO mention that MONINA was his
(FRANCISCOs) daughter.
Lourdes Ledesma, FRANCISCOs daughter, testified that she saw (but did not
know) MONINA at the Our Lady of Mercy Hospital, on the occasion of the birth of
Lourdes first son, Mark.Over lunch one day, Lourdes aunt casually introduced Lourdes
and MONINA to each other, but they were referred to only by their first names. Then
sometime in 1983 or 1984, MONINA allegedly went to Lourdes house in Sta. Clara
Subdivision requesting for a letter of introduction or referral as MONINA was then jobhunting. However, Lourdes did not comply with the request.
Jose Cruz, a partner at Miller, Cruz & Co., testified that MONINA worked at Miller &
Cruz from 1968 up to 1971, however, he did not personally interview her before she was
accepted for employment. Moreover, MONINA underwent the usual screening
procedure before being hired. Jose recalled that one of the accountants, a certain Mr.
Atienza, reported that MONINA claimed to be FRANCISCOs daughter. Jose then told
Mr. Atienza to speak with MONINA and see if he (Mr. Atienza) could stop her from
spreading this rumor. Mr. Atienza reported that he spoke with MONINA, who told him
that she planned to leave for the United States and needed P20,000.00 for that
purpose, and in exchange, she would sign a document disclaiming filiation with
FRANCISCO. Thus, Jose instructed Mr. Atienza to request that MONINA meet with
Jose, and at that meeting, MONINA confirmed Mr. Atienzas report. Jose then informed
Atty. Tirol, FRANCISCOs personal lawyer, about the matter.
Atty. Tirol told Jose to send MONINA and her lawyer to his (Atty. Tirols) office in
Iloilo. Jose then wrote out a letter of introduction for MONINA addressed to Atty.
Tirol. Jose relayed Atty. Tirols message to MONINA through Mr. Atienza, then later, Atty.
Tirol told Jose to go to Iloilo with a check for P15,000.00. Jose complied, and at Atty.
Tirols office, Jose saw MONINA, Atty. Tirol and his secretary reading some
documents. MONINA
then
expressed
her
willingness
to
sign
the
document, sans revisions. Jose alleged that he drew the P15,000.00 from his personal
funds, subject to reimbursement from and due to an understanding with FRANCISCO.
Dolores Argenal, a househelper at Nelly Garden from May 1944 up to May 1946,
testified that she knew that Pansay was Lourdes nanny; that Lourdes slept in her
parents room; that she had not seen FRANCISCO give special treatment
to Pansay; that there was no unusual relationship between FRANCISCO
and Pansay, and if there was any, Dolores would have easily detected it since she slept
in the same room as Pansay. Dolores further declared that whenever FRANCISCOs
wife was out of town, Pansay would bring Lourdes downstairs at nighttime, and
that Pansay would not sleep in the room where FRANCISCO slept. Finally, Dolores
declared that Pansay stopped working for FRANCISCO and his wife in October, 1944.
The reception of evidence having been concluded, the parties filed their respective
memoranda.

It need be recalled that Judge Catalino Castaeda, Jr. presided over trial up to 21
October 1986, thereby hearing only the testimonies of MONINAs witnesses and about
half of MONINAs testimony on direct examination. Judge Norberto E. Devera, Jr. heard
the rest of MONINA's testimony and those of FRANCISCOs witnesses.
In its decision of 12 November 1990[12] the trial court, through Judge Devera,
dismissed the complaint with costs against MONINA. In the opening paragraph thereof,
it observed:
This is a complaint for recognition of an illegitimate child instituted by plaintiff Monina
Jison against defendant Francisco Jison. This complaint was filed on March 13, 1985 at
the time when plaintiff, reckoned from her death of birth, was already thirty-nine years
old. Noteworthy also is the fact that it was instituted twenty years after the death of
plaintiffs mother, Esperanza Amolar. For the years between plaintiffs birth and
Esperanzas death, no action of any kind was instituted against defendant either by
plaintiff, her mother Esperanza or the latters parents.Neither had plaintiff brought such
an action against defendant immediately upon her mothers death on April 20, 1965,
considering that she was then already nineteen years old or, within a reasonable time
thereafter. Twenty years more had to supervene before this complaint was eventually
instituted.
The trial court then proceeded to discuss the four issues stipulated at pre-trial,
without, however, summarizing the testimonies of the witnesses nor referring to the
testimonies of the witnesses other than those mentioned in the discussion of the issues.
The trial court resolved the first issue in the negative, holding that it was improbable
for witness Lope Amolar to have noticed that Pansay was pregnant upon seeing her at
the Elena Apartments in November 1945, since Pansay was then only in her first month
of pregnancy; that there was no positive assertion that copulation did indeed take place
between Francisco and Esperanza; and that MONINAs attempt to show opportunity on
the part of FRANCISCO failed to consider that there was also the opportunity for
copulation between Esperanza and one of the several domestic helpers admittedly also
residing at Nellys Garden at that time. The RTC also ruled that the probative value of
the birth and baptismal certificates of MONINA paled in light of jurisprudence, especially
when the misspellings therein were considered.
The trial court likewise resolved the second issue in the negative, finding that
MONINAs evidence thereon may either be one of three categories, namely: hearsay
evidence, incredulous evidence, or self-serving evidence." To the first category
belonged the testimonies of Adela Casabuena and Alfredo Baylosis, whose knowledge
of MONINAs filiation was based, as to the former, on utterances of defendants wife Lilia
and Esperanza allegedly during the heat of their quarrel, while as to the latter, Alfredo's
conclusion was based from the rumors going [around] that plaintiff is defendants
daughter, from his personal observation of plaintiffs facial appearance which he
compared with that of defendants and from the way the two (plaintiff and defendant)
acted and treated each other on one occasion that he had then opportunity to closely
observe them together. To the second category belonged that of Dominador Savariz, as:

At each precise time that Esperanza allegedly visited Nellys Garden and allegedly on
those occasions when defendants wife, Lilia was in Manila, this witness was there and
allegedly heard pieces of conversation between defendant and Esperanza related to the
paternity of the latters child. xxx
The RTC then placed MONINAs testimony regarding the acts of recognition
accorded her by FRANCISCOs relatives under the third category, since the latter were
never presented as witnesses, for which reason the trial court excluded the letters from
FRANCISCOs relatives (Exhs. S to V).
As to the third issue, the trial court held that MONINA was not barred by prescription
for it was of the perception that the benefits of Article 268 accorded to legitimate
children may be availed of or extended to illegitimate children in the same manner as
the Family Code has so provided; or by laches, which is [a] creation of equity applied
only to bring equitable results, and addressed to the sound discretion of the court [and]
the circumstances [here] would show that whether plaintiff filed this case immediately
upon the death of her mother Esperanza in 1965 or twenty years thereafter in 1985, xxx
there seems to be no inequitable result to defendant as related to the situation of
plaintiff.
The RTC ruled, however, that MONINA was barred by estoppel by deed because of
the affidavit (Exh. P/Exh. 2) which she signed when she was already twenty-five years,
a professional and under the able guidance of counsel.
Finally, the RTC denied FRANCISCOs claim for damages, finding that MONINA did
not file the complaint with malice, she having been propelled by an honest belief,
founded on probable cause.
MONINA seasonably appealed to the Court of Appeals (CA-G.R. CV No. 32860)
and sought reversal of the trial courts decision on the grounds that:
I
THE TRIAL COURT WAS ERRONEOUSLY PREDISPOSED TO ADJUDGE
THIS CASE AGAINST APPELLANT DUE TO ITS MISPERCEPTION THAT
APPELLANTS DELAY IN FILING HER COMPLAINT WAS FATAL TO HER
CASE.
II
THE TRIAL COURT ERRED IN ITS REJECTION OF THE TESTIMONIES
OF APPELLANTS WITNESSES AS TAILOR-MADE, INADEQUATE AND
INCREDIBLE.
III
THE TRIAL COURT ERRED IN ITS REJECTION OF THE ADMISSIBILITY
OF THE CERTIFIED COPIES OF PUBLIC DOCUMENTS PRESENTED BY
APPELLANT AS PART OF HER EVIDENCE.
IV

THE TRIAL COURT ERRED IN ITS REQUIREMENT THAT A WITNESS TO

THE ACTUAL ACT OF COPULATION BETWEEN THE APPELLEE AND
APPELLANTS MOTHER SHOULD HAVE POSITIVELY TESTIFIED TO SAID
EFFECT.
V
THE TRIAL COURT ERRED IN REJECTING THE ADMISSIBILITY OF THE
DULY IDENTIFIED NOTES AND LETTER OF THE RELATIVES OF THE
APPELLEE AS HEARSAY.
VI
THE TRIAL COURT ERRED IN CONCLUDING THAT APPELLANTS
AFFIDAVIT (EXH. P) SERVED AS A BAR AGAINST HER CLAIM FOR
RECOGNITION INSTEAD OF REINFORCING SAID CLAIM.[13]
Expectedly, FRANCISCO refuted these alleged errors in his Appellees Brief. [14]
In its decision of 27 April 1995, [15] the Court of Appeals initially declared that as no
vested or acquired rights were affected, the instant case was governed by Article 175, in
relation to Articles 172 and 173, of the Family Code. [16] While the Court of Appeals
rejected the certifications issued by the Local Civil Registrar of Dingle, Iloilo (Exhs. E
and F) as FRANCISCO did not sign them, said court focused its discussion on the other
means by which illegitimate filiation could be proved, i.e., the open and continuous
possession of the status of an illegitimate child or, by any other means allowed by the
Rules of Court and special laws, such as the baptismal certificate of the child, a judicial
admission, a family bible wherein the name of the child is entered, common reputation
respecting pedigree, admission by silence, testimonies of witnesses xxx. [17] To the Court
of Appeals, the bottom line issue was whether or not MONINA established her filiation
as FRANCISCOs illegitimate daughter by preponderance of evidence, as to which issue
said court found:
[N]ot just preponderant but overwhelming evidence on record to prove that [MONINA] is
the illegitimate daughter of [FRANCISCO] and that she had continuously enjoyed such
status by direct acts of [FRANCISCO] and/or his relatives.
In so ruling, the Court of Appeals observed that the testimonies of Lope Amolar,
Adela Casabuena and Dominador Savariz were already sufficient to establish
MONINAs filiation:
As adverted to earlier, the trial court discredited Lope Amolars testimony by saying that
Lope could not have detected Esperanzas pregnant state in November, 1945 since at
that point in time [sic] she was still in the initial stage of pregnancy. Apparently, the trial
court paid more emphasis on the date mentioned by Lope Amolar than on the tenor and
import of his testimony.As xxx Lope xxx was asked about an incident that transpired
more than 41 years back, [u]nder the circumstances, it is unreasonable to expect that
Lope could still be dead right on the specific month in 1945 that [he] met and confronted
his sister. At any rate, what is important is not the month that they met but the essence

of his testimony that his sister pointed to their employer [FRANCISCO] as the one
responsible for her pregnancy, and that upon being confronted, [FRANCISCO] assured
him of support for Esperanza and their child. It would appear then that in an attempt to
find fault with Lopes testimony, the trial court has fallen oblivious to the fact that even
[FRANCISCO], in his deposition, did not deny that he was confronted by Lope about
what he had done to Esperanza, during which he unequivocally acknowledged paternity
by assuring Lope of support for both Esperanza and their child.
The Court of Appelas further noted that Casabuena and Savariz testified on
something that they personally observed or witnessed, which matters FRANCISCO did
not deny or refute.Finally, said court aptly held:
Taking into account all the foregoing uncontroverted testimonies xxx let alone such
circumstantial evidence as [MONINAs] Birth Certificates xxx and Baptismal Certificates
which invariably bear the name of [FRANCISCO] as her father, We cannot go along with
the trial courts theory that [MONINAs] illegitimate filiation has not been satisfactorily
established.
xxx
Significantly, [MONINAs] testimony finds ample corroboration from [FRANCISCOs]
former employees, Arsenio Duatin, Rudy Tingson and Alfredo Baylosis. xxx
xxx
Carefully evaluating appellants evidence on her enjoyment of the status of an
illegitimate daughter of [FRANCISCO] vis-a-vis [FRANCISCOs] controversion thereof,
We find more weight in the former. The positive testimonies of [MONINA] and [her]
witnesses xxx all bearing on [FRANCISCOs] acts and/or conduct indubitably showing
that he had continuously acknowledged [MONINA] as his illegitimate daughter have not
been succeessfully [sic] refuted. In fact, [FRANCISCO] himself, in his deposition, only
casually dismissed [MONINAs] exhaustive and detailed testimony as untrue, and with
respect to those given by [MONINAs] witnesses, he merely explained that he had fired
[them] from their employment. Needless to state, [FRANCISCOs] vague denial is
grossly inadequate to overcome the probative weight of [MONINAs] testimonial
evidence.
Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court xxx does
not hold sway in the face of [MONINAs] logical explanation that she at first did agree to
sign the affidavit which contained untruthful statements. In fact, she promptly
complained to [FRANCISCO] who, however explained to her that the affidavit was only
for the consumption of his spouse xxx. Further, the testimony of Jose Cruz concerning
the events that led to the execution of the affidavit xxx could not have been true, for as
pointed out by [MONINA], she signed the affidavit xxx almost five months after she had
resigned from the Miller, Cruz & Co. xxx

At any rate, if [MONINA] were not his illegitimate daughter, it would have been uncalled
for, if not absurd, for [FRANCISCO] or his lawyer to have secured [MONINAs] sworn
statement xxxOn the contrary, in asking [MONINA] to sign the said affidavit at the cost
of P15,000, [FRANCISCO] clearly betrayed his intention to conceal or suppress his
paternity of [MONINA]. xxx
In fine, We hold that [MONINAs] filiation as [FRANCISCOs] illegitimate daughter has
been conclusively established by the uncontroverted testimonies of Lope Amolar, Adela
Casabuena and Dominador Savariz to the effect that appellee himself had admitted his
paternity of the appellee, and also by the testimonies of appellant, Arsenio Duatin,
Romeo Bilbao, Rudy Tingson and Alfredo Baylosis unerringly demonstrating that by his
own conduct or overt acts like sending appellant to school, paying for her tuition fees,
school uniforms, books, board and lodging at the Colegio del Sagrado Corazon de
Jesus, defraying appellants hospitalization expenses, providing her with [a] monthly
allowance, paying for the funeral expenses of appellants mother, acknowledging
appellants paternal greetings and calling appellant his Hija or child, instructing his office
personnel to give appellants monthly allowance, recommending appellant for
employment at the Miller, Cruz & Co., allowing appellant to use his house in Bacolod
and paying for her long distance telephone calls, having appellant spend her vacation in
his apartment in Manila and also at his Forbes residence, allowing appellant to use his
surname in her scholastic and other records (Exhs Z, AA, AA-1 to AA-5, W & W-5),
appellee had continuously recognized appellant as his illegitimate daughter. Added to
these are the acts of [FRANCISCOs] relatives acknowledging or treating [MONINA] as
[FRANCISCOs] daughter (Exh U) or as their relative (Exhs T & V). On this point,
witness Zafiro Ledesma, former Mayor of Iloilo City, whose spouse belongs to the Lopez
clan just like [FRANCISCO], testified that [MONINA] has been considered by the
Lopezes as a relative. He identified pictures of the appellee in the company of the
Lopezes (Exhs X-16 & X-17). Another witness, Danthea H. Lopez, whose husband
Eusebio Lopez is appellees first cousin, testified that appellant was introduced to her by
appellees cousin, Remedios Lopez Franco, as the daughter of appellee Francisco
Jison, for which reason, she took her in as [a] secretary in the Merchants Financing
Corporation of which she was the manager, and further allowed her to stay with her
family free of board and lodging. Still on this aspect, Dominador Savariz declared that
sometime in February, 1966 appellees relative, Ms. Remedios Lopez Franco pointed to
appellant as the daughter of appellee Francisco Jison.
Finally, the Certifications of the Local Civil Registrar of Dingle (Exhs E and F) as well as
[MONINAs] Baptismal Certificates (Exhs C & D) which the trial ocurt admitted in
evidence as part of [MONINAs] testimony, may serve as circumstantial evidence to
further reinforce [MONINAs] claim that she is [FRANCISCOs] illegitimate daughter by
Esperanza Amolar.
True it is that a trial judges assessment of the credibility of witnesses is accorded great
respect on appeal. But the rule admits of certain exceptions. One such exception is
where the judge who rendered the judgment was not the one who heard the witnesses
testify. [citations omitted] The other is where the trial court had overlooked,

misunderstood or misappreciated some facts or circumstances of weight and substance

which, if properly considered, might affect the result of the case. [citations omitted] In
the present case, both exceptions obtain. All of [MONINAs] witnesses xxx whose
testimonies were not given credence did not testify before the judge who rendered the
disputed judgment. xxx
The Court of Appeals then decreed:
WHEREFORE, premises considered, the judgment of the trial court is SET ASIDE and
another one is hereby entered for appellant Monina Jison, declaring her as the
illegitimate daughter of appellee Francisco Jison, and entitled to all rights and privileges
granted by law.
Costs against appellee.
SO ORDERED.
His motion for reconsideration having been denied by the Court of Appeals in its
resolution of 29 March 1996,[18] FRANCISCO filed the instant petition. He urges us to
reverse the judgment of the Court of Appeals, alleging that said court committed errors
of law:
I.
IN REVERSING THE DECISION OF THE TRIAL COURT AND DECLARING
PRIVATE RESPONDENT AS THE ILLEGITIMATE CHILD OF PETITIONER,
CONSIDERING [THE] IMPOSSIBILITY OF SEXUAL CONTACT BETWEEN
THE PETITIONER AND THE PRIVATE RESPONDENT'S MOTHER AT THE
TIME CONCEPTION WAS SUPPOSED TO HAVE OCCURRED.
II.
IN REVERSING THE TRIAL COURTS FINDING CONSIDERING THAT
PRIVATE RESPONDENT'S TESTIMONIAL EVIDENCE OF PATERNITY
AND FILIATION IS NOT CLEAR AND CONVINCING.
III.
IN GIVING CREDENCE TO DOCUMENTARY EVIDENCE PRESENTED BY
THE PRIVATE RESPONDENT AS EVIDENCE OF FILIATION
CONSIDERING THAT THE SAME ARE HEARSAY, SELF-SERVING AND
CANNOT BIND THE PETITIONER UNDER THE BASIC RULES OF
EVIDENCE.
IV.
IN INTERPRETING THE PRIVATE RESPONDENT'S SWORN STATEMENT
(EXH. P/EXH. 2) IN A MANNER NOT IN CONSONANCE WITH THE
RULINGS OF THE HONORABLE SUPREME COURT.
V.

IN NOT CONSIDERING THE LONG AND UNEXPLAINED DELAY IN THE

FILING OF THE PRESENT PATERNITY SUIT AS EQUIVALENT TO
LACHES.
As regards the first error, FRANCISCO insists that taking into account the second
paragraph of MONINAs complaint wherein she claimed that he and Pansay had sexual
relations by about the end of 1945 or the start of 1946, it was physically impossible for
him and Pansay to have had sexual contact which resulted in MONINAs birth,
considering that:
The normal period of human pregnancy is nine (9) months. If as claimed by private
respondent in her complaint that her mother was impregnated by FRANCISCO at the
end of 1945 or the start of 1946, she would have been born sometime in late September
or early October and not August 6, 1946 xxx. The instant case finds factual and legal
parallels in Constantino vs. Mendez,[19] thus: xxx
FRANCISCO further claims that his testimony that Pansay was no longer employed
by him at the time in question was unrebutted, moreover, other men had access
to Pansay during the time of or even after her employment by him.
As to the second error, FRANCISCO submits that MONINAs testimonial evidence is
shaky, contradictory and unreliable, and proceeds to attack the credibility of her
witnesses by claiming, in the main, that: (a) Lope Amolar could not have
detected Pansays pregnancy in November 1945 when they met since she would have
been only one (1) month pregnant then; (b) Dominador Savariz did not in fact witness
the meeting between FRANCISCO, Pansay and MONINA; (c) Zafiro Ledesma had an
ulterior motive in testifying for MONINA as he owned a bank in Iloilo which was then
under Central Bank supervision and MONINA was the Bank Examiner assigned to Iloilo;
and (d) Danthea Lopez was not related to him by blood and whatever favorable
treatment MONINA received from Danthea was due to the formers employment at
Merchants Financing Company and additional services rendered at Kahirup Hotel;
besides, Danthea admitted that she had no personal knowledge as to the issue of
paternity and filiation of the contending parties, hence Sections 39 and 40 [20] of Rule 130
of the Rules of Court did not come into play. FRANCISCO likewise re-echoes the view
of the trial court as regards the testimonies of Adela Casabuena and Alfredo Baylosis.
FRANCISCO further asserts that MONINAs testimony that he answered for her
schooling was self-serving and uncorroborated by any receipt or other documentary
evidence; and assuming he did, such should be interpreted as a manifestation of
kindness shown towards the family of a former household helper.
Anent the treatment given by his relatives to MONINA as his daughter, FRANCISCO
points to the fact that Pansay was the former laundrywoman of Mrs. Franco; MONINA
resided with the families of Eusebio Lopez and Concha Cuaycong because she was in
their employ at Kahirup Hotel and Our Lady of Mercy Hospital, respectively; MONINA
failed to present Mrs. Franco, Eusebio Lopez and Mrs. Cuaycong; and MONINAs
employment at the accounting firm of Miller, Cruz & Co. was attributable to her
educational attainment, there being absolutely no evidence to prove that FRANCISCO

ever facilitated her employment thereat. Hence, in light of Baluyot v. Baluyot, [21] the
quantum of evidence to prove paternity by clear and convincing evidence, not merely a
preponderance thereof, was not met.
With respect to the third assigned error, FRANCISCO argues that the Court of
Appeals reliance on the certifications of the Local Civil Registrar (Exhs. E and F) and
Baptismal Certificates (Exhs. C and D) as circumstantial evidence is misplaced. First,
their genuineness could not be ascertained as the persons who issued them did not
testify. Second, in light ofReyes v. Court of Appeals,[22] the contents of the baptismal
certificates were hearsay, as the data was based only on what was told to the priest
who solemnized the baptism, who likewise was not presented as a witness. Additionally,
the name of the father appearing therein was Franque Jison, which was not
FRANCISCOs name. Third, in both Exhibits E and F, the names of the childs parents
were listed as Frank Heson and Esperanza Amador (not Amolar). FRANCISCO further
points out that in Exhibit F, the status of the child is listed as legitimate, while the fathers
occupation as laborer. Most importantly, there was no showing that FRANCISCO signed
Exhibits E and F or that he was the one who reported the childs birth to the Office of the
Local Civil Registrar. As to MONINAs educational records, FRANCISCO invokes Baas
v. Baas[23] which recognized that school records are prepared by school authorities, not
by putative parents, thus incompetent to prove paternity. And, as to the photographs
presented by MONINA, FRANCISCO cites Colorado v. Court of Appeals, [24] and further
asserts that MONINA did not present any of the persons with whom she is seen in the
pictures to testify thereon; besides these persons were, at best, mere second cousins of
FRANCISCO. He likewise assails the various notes and letters written by his relatives
(Exhs. S to V) as they were not identified by the authors. Finally, he stresses that
MONINA did not testify as to the telephone cards (Exhs. G to L) nor did these reveal the
circumstances surrounding the calls she made from his residence.
Anent the fourth assigned error, FRANCISCO contends that the Court of Appeals
interpretation of MONINAs affidavit of 21 September 1971 ran counter to Dequito v.
Llamas,[25] and overlooked that at the time of execution, MONINA was more than 25
years old and assisted by counsel.
As to the last assigned error, FRANCISCO bewails the Court of Appeals failure to
consider the long and unexplained delay in the filing of the case.
In her comment, MONINA forcefully refuted FRANCISCOs arguments, leading
FRANCISCO to file his reply thereto.
On 20 November 1996, we gave due course to this petition and required the parties
to submit their respective memoranda, which they subsequently did.
A painstaking review of the evidence and arguments fails to support petitioner.
Before addressing the merits of the controversy, we first dispose of preliminary
matters relating to the applicable law and the guiding principles in paternity suits. As to
the former, plainly, the Family Code of the Philippines (Executive Order No. 209)
governs the present controversy. As correctly cited by the Court of Appeals,
Uyguangco[26] served as a judicial confirmation of Article 256 of the Family
Code[27] regarding its retroactive effect unless there be impairment of vested rights,

which does not hold true here, it appearing that neither the putative parent nor the child
has passed away and the former having actually resisted the latters claim below.
Under Article 175 of the Family Code, illegitimate filiation, such as MONINA's, may
be established in the same way and on the same evidence as that of legitimate
children. Article 172 thereof provides the various forms of evidence by which legitimate
filiation is established, thus:
ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
This Article reproduces, with amendments, Articles 265, 266 and 267 of the Civil
Code.
For the success of an action to establish illegitimate filiation under the second
paragraph, which MONINA relies upon given that she has none of the evidence
mentioned in the first paragraph, a high standard of proof [28] is required. Specifically, to
prove open and continuous possession of the status of an illegitimate child, there must
be evidence of the manifestation of the permanent intention of the supposed father to
consider the child as his, by continuous and clear manifestations of parental affection
and care, which cannot be attributed to pure charity.Such acts must be of such a nature
that they reveal not only the conviction of paternity, but also the apparent desire to have
and treat the child as such in all relations in society and in life, not accidentally, but
continuously.[29]
By continuous is meant uninterrupted and consistent, but does not require any
particular length of time.[30]
The foregoing standard of proof required to establish ones filiation is founded on the
principle that an order for recognition and support may create an unwholesome
atmosphere or may be an irritant in the family or lives of the parties, so that it must be
issued only if paternity or filiation is established by clear and convincing evidence. [31]
The foregoing discussion, however, must be situated within the general rules on
evidence, in light of the burden of proof in civil cases, i.e., preponderance of evidence,
and the shifting of the burden of evidence in such cases. Simply put, he who alleges the
affirmative of the issue has the burden of proof, and upon the plaintiff in a civil case, the
burden of proof never parts.However, in the course of trial in a civil case, once plaintiff
makes out a prima facie case in his favor, the duty or the burden of evidence shifts to

defendant to controvert plaintiffs prima faciecase, otherwise, a verdict must be returned

in favor of plaintiff. Moreover, in civil cases, the party having the burden of proof must
produce a preponderance of evidence thereon, with plaintiff having to rely on the
strength of his own evidence and not upon the weakness of the defendants. The
concept of preponderance of evidence refers to evidence which is of greater weight, or
more convincing, that which is offered in opposition to it; at bottom, it means probability
of truth.[32]
With these in mind, we now proceed to resolve the merits of the instant controversy.
FRANCISCOs arguments in support of his first assigned error deserve scant
consideration. While it has been observed that unlawful intercourse will not be
presumed merely from proof of an opportunity for such indulgence, [33] this does not favor
FRANCISCO. Akin to the crime of rape where, in most instances, the only witnesses to
the felony are the participants in the sexual act themselves, in deciding paternity suits,
the issue of whether sexual intercourse actually occurred inevitably redounds to the
victims or mothers word, as against the accuseds or putative fathers protestations. In
the instant case, MONINAs mother could no longer testify as to the fact of intercourse,
as she had, unfortunately, passed away long before the institution of the complaint for
recognition. But this did not mean that MONINA could no longer prove her filiation. The
fact of her birth and her parentage may be established by evidence other than the
testimony of her mother. The paramount question then is whether MONINAs evidence is
coherent, logical and natural.[34]
The complaint stated that FRANCISCO had carnal knowledge of Pansay by about
the end of 1945. We agree with MONINA that this was broad enough to cover the fourth
quarter of said year, hence her birth on 6 August 1946 could still be attributed to sexual
relations between FRANCISCO and MONINAs mother. In any event, since it was
established that her mother was still in the employ of FRANCISCO at the time MONINA
was conceived as determined by the date of her birth, sexual contact between
FRANCISCO and MONINAs mother was not at all impossible, especially in light of the
overwhelming evidence, as hereafter shown, that FRANCISCO fathered MONINA, has
recognized her as his daughter and that MONINA has been enjoying the open and
continuous possession of the status as FRANCISCOs illegitimate daughter.
We readily conclude that the testimonial evidence offered by MONINA, woven by
her narration of circumstances and events that occurred through the years, concerning
her relationship with FRANCISCO, coupled with the testimonies of her witnesses,
overwhelmingly established the following facts:
1) FRANCISCO is MONINAs father and she was conceived at the time when her
mother was in the employ of the former;
2) FRANCISCO recognized MONINA as his child through his overt acts and
conduct which the Court of Appeals took pains to enumerate, thus:
[L]ike sending appellant to school, paying for her tuition fees, school uniforms,
books, board and lodging at the Colegio del Sagrado de Jesus, defraying

appellants hospitalization expenses, providing her with [a] monthly allowance,

paying for the funeral expenses of appellants mother, acknowledging appellants
paternal greetings and calling appellant his Hija or child, instructing his office
personnel to give appellants monthly allowance, recommending appellant for
employment at the Miller, Cruz & Co., allowing appellant to use his house in
Bacolod and paying for her long distance telephone calls, having appellant
spend her vacation in his apartment in Manila and also at his Forbes residence,
allowing appellant to use his surname in her scholastic and other records (Exhs
Z, AA, AA-1 to AA-5, W & W-5)
3) Such recognition has been consistently shown and manifested throughout the
years publicly,[35] spontaneously, continuously and in an uninterrupted manner.[36]
Accordingly, in light of the totality of the evidence on record, the second assigned
error must fail.
There is some merit, however, in the third assigned error against the probative
value of some of MONINAs documentary evidence.
MONINAs reliance on the certification issued by the Local Civil Registrar concerning
her birth (Exhs. E and F) is clearly misplaced. It is settled that a certificate of live birth
purportedly identifying the putative father is not competent evidence as to the issue of
paternity, when there is no showing that the putative father had a hand in the
preparation of said certificates, and the Local Civil Registrar is devoid of authority to
record the paternity of an illegitimate child upon the information of a third person.
[37]
Simply put, if the alleged father did not intervene in the birth certificate, e.g.,
supplying the information himself, the inscription of his name by the mother or doctor or
registrar is null and void; the mere certificate by the registrar without the signature of the
father is not proof of voluntary acknowledgment on the latters part. [38] In like manner,
FRANCISCOs lack of participation in the preparation of the baptismal certificates (Exhs.
C and D) and school records (Exhs. Z and AA) renders these documents incompetent to
prove paternity, the former being competent merely to prove the administration of the
sacrament of baptism on the date so specified. [39] However, despite the inadmissibility of
the school records per se to prove paternity, they may be admitted as part of MONINAs
testimony to corroborate her claim that FRANCISCO spent for her education.
We likewise disagree with the ruling of the Court of Appeals that the certificates
issued by the Local Civil Registrar and the baptismal certificates may be taken as
circumstantial evidence to prove MONINAs filiation. Since they are per se inadmissible
in evidence as proof of such filiation, they cannot be admitted indirectly as
circumstantial evidence to prove the same.
As to Exhibits S, T, U and V, the various notes and letters written by FRANCISCOs
relatives, namely Mike Alano, Emilio Jison, Mariquit Lopez and Fernando Lopez,
respectively, allegedly attesting to MONINAs filiation, while their due execution and
authenticity are not in issue,[40] as MONINA witnessed the authors signing the
documents, nevertheless, under Rule 130, Section 39, the contents of these documents
may not be admitted, there being no showing that the declarants-authors were dead or

unable to testify, neither was the relationship between the declarants and MONINA
shown by evidence other than the documents in question. [41] As to the admissibility of
these documents under Rule 130, Section 40, however, this requires further elaboration.
Rule 130, Section 40, provides:
Section 40. Family reputation or tradition regarding pedigree. -- The reputation or
tradition existing in a family previous to the controversy, in respect to the pedigree of
any one of its members, may be received in evidence if the witness testifying thereon be
also a member of the family, either by consanguinity or affinity. Entries in family bibles or
other family books or charts, engravings on rings, family portraits and the like, may be
received as evidence of pedigree. (underscoring supplied)
It is evident that this provision may be divided into two (2) parts: the portion
containing the first underscored clause which pertains to testimonial evidence, under
which the documents in question may not be admitted as the authors thereof did not
take the witness stand; and the section containing the second underscored
phrase. What must then be ascertained is whether Exhibits S to V, as private
documents, fall within the scope of the clause and the like as qualified by the preceding
phrase [e]ntries in family bibles or other family books or charts, engravings on rights
[and] family portraits.
We hold that the scope of the enumeration contained in the second portion of this
provision, in light of the rule of ejusdem generis, is limited to objects which are
commonly known as family possessions, or those articles which represent, in effect, a
familys joint statement of its belief as to the pedigree of a person. [42] These have been
described as objects openly exhibited and well known to the family, [43] or those which, if
preserved in a family, may be regarded as giving a family tradition. [44] Other examples of
these objects which are regarded as reflective of a familys reputation or tradition
regarding pedigree are inscriptions on tombstones, [45] monuments or coffin plates.[46]
Plainly then, Exhibits S to V, as private documents not constituting "family
possessions" as discussed above, may not be admitted on the basis of Rule 130,
Section 40. Neither may these exhibits be admitted on the basis of Rule 130, Section 41
regarding common reputation,[47] it having been observed that:
[T]he weight of authority appears to be in favor of the theory that it is the general
repute, the common reputation in the family, and not the common reputation in
community, that is a material element of evidence going to establish pedigree. xxx
[Thus] matters of pedigree may be proved by reputation in the family, and not by
reputation in the neighborhood or vicinity, except where the pedigree in question is
marriage which may be proved by common reputation in the community.[48]
Their inadmissibility notwithstanding, Exhibits S to V, inclusive, may, in like manner
as MONINA's school records, properly be admitted as part of her testimony to
strengthen her claim that, indeed, relatives of FRANCISCO recognized her as his
daughter.

We now direct our attention to MONINAs 21 September 1971 affidavit (Exh. P/Exh.
2), subject of the fourth assigned error, where she attests that FRANCISCO is not her
father.MONINA contends that she signed it under duress, i.e., she was jobless, had no
savings and needed the money to support herself and finish her studies. Moreover, she
signed Exhibit P upon the advice of Atty. Divinagracia that filiation could not be waived
and that FRANCISCOs ploy would boomerang upon him. On the other hand,
FRANCISCO asserts that full credence should be afforded Exhibit P as MONINA was
already 25 years old at the time of its execution and was advised by counsel; further,
being a notarized document, its genuineness and due execution could not be
questioned. He relies on the testimony of Jose Cruz, a partner at the accounting firm of
Miller & Cruz, who declared that he intervened in the matter as MONINA was spreading
rumors about her filiation within the firm, which might have had deleterious effects upon
the relationship between the firm and FRANCISCO.
On this issue, we find for MONINA and agree with the following observations of the
Court of Appeals:
Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court xxx does
not hold sway in the face of [MONINAs] logical explanation that she at first did agree to
sign the affidavit which contained untruthful statements. In fact, she promptly
complained to [FRANCISCO] who, however explained to her that the affidavit was only
for the consumption of his spouse xxx.
At any rate, if [MONINA] were not his illegitimate daughter, it would have been uncalled
for, if not absurd, for [FRANCISCO] or his lawyer to have secured [MONINAs] sworn
statement xxxOn the contrary, in asking [MONINA] to sign the said affidavit at the cost
of P15,000, [FRANCISCO] clearly betrayed his intention to conceal or suppress his
paternity of [MONINA]. xxx
Indeed, if MONINA were truly not FRANCISCOs illegitimate daughter, it would have
been unnecessary for him to have gone to such great lengths in order that MONINA
denounce her filiation. For as clearly established before the trial court and properly
appreciated by the Court of Appeals, MONINA had resigned from Miller & Cruz five (5)
months prior to the execution of the sworn statement in question, hence negating
FRANCISCOs theory of the need to quash rumors circulating within Miller & Cruz
regarding the identity of MONINAs father. Hence, coupled with the assessment of the
credibility of the testimonial evidence of the parties discussed above, it is evident that
the standard to contradict a notarial document, i.e., clear and convincing evidence and
more than merely preponderant,[49] has been met by MONINA.
Plainly then, the burden of evidence fully shifted to FRANCISCO.
Two (2) glaring points in FRANCISCOs defense beg to be addressed: First, that his
testimony was comprised of mere denials, rife with bare, unsubstantiated responses
such as That is not true, I do not believe that, or None that I know. In declining then to
lend credence to FRANCISCOs testimony, we resort to a guiding principle in adjudging
the credibility of a witness and the truthfulness of his statements, laid down as early as
1921:

The experience of courts and the general observation of humanity teach us that the
natural limitations of our inventive faculties are such that if a witness undertakes to
fabricate and deliver in court a false narrative containing numerous details, he is almost
certain to fall into fatal inconsistencies, to make statements which can be readily
refuted, or to expose in his demeanor the falsity of his message.
For this reason it will be found that perjurers usually confine themselves to the incidents
immediately related to the principal fact about which they testify, and when asked about
collateral facts by which their truthfulness could be tested, their answers not infrequently
take the stereotyped form of such expressions as I dont know or I dont remember. xxx [50]
Second, the reasons for the dismissals of Tingson, Baylosis and Savariz were
unspecified or likewise unsubstantiated, hence FRANCISCOs attempt to prove illmotive on their part to falsely testify in MONINAs favor may not succeed. As may be
gleaned, the only detail which FRANCISCO could furnish as to the circumstances
surrounding the dismissals of his former employees was that Baylosis allegedly took
advantage of his position while FRANCISCO was in the United States. But aside from
this bare claim, FRANCISCOs account is barren, hence unable to provide the basis for
a finding of bias against FRANCISCO on the part of his former employees.
As to FRANCISCOs other witnesses, nothing substantial could be obtained
either. Nonito Jalandoni avowed that he only came to know of MONINA in June 1988;
[51]
that during his employment at Nelly Garden from 1963 up to 1974, he did not recall
ever having seen MONINA there, neither did he know of any instructions from
FRANCISCO nor Mr. Lagarto (FRANCISCOs office manager before passing away)
regarding the disbursement of MONINAs allowance. [52] Teodoro Zulla corroborated
Jalandonis testimony regarding not having seen MONINA at Nelly Garden and
MONINAs allowance; declared that Alfredo Baylosis was dismissed due to
discrepancies discovered after an audit, without any further elaboration, however;but
admitted that he never prepared the vouchers pertaining to FRANCISCOs personal
expenses, merely those intended for one of FRANCISCOs haciendas. [53] Then, Iigo
Superticioso confirmed that according to the report of a certain Mr. Atienza, Baylosis
was dismissed by Mr. Jison for irregularities, while Superticioso was informed by
FRANCISCO that Tingson was dismissed for loss of confidence. Superticioso likewise
denied that MONINA received money from FRANCISCOs office, neither was there a
standing order from FRANCISCO to release funds to her.[54]
It is at once obvious that the testimonies of these witnesses for FRANCISCO are
likewise insufficient to overcome MONINAs evidence. The former merely consist of
denials as regards the latters having gone to Nelly Garden or having received her
allowance from FRANCISCOs office, which, being in the form of negative testimony,
necessarily stand infirm as against positive testimony; [55] bare assertions as regards the
dismissal of Baylosis; ignorance of FRANCISCOs personal expenses incapable of
evincing that FRANCISCO did not provide MONINA with an allowance; or hearsay
evidence as regards the cause for the dismissals of Baylosis and Tingson. But what
then serves as the coup de grce is that despite Superticiosos claim that he did not know
MONINA,[56] when confronted with Exhibit H, a telephone toll ticket indicating that on 18

May 1971, MONINA called a certain Eing at FRANCISCOs office, Superticioso admitted
that his nickname was Iing and that there was no other person named Iing in
FRANCISCOs office.[57]
All told, MONINAs evidence hurdled the high standard of proof required for the
success of an action to establish ones illegitimate filiation when relying upon the
provisions regarding open and continuous possession or any other means allowed by
the Rules of Court and special laws; moreover, MONINA proved her filiation by more
than mere preponderance of evidence.
The last assigned error concerning laches likewise fails to convince. The essential
elements of laches are: (1) conduct on the part of the defendant, or of one under whom
he claims, giving rise to the situation of which the complaint seeks a remedy; (2) delay
in asserting the complainants rights, the complainant having had knowledge or notice of
the defendants conduct as having been afforded an opportunity to institute a suit; (3)
lack of knowledge or notice on the part of the defendant that the complaint would assert
the right in which he bases his suit; and (4) injury or prejudice to the defendant in the
event relief is accorded to the complainant, or the suit is not held barred. [58] The last
element is the origin of the doctrine that stale demands apply only where by reason of
the lapse of time it would be inequitable to allow a party to enforce his legal rights. [59]
As FRANCISCO set up laches as an affirmative defense, it was incumbent upon
him to prove the existence of its elements. However, he only succeeded in showing
MONINAs delay in asserting her claim, but miserably failed to prove the last element. In
any event, it must be stressed that laches is based upon grounds of public policy which
requires, for the peace of society, the discouragement of stale claims, and is principally
a question of the inequity or unfairness of permitting a right or claim to be enforced or
asserted. There is no absolute rule as to what constitutes laches; each case is to be
determined according to its particular circumstances. The question of laches is
addressed to the sound discretion of the court, and since it is an equitable doctrine, its
application is controlled by equitable considerations. It cannot be worked to defeat
justice or to perpetuate fraud and injustice. [60] Since the instant case involves paternity
and filiation, even if illegitimate, MONINA filed her action well within the period granted
her by a positive provision of law. A denial then of her action on ground of laches would
clearly be inequitable and unjust.
WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DENIED and
the challenged decision of the Court of Appeals of 27 April 1995 in CA-G.R. CV No.
32860 is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Republic
SUPREME
Manila
EN BANC

of

the

Philippines
COURT

G.R. No. L-12993

October 28, 1918

RAFAEL
J.
FERRER,
ET
vs.
JOAQUIN J. DE INCHAUSTI, ET AL., defendants-appellees.
Vicente
Sotto
Araneta & Zaragoza and Cohn & Fisher

for

AL., plaintiff-appellants,

appellants.

TORRES, J.:
This appeal was taken through bill of exceptions by counsel for the plaintiffs from the
judgment of February 12, 1917, whereby the judge of the Court of First Instance held
that Rosa Viademonte, mother of the plaintiffs, could not have been legitimate daughter
of the deceased Isabel Gonzalez, who, on her death, left some legitimate children. The
court did not deem it necessary to discuss whether the said Rosa Viademonte could be
a daughter of the said Isabel Gonzalez for reason, given in his decision, and held that
the plaintiffs should not be entitled to what they have demanded, and that they should
pay the costs.
Under date of May 12, 1916, the attorney of Rafael J. Ferrer y Viademonte and Maria
Angelina Ferrer y Viademonte with her husband Ricardo Hernandez y Aracil filed a
complaint in the Court of First Instance of the city of Manila, praying for the rendition of
a final judgment declaring that Rosa Matilde Viademonte y Gonzalez had the right to
succeed to the inheritance left by Isabel Gonzalez in the same proportion and capacity
as the other four children of the latter, namely, Ramon Viademonte, Rafael C. de
Inchausti, Joaquin C. de Inchausti, and Clotilde de Inchausti de Vidal; that the plaintiffs
Rafael and Maria Angelina Ferrer are the only and legitimate heirs of the deceased
Rosa Viademonte and the only ones entitled to receive her share of the inheritance left
by Isabel Gonzalez, that is, the on-fifth part of the latter's estate; that the defendants
render to the plaintiffs an account of the fruits and administration of all the property from
the moment the said community of property from the moment the said community of
property was constituted among them, and to deliver to the plaintiffs that part which
corresponds to them in their capacity as sole heirs of Rosa Viademonte y Gonzalez,
that is, the one-fifth part of the inheritance with all its accession, fruits, and interests;
and , finally, that the defendants pay the costs. In fact, it is alleged that the plaintiffs are
the legitimate children of Rosa Matilde Viademonte , who in turn died on November 20,
1898, leaving the two plaintiffs as surviving legitimate children that the said Isabel
Gonzalez was married, first to Ramon Martinez Viademonte, and from his marriage two
children, named Roman and Rosa Matilde, and surnamed Viademonte y Gonzalez
survived; that after the death of her husband Ramon Martinez Viademonte, Sr., the

widow, Isabel Gonzalez, contracted a second marriage with Don Jose Joaquin de
Inchausti with whom she had three children named Clotilde, Rafael and Joaquin, all
surnamed Inchausti y Gonzalez, that Ramon Viademonte y Gonzalez Jr., died on
January 1, 1905, without leaving any forced heir, and by a will dated May 216, 1900, he
left his property to the son or sons which Rafael C. de Inchausti might have, and in
default or such child or children, to the same Rafael C. de Inchausti, by a will, left as his
heirs and successors in interest his legitimate son Jose R. de Inchausti, his recognized
natural daughter Maria Consolacion de Inchausti de Ortigas, and his widow Maria
Consolacion Rico y Medina; that on her death, Isabel Gonzalez left a certain property in
her marriage with Jose de Joaquin de Inchausti, which would amount approximately to
P1,000,000 with its accessions, according to present valuation, as shown by the
inventory of said property which makes up Exhibit A, that on January 14, 188, Jose
Joaquin Inchausti y Gonzalez and Clotilde de Inchausti y Gonzalez de Vidal, each of
whom received on-fourth of the estate left by the deceased Isabel Gonzalez, excluding
therefrom Rosa Viademonte, the mother of the plaintiffs., notwithstanding the fact that
she had an equal rights to inherit from Isabel Gonzalez; that since January 188 till his
death, Ramon Viademonte, Jr. had been the possessor and administrator of the fourth
part of the inheritance which he received from his deceased mother Isabel Gonzalez
which portion of the property later came to the possession and control of Rafael C. de
Inchausti, and on the death of the latter, this fourth part of the inheritance came to the
possession of Maria Consolacion Rico de Inchausti, widow of said Rafael C. de
Inchausti, in her capacity as guardian of her son Jose Rafael de Inchausti, and part of it,
to the possession of Maric Consolacion de Inchausti de Ortigas; and that a great part of
the property which the defendants actual possess, came from the young children, who
received from Isabel Gonzalez with the earnings and accessions thereof; these children
have been possessing it pro indiviso or in coownership, in their lifetime, with Rosa
Viademonte while living, and upon the death of the latter, with her heirs, but that, in spite
of the demands made by the plaintiffs for the delivery to them by the defendants of their
corresponding share in the inheritance the latter have always refused to do so.
In his answers, for Clotilde Inchausti de Vial admitted that the plaintiffs are the children
of Rosa viademonte and Benigno Ferrer; that Isabel Gonzalez was married first o
Ramon Martinez de Viademonte, and afterwards to Jose Joaquin de Inchausti; that on
the death of her mother Isabel Gonzalez, on December 13, 1886, her share in the
conjugal partnership amounted to P191, 248.81, and on January 14, 1888, Jose
Joaquin de Inchausti, as executor of his wife, after paying the legacies mentioned in the
testament, paid to this defendant in cash the sum of P46,295.70 as her hereditary
portion in the liquidated property of her mother, and likewise delivered to the other three
sons of said Isabel Gonzalez similar amounts; that, after receiving her share of the
inheritance from her mother, she spent it all, and she no longer has any part of it, nor
has she left any portion of it during the last thirty years, and that neither the plaintiffs nor
their deceased mother had ever possessed or enjoyed the said sum; and denies
generally all the allegations of the complaint which are not admitted, and denies

specially the allegation that the mother of the plaintiffs had ever married with their father
Benigno Ferre, that they and their mother ever had the surname of Viademonte or
Viademonte y Gonzalez and that the mother of the plaintiffs was a daughter of Isabel
Gonzalez.
As a special defense, she alleged that her possession of the money derived from the
inheritance of her mother had been public, adverse, pacific, continuous and under a
claim of ownership, in good faith and with just title, since January 14, 1888; that never
during the lifetime of the plaintiff's mother did she make any claim or assert any right in
the amount received by this defendant form the inheritance of her deceased mother;
that more than thirty years had elapsed since she received by this defendant inheritance
of her deceased mother; and that the action for the plaintiffs has already prescribed in
accordance with the provisions of article 1955 of the Civil Code and section 38 of the
Code of Civil Procedure they (the plaintiffs) and their mother ever had the surname of
"Viademonte" or Viademonte y Gonzalez," and that the mother of the plaintiffs was a
daughter of Isabel Gonzalez.
As a special defense, she alleged that her possession of the money derived from the
inheritance of her mother had been public, adverse, pacific, continuous, and under a
claim of ownership, in good faith and with just title, since January 14, 1888; that never
during the lifetime of the plaintiffs' mother did she (plaintiff's mother) make any claim or
assert any right in the amount received by this defendant from the inheritance of her
deceased mother; that more than thirty years had elapsed since she received said
amount to the date of the presentation of the complaint; and that the action of the
plaintiff has already prescribed in accordance with the provisions of article 1955 of the
Civil Code and section 38 of the Code of Civil procedure.
Counsel for Maria de la Consolacion de Inchausti, in turn, set up a special defense
similar to that of Clotilde, and alleged that Ramon Martinez Viademonte, son of Isabel
Gonzalez, died in the city of Manila on January 1, 1905, without leaving any heirs, and
bequeathed by will to his brother Rafael C. de Inchausti, father of this defendant, all of
his property, with the exception of some property of little importance which he had
bequeathed to others; but denied that any part of his (Ramon Maritnez Viademonte's)
property thas ever been bequeathed to the children of said Rafael C. de Inchausti; that,
on the death of said Ramon Martinez de Viademonte, his will was allowed to probate in
the Court of First Instance of Manila, and all his remaining property delivered to Rafael
C. de Inchausti with Martinez Viademonte's property received by her father Rafael C. de
Inchausti was a small piece of land situated in Santa Ana and known by the name of
Hacienda de Lamayan; that the title of Rafael C. De Inchausti to said land was
registered by virtue of a decree of the Court of Land Registration, in accordance with
the provisions of the Land Registration Ac; that said land was in turn inherited by this
defendant from her father upon the death of the latter, and that she appears in the
registry of property as owner of the same; that, upon the allowance of said will in the

Court of First Instance of this city, the plaintiffs did not present any claim to the
commissioners appointed to appraise the property, and that the period allowed for the
presentation of such claims expired on October 20, 1914, and that, therefor, the action
now filed by the plaintiffs has prescribed, in accordance with the provisions of section
695 of the Code of Civil Procedure. In similar terms, counsel for Joaquin C. de Inchausti
worded his defense in a written answer as amended under date of September 19,
1916.1awph!l.net
Counsel for Maria de la Consolacion Rico y Medina in her personal capacity an das a
widow of Rafael Inchausti and also as guardian of her son Jose Rafael de Inchausti y
Rico, in his answer to the foregoing complaint, admits that Ramon Martinez and Isabel
Gonzalez Ferrer, both now deceased, were in their lifetime husband and wife, and were
survived by a child named Ramon Martinez Viademonte y Gonzalez, but denied that the
said Rosa Matilde was a daughter of that marriage or of any of the said spouses; he
also admits that the deceased Ramon Martinez Viademonte, Jr., died in this city on
January 1, 1905, without leaving any forced heir, and by a will dated May 16, 1900, he
left to his maternal brother Rafael C. de Inchausti husband of this defendant, all his
property with the exception of some small legacies, denying at the same time that any
portion of the inheritance of said Ramon Viademonte, Jr., had been left to the children of
the defendant's husband; that Isabel Gonzalez Ferrer, the mother of her husband, who
died on December 13, 1886, executed a will on April 29 of the said year, wherein she
declared that she had a son with her first husband Ramon Martinez Viademonte, and
the name of said on son was also Ramon, and that with her second husband Jose
Joaquin de Inchausti. She Counsel for Maria de la Consolacion Rico y Medina in her
personal capacity and a widow of Rafael Inchausti and also as guardian of her son Jose
Rafael de Inchausti y Rico, in his answer to the foregoing complaint, admits that Ramon
Martinez and Isabel Gonzalez Ferre, both now deceased were in their lifetime husband
and wife, and were survived by a child named Ramon Martinez Viademonte y Gonzalez
but denied that the said Rosa Matilde was a daughter of that marriage or of any of the
said spouses; he also admits that the deceased Ramon Martinez Viademonte, Jr., died
in this city on January 1905, without leaving any forced heir, and by a will dated May
165, 1900, he left to his maternal brother Rafael C. de Inchausti, husband of this
defendant, all his property with the exception of some small legacies, denying at the
same time that any portion of the inheritance of said Ramon Viademonte, Jr., had been
left to the children of the defendant's husband, who died on December 13, 1886,
executed a will on April 29 of the said year, wherein she declared that she had some
with her first husband Ramon Martinez Viademonte and the name of said son was also
Ramon, and that with her second husband Jose Joaquin de Inchausti, she had three
children, and he instituted the said four children as the sole and universal heirs to the
remainder of her property in equal parts, her property being the one half of the conjugal
property had during her marriage with her second husband Inchausti who had survived
her; that no portion of the inheritance from the deceased Isabel Gonzalez y Ferrer was
adjudicated to the mother of the plaintiffs; that the deceased Rafael C. de Inchausti

inherited from the said Ramon Martinez Viademonte, Jr., a parcel of land known by the
name of Hacienda de Lamayan, registered in the name of the deceased Rafael de
Inchausti, which property was, in turn, inherited by the defendant Maria Consolacion de
Inchausti de Ortigas. As a special defense, she alleged that in the said will wherein the
testatrix Isabel Gonzalez name d her sole and universal heirs, Rosa Matilde, the mother
of the plaintiffs, was not designated a heiress or legatee, but on the contrary, was
omitted therefrom, that from the death of the testratrix of this compliant neither Rosa
Matilde nor the plaintiffs presented any claim whatsoever against the omission of Rosa
Matilde from the will of said Isabel Gonzalez for the plaintiffs could have availed
themselves of any right which Rosa Matilde could have had in the property inherited by
the defendant and her son Jose Rafael de Inchausti, derived by law for contesting the
will of Isabel Gonzalez on the ground of prejudicial omission therefrom of Rosa Matilde
expired long before the date on which this compliant was filed; and consequently, said
action has prescribed; that, after the death of Ramon Viademonte, Jr., in February 1905,
probate proceedings were had in the Court of First Instance of Manila, an administrator
of the decedent's estate was appointed, on July 21 of said year the commissioners to
appraise the estate of the deceased were appointed, and after the lapse of the period
fixed for allowing claims against the state, the property of the deceased was adjudicated
to his heir Rafael C. de Inchausti and to the legatees, the plaintiffs not having presented
to the commissioners, any claim against the estate of said deceased has thus
prescribed by the lapse of the period for its presentation, that after the death of Rafael
C. de Inchausti, on October 5, 1913, probate proceedings were had regarding his will in
the Court of First Instance of the city, an executor was appointed, as well as the
commissioners to appraise the estate, and the period within which claims against he
estate might be received has expired, and the plaitniffs have not presented any claim
whatsoever against he estate of said Rafael C. de Inchausti, and finally, she alleged that
he period fixed by law for presenting claims against he estate of said Rafael C. de
Inchausti expired long before the date of the filing of this complaint, and consequently,
the action to assert the claim has already prescribed, and that therefore the defendant
should be absolved from the complaint with the costs against the plaintiffs.
Counsel for the plaintiffs, in his written reply amending his replies of September 20 and
21, 1916, denied generally and specifically each and all of the new facts alleged in the
answers of the defendants, and added that the will of Isabel Gonzalez, dated October
12, 1886, is null and void, inasmuch as Rosa Viademonte Gonzalez and having equal
rights as her other children; that he defendants are estopped form denying that the
surname of Rosa Matilde was a daughter of Isabel Gonzalez with Ramon Martinez
Viademonte; that the plaintiffs are legitimate children of said Rosa Matilde with Benigno
Ferre inasmuch as both their predecessors in interest as well as the present defendants
have previously made declarations and formal affirmations, written and oral, recognizing
that the surname of Rosa Matilde was Viademonte y Gonzalez, that the same was
legitimate daughter of Isabel Gonzalez and Ramon Martinez Viademonte and that the
plaintiffs are legitimate children of Rosa Viademonte y Gonzalez with Benigno Ferrer.

The trial having been held and the evidence of both parties adduced, the trial judge, on
February 12, 1917, rendered a judgment declaring that the plaintiffs receive nothing in
this action and pay the costs. To this decision the plaintiffs excepted and moved for a
new trial, which motion was denied by order of the court on the 27th day of the same
month and year. An exception was taken to the order denying the motion for a new trial,
and the corresponding bill of exception was presented, approved, certified, and
forwarded to the office of the clerk of this court.
The parties are agreed as regard the allegations that the plaintiffs Rafael J. Ferrer and
Maria Angelina Ferrer are children of the deceased Rosa Matilde Viademonte, although
the defendants deny that they (plaintiffs) were legitimate children of their mother
contrary to the affirmation of the plaintiffs to this effect. The evidence of record
concerning this point is of such a character that it is difficult to deduce therefrom a
certain and definite conclusion, because, while it appears that Rosa Matilde Viademonte
has, on various occasions, stated that she was unmarried and never contracted a
marriage, she has made entirely different statements on other occassions. In the
proceedings (Exhibit 8) instituted by the said Rosa Matilde against Rafael C. de
Inchausti, it was disclosed that she had never been married and that if her children with
Benigno Ferrer were baptized as legitimate children, it was so done in order to conceal
her dishonor, such statement being found in a document drawn in 1892 and signed by
her (Exhibit 8, pp. 3-4). On page 159 of the records of the said proceedings (Exhibit 8) it
appears that said Rosa Matilde stated under oath before a judge, on January 21. 1893,
that she had never married, and the same declaration was made by her on April 15th of
the same year in another case. (Exhibit 7, pp. 17-26.)
In a document found on page 166 of said Exhibit 8, executed in 1890, Rosa Matilde
stated that she was a widow; but, in a document executed in 1893, found on page 257
of Exhibit 8, and in a document (Exhibit 1, page 136 of the first document executed in
1894) she made the statement that she was unmarried. Rosa Matilde might have made
these contradictions due perhaps to her extreme poverty, which had prompted her to tell
a lie before the courts of justice, with the sole purpose of recovering the amount claimed
by her as her legacy, while, on the hand, it is undeniable that she could not duly justify
the marriage contracted by her with Benigno Ferrer.
Even if the plaintiffs be considered as legitimate children of Rosa Matilde, Viademonte
in her marriage with Benigno Ferrer, still this action filed by them will not prosper,
inasmuch as the evidence adduced at the trial to prove the origin of the cause of action
referred to shows, in a manner which leaves no room for doubt that Rosa Matilde was
not a legitimate daughter of Isabel Gonzalez, and it follows that her children as well as
her privies have no right to a part of the hereditary property of said Isabel Gonzalez.
Counsel for plaintiffs pretend to establish that Rosa Matilde Viademonte had been
treated and considered as a daughter by Isabel Gonzalez, and as a sister the children

of the latter; that, on one occasion, said Gonzalez remarked that the father of Rosa
Matilde was Ramon Martinez de Viademonte; that Joaquin Matilde in the following
manner: "To my dear and unforgettable sister Rosa." that when Rosa Matilde entered
the College de la Compania de Jesus, her name as recorded in the registry of that
college was Rosa Matilde Viademonte, and her expenses were defrayed by Rafael de
Inchausti and in the same registry said Rafael de Inchausti appears as brother of Rosa;
that when Rosa entered the Colegio de Santa Isabel, she used the same name and
surname; that Ramon Martinez de Viademonte, Jr., presented Rosa Matilde also sister,
saying that the father of the same was also his father named Ramon Martinez de
Viademonte, while Rosa Matilde has always been known by the same name and
surname during the time she was studying in the Colegio de Luisa Oda de Birgi; that
Clotilde de Inchausti called Rosa Matilde her sister in her letters to Rafael Ripol, and
that Joaquin de Inchausti himself in the codicil of his testament designates Rosa Matilde
with the surname of Viademonte.
From all the evidence adduced, the slightest indication cannot be inferred that Rosa
Matilde was born during the marriage of Ramon Martinez de Viademonte, Sr., with
Isabel Gonzalez or within the 300 days after the dissolution of their marriage by the
death of the husband, nor has the said Ramon Martinez de Viademonte, Sr., in his
lifetime recognized said Rosa Matilde as his daughter. If Rosa Matilde is a legitimate
daughter of Isabel Gonzalez, it follows that she was also a daughter of Isabel's
husband, Ramon Martinez de Viademonte, under the assumption that she was born in
the marriage of both or at a time prior or subsequent to that of the celebration of the
marriage, as fixed by law. (Arts. 119, 120, 121, and 122 of the Civil Code.)
Legitimate filiation presupposes the existence of marriage contracted by the presumed
parents in accordance with law, and therefore a person can not be declared to be a
legitimate daughter of her mother, without presuming at the same time that she was
born in the marriage of this mother with the presumed father, who, in his lifetime, and
without his consent, could not have been considered as father of a child that was not
conceived by his own wife, because the mere fact of having used his surname after his
death, without his assent or consent, does not constitute a proof of filiation of parternity.
In this decision it is to be determined whether Rosa Matilde was born in the lifetime of
Ramon Martinez de viademonte to decide on the truth of the assertion made by the
plaintiffs that their predecessor in interest was a legitimate daughter of the said spouses
Viademonte and Gonzalez.
At the trial, the death certificate of Ramon Martinez de Viademonte, first husband of
Isabel Gonzalez, was not presented in evidence; but it is uncontroverted that he died on
September 30, 1836; as corroborated by the accountant of the naval division of Puerto
Galkera in charge of the Leiutenant of the Spanish Navy, Jose Atienza, saying that the
Lieutenant, who had the rank of captain in the navy, Ramon Viademonte, died on

September 30, 1836, as appears in the list of officers found in the payroll under his
custody, having paid till the date of the death of said Viademonte all his salaries
corresponding to him as such officer, and further saying that, by request of the widow of
the deceased, he issued the proper certificate on December 31, 1836.
So certain is the death of said Ramon Martinez de Viademonte that his widow Isabel
Gonzalez on January 31, 1837, applied to the Government for a pension sufficient to
cover her widowhood expenses, alleging that she was a widow with children of the
deceased. The application was made in a paper stamped as of the years 1836 and
1837, a fact which proves the authenticity of the document written in a stamped paper,
and the presentation of said application by the widow demonstrates the fact that her
husband really died, wherefore she asked for a pension, because she would have been
held responsible if, in truth and in fact, her husband had been living and not dead as
she claimed.
The said documents, as constituting a supplementary proof of the death of the
deceased Ramon Martinez, de Viademonte, appear to be corroborated by an entry in a
notebook belonging to Ramon Viademonte, Jr. wherein it is stated that his mother was
married in 1833 to Ramon Martinez de Viademonte who died on September 30, 1836,
at the age of 33 years, being then a major in the naval division assigned at Puerto
Galera, Mindoro.
Notwithstanding the fact that the death certificate of said Ramon Martinez de
Viademonte, first husband of Isabel Gonzalez was not presented in evidence, still the
documentary and circumstantial evidence of record, especially the fact of the marriage
of his widow Isabel Gonzalez with Jose Joaquin de Inchausti, some years after the
death of Viademonte died before that marriage or on September 30. 1836. If this be
true, let us see on what day Rosa Matilde was born,, and in this way it will be shown
that she did not have the status of a legitimate child of those spouses, even after the
dissolution of their marriage by the death of the husband.
It appears in the certificate that on September 1, 1852, a child three days old, born of
unknown parents, was baptized in the Cathedral Church of this city, and given the name
of Rosa Matilde Robles. In view of the fact that the plaintiffs have not shown that such
baptismal certificate was not that of their mother Rosa Matilde, it remains proven
therefore that said certificate was presented as exhibit by Rafael C. de Inchausti in a
case concerning the delivery of a legacy instituted against Rosa Matilde, who, instead of
denying that such a baptismal certificate referred to her, admitted that such certificate
might have been hers.
On Page 9 of the day-book which Ramon Martinez de Viademonte, Jr., kept during his
lifetime, appears a memorandum which says: On September 1, 1862, seven o'clock in
the evening a children three days old named Rosa Matilde Robles, according to the

baptismal certificate issued by the acting rector Don Ramon Fernandez of the Cathedral
Church of Manila, was delivered to my mother; this child was baptized by the priest Don
Remegio Rodriguez with the authority of said rector, and according to the baptismal
certificate, it was a child of unknown parents." This memorandum agrees with the
above-mentioned baptismal certificate of Rosa Matilde Robles.
Notwithstanding the argument of counsel for the appellants Joaquin de Inchausti stated
that one day he was assured by his half-brother Ramon Martinez Viademonte that Rosa
Matilde was not his sister, but that she was only a mere protegee and that her true
name was Rosa Matilde Robles, and that on that occasion the said brother showed him
the certificate of birth of which Exhibit 6 is a copy, which he took from the parochial
church.
In view of the fact that Ramon Martinez Viademonte is now dead, the testimony of
Joaquin Jose de Inchausti referring to the said deceased is admissible, for they are
members of the same family, in accordance with the provisions of section 281 of Act No.
190, and consequently, the conclusion is that Rosa Matilde is the same Rosa Matilde
Robels which is mentioned in Exhibit 6 and because she was born in 1852, in no
manner could her be legitimate daughter of Ramon Viademonte and Isabel Gonzalez
whose marriage was dissolved in 18365 by the death of the husband. Moreover, the
witness Pilar Abarca presented by the plaintiffs testified that she had known Rosa
Matilde in the Colegio de Santa Isabel in 1863, she being then 20 years old and Rosa, 9
years. If the witness Abarca was 73 years old on the date of giving this testimony in
1916, it follows that Rosa Matilde was born in 1854, and that therefore she could not be
a daughter of Ramon Martinez de Viademonte who died in 1836.
Notwithstanding the attempt of the plaintiffs to impugn the testimony of said witness,
said testimony is admissible according to section 263 of the Code of civil Procedure
which provides the when part of an act, declaration conservation, or writing is given in
evidence by one party, the whole of the same subject may be inquired into by the other.
It is true that the said witness was not presented to prove that the date of Rosa Matildes
birth but the fact is that the age of the child is 9 years old as well as that of a youth 19 or
22 years of age can be known from the appearance of the child, and even if, in fixing
the age of Rosa Matilde, as mistake has been made, said mistake could not be such as
to reduce her true age by 10 years; but even then and even supposing still that Rosa
Matilde was 20 years old in 1863, the fact remains that she must have been born in
1843, and so she could not have been a daughter of Ramon Martinez de Viademonte,
Sr. that the age of a child 9 years old as well as that of a youth 19 or 22 years of age
can be known from the appearance of the child, and even if, in fixing the age of Rosa
Matilde, a mistake has been made, said mistake could not be such as to reduce her true
age by 10 years; but even then and even supposing still that Rosa Matilde was 20 years
old in 1863, the fact remains that she must have been born in 1843, and so could not
have been a daugther of Ramon Martinez de Viademonte, Sr.

Juan Ferrer, another witness for the plaintiffs, testified that Benigno Ferrer and Rosa
Matilde married in 1872, that Rosa Matilde must have been then between 22 and 30
years of age. It is inferred from this testimony that, if Rosa Matilde could no be over 30
years old in 1872, she could not have been born before 1842, and much less in 1836 or
1837.
The document No. 663, page 257 of Exhibit 8, appears to have been executed by Rosa
Matilde in 1893, wherein she declared to the notary public before whom the document
was executed that she was then 39 years of age. If she was 39 years old in 1893, she
could not have been born in 1854 and much less in 1836 and 1837.
In Exhibit 1, page 135, which is a certified copy of a discharge in full executed by Rosa
Matilde in 1894 in favor of Joaquin Jose de Inchausti, it is said that the maker of the
deed was 40 years old, thus corroborating ina convincing manner what has been stated
regarding this point in the preceding document.
In view of the objection and arguments made by counsel for the plaintiffs against the
admission of the aforementioned documents, it becomes necessary to say in this
connection that it is undeniable that Rosa Matilde, in executing said two documents,
gave as her age those appearing therein, and that there was no reason for the belief
that she told a lie and tried to conceal her true age; but, even admitting that we had
made a mistake by telling that she was older or younger than she really was, such a
mistake could not have given a difference of 10 years from her true age, inasmuch as
she was an educated person, and it is not possible to believe that, through ignorance,
she gave an age difference from her true anger; and, even if 10 years be added to the
age given by Rosa Matilde in the documents referred to, still the fact remains that in
1894 she must have been only 50 years old and that she must have been born in 1844.
It is undisputed that Roa Matilde was born 16 years after the death of Ramon
Viademonte, and therefor could not be a daughter of the latter.
Counsel for plaintiffs objected to the admission in evidence of the day-book kept by
Ramon Martinez Viademonte, Jr., during his lifetime, alleging that it has not been
proven that the entries in said book were made at the same time that those events
occurred; that the witness who identified it did not see Ramon Martinez de Viademonte,
Jr., in the act of making the said entries, and that, even if it were so, still the writing
contained in the book, being a mere memorandum of an interested party, can not be
admitted at the trial.
The above objection can be met and disposed of by the provisions of section 298, No.
13 of the Code of Civil Procedure, which provides that evidence may be given upon trial
of monuments and inscriptions in public places as evidence of common reputation; and
entries in family Bibles or other family books or charts; engravings on rings, family
portraits and the like, as evidence of pedigree.

The law does not require that the entries in the said booklet be made at the same time
as the occurrence of those events; hence, the written memorandum in the same is not
subject to the defect attributed to it, The witness Joaquin Jose de Inchausti declared
affirmatively that the memorandum under consideration has been written in the
handwriting of his brother Ramon Martinez de Viademonte, whose handwriting he was
familiar with, and the testimony of this witness contains some reference to a member of
the family, now dead, and concerning the family genealogy of the same.
It remains now to be decided whether Rosa Matilde Viademonte was a natural daughter
of the deceased Isabel Gonzalez or was a mere protegee cared for and maintained in
the house of said Isabel Gonzalez, and, if in the first case, the plaintiffs have the right to
succeed ab intestato to a part of the inheritance of Isabel Gonzalez in representation of
their mother Rosa Matilde Viaddemante or Robles.
The record does not furnish satisfactory proof that Rosa Matilde was a daugther or at
least a natural daughter of Isabel Gonzalez; on the other hand, it is shown in the
records of the case that she was a protegee in the house of said Isabel, for, in a
conciliation proceeding had on April 15, 1893, between Rosa Matilde and Joaquin F. de
Inchausti, it appears in the record thereof that, although in some of the documents
presented to justify the accounts, Rosa Matilde called Rafael de Inchausti her brother,
this manner of calling him was due to the intimacy in which both have been brought up
from childhood in the same house, she being a mere protegee of the latter's parents,
and of because they were really brother and sister.
This statement made by Inchausti in the presence of Rosa Matilde Viademonte did not
bring about a protest or objection on the part of Rosa Matilde herself or her attorney. In
addition to this fact, Rafael C. De Inchausti stated under oath that it is not true that Rosa
MatildeViademonte was his maternal sister.
Rosa Viademonte herself, in a document dated June 15, 1894 (Exhibit 1, page 135),
made the statement that Jose Joaquin de Inchausti, who, together with his wife, cared
for her since her early childhood, bequeathed to her, by virtue of a codicil executed
before a notary public on January 12, 1889, a legacy amounting to P4,000. The
contents of this document constitute a most convincing proof that Rosa Matilde was not
a daughter of Isabel Gonzalez, but only a protegee of hers and of her husband Jose
Joaquin de Inchausti.
Ramon Viademonte, Jr., while yet living, told his brother Joaquin J. de Inchausti (record,
p. 85), that Rosa Matilde was not their sister but only a protegee of their parents, whose
name was Rosa Matilde Robles. It is thus fully proven in the records of the case that
Rosa Matilde, the mother of the plaintiffs, was not a daughter of Isabel Gonzalez.

Even supposing that Rosa Matilde was in fact a natural child of the deceased Isabel
Gonzalez, because the records show that it was impossible that he was a legitimate
daughter of the latter, still it cannot be disputed that the said Rosa Matilde could not
inherit from her supposed natural mother, Isabel Gonzalez.
It is a positive fact admitted by the plaintiffs that Isabel Gonzalez died in 1886(record, p.
325) or some years before the Civil Code became operative in these Islands, and
therefore, the hereditary rights of the successors of the said deceased should be
determined in accordance with the prior laws or the Law of Toro, which provides, among
other things, that natural children have no right to succeed to their natural mother when,
on her death, the latter leaves legitimate children, as in the present case, and for this
reason it is useless to inquire as to whether Rosa Viademonte or Robles was a natural
or even an acknowledged natural child of Isabel Gonzalez.
Rule 1 of the transitory provisions of the Civil Code invoked by the appellants provides
as follows; "Rights arising under the legislation prior to this code, out of matters carried
out under its rules, shall be governed by said prior legislation, even if the code should
regulate them in another manner, or does not recognize the same. But if said right is
declared for the first time in this code, it shall be effective at once, even when the act
which gave rise thereto may have taken place under the prior legislation, provided it
does not prejudice other acquired rights having the same origin."
When Isabel Gonzalez died on December 12, 1886, or some time before the Civil Code
became effective in these Islands, she was survived by four children, the eldest being
Ramon Viademonte had with her first husband, and the other three, had with her
second husband Jose Joaquin de Inchausti, are Clotilde, Rafael, and Joaquin. On her
death, the right to succeed her was transmitted by operation of law to her legitimate and
legitimated children, and for this reason, even supposing that Rosa Matilde was a
natural child of Isabel Gonzalez, she could not claim any right to the inheritance of her
supposed natural mother, inasmuch as against her right there exist the rights acquired
by the four legitimate and legitimated children of said Isabel Gonzalez, which rights can
not be injured or prejudiced in accordance with the conclusive provision of the
aforementioned Rule 1 of the transitory provision of the Civil Code.
Besides, the records show that the action brought by the plaintiffs has already
prescribed, because section 38 of the Code of Civil Procedure provides that the rights of
action which have already accrued, with the exception of the two cases mentioned in
the same section, among which the present case is not included, must be vindicated by
the commencement of an action or proceeding to enforce the same within ten years
after Act No. 190 came into effect, and, as this Act became operative in 1901, it is
evident that the action instituted against the estate of Isabel Gonzalez has already
prescribed.

The plaintiffs, by their complaint, do not only seek the partition of the estate of the
deceased Isabel Gonzalez, but also and principally to recover the part of the inheritance
corresponding to their mother Rosa Matilde in her succession to the said deceased, so
that the discussion during the proceedings referred mainly to the question as to whether
the plaintiffs were descendants of an heiress to the said deceased, and if so, whether
they had a right derived from their mother to a part of the estate of Isabel Gonzalez.
This action must be brought within ten years. He who brings an action for the partition or
division of hereditary estates or property in common is supposed to by a coheir and to
have an undisputed right to the property claimed or to be coowner of the same property
possessed in common. He who claims a right to a part of an inheritance of a deceased
person, and who alleges that he is a relative of the latter and has a right of testate or
intestate succession thereto, has for his principal object the recognition of his right to
the inheritance claimed by him and the delivery to him of his share as fixed by law.
Before concluding this decision, it must be stated that, on page 21 of the brief signed by
Vicente Sotto as the plaintiffs attorney, and after the first five lines thereof, the following
statement appears: "It is also established that Rosa Viademonte was born of Isabel
Gonzalez in the year 1852, that is, during the widowhood of the latter."
Counsel for the defendants with reason, qualify as false, this affirmation made by the
counsel for the plaintiffs to the effect that the judge has established the fact that Rosa
Viademonte was born of Isabel Gonzalez, when such affirmation does not appear in any
part of the decision rendered by the said judge.
This court can not look with indifference on any attempt to alter or falsify, for certain
purposes, the facts or their important details in the extracts or references that have to
be made in proceedings or records brought before it. All the records in a proceeding
should contain and reflect the truth in such a way that all who intervene in it may have
absolute confidence that the course and procedure of a trial are under the vigilance and
inspection of the court.
It is unprofessional and worthy of the highest form of rebuke for a lawyer to attribute to a
judge a statement which he had not made in his decision, and in view of the fact that
Vicente Sotto has already been disbarred from the exercise of his profession by
resolution of this court, it is deemed unnecessary to determine what punishment shall
be adopted for said act, which in his case, should be imposed upon him as a lawyer
For the foregoing reasons, whereby the errors assigned to the judgment appealed from
are deemed to have been refuted, the said judgment should be, as it hereby is, affirmed
and the defendants absolved from the complaint, with the costs against the appellants.
So ordered.

Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
A.M. No. 533

April 29, 1968

IN RE: FLORENCIO MALLARE.

REYES, J.B.L., Actg. C.J.:
The respondent, Florencio Mallare, was admitted to the practice of law on 5 March
1962. In his verified petition to take the bar examinations in 1961, he alleged that he is a
citizen of the Philippines and that "his father is Esteban Mallare and his mother is Te Na,
both Filipino citizens". (Personal Record, No. 17450, Bar Division)
On 16 July 1962, the then Acting Commissioner of Immigration Martiniano P. Vivo
denounced the respondent to this Court as a Chinaman masquerading as a Filipino
citizen and requested that the matter be investigated thoroughly and if the respondent
fails to show that he has legally become a Filipino, steps be taken for striking his name
from the roll of persons authorized to practice law. Acting upon the request, this Court,
on 9 August 1962, referred the matter to its Legal Officer-Investigator for investigation
and report. An investigation was thus held wherein the relator or complainant and the
respondent appeared and adduced their respective evidence.
The position of the respondent-lawyer is that he is a Filipino citizen based on the
supposed citizenship of his father, Esteban Mallare, alleged to be a Filipino citizen by
choice, because he was the illegitimate son of a Chinese father and a Filipina mother,
Ana Mallare and that the respondent's mother, Te Na, a Chinese, followed the
citizenship of her husband upon their marriage.
The respondent's second theory is that, having been declared a Filipino citizen in a final
judgment in 1960 by the Court of First Instance of Quezon province, in its Civil Case No.
329-G (entitled, Vitaliano Itable vs. Artemio, Florencio, Paciencia, Esperanza and
Raymundo Mallare) and his birth record, wherein he was originally registered as a
Chinese, has likewise been ordered corrected to Filipino, by final judgment in Special
Proceeding No. 3925 of the same court, 1 his Filipino citizenship is conclusive, res
judicata and binding to the government and to the world.
Complainant Vivo disputed, on the facts, the respondent's first theory, and, on the
second theory, claimed that the aforestated Civil Case No. 329-G (Itable vs. Mallare)
was a simulated action calculated to obtain a judicial declaration of Philippine
citizenship and, after having obtained the said declaration, the respondent, together with

his brothers and sisters, utilized the declaration to change their birth and alien
registration the better to hide their true nationality, which is Chinese.
The respondent denies the charge of simulating an action; and by way of defense,
points out that Civil Case No. 329-G and Special Proceeding No. 3925 are not subject
to collateral attack and, since his birth record and alien registration (and that of his
brothers and sisters) have been corrected and cancelled, respectively, the question of
their citizenship is now moot and academic.
On respondent's first claim to citizenship by blood, the earliest datum that can be stated
about the respondent's supposed ancestry is that in 1902, 2 ex-municipal president
Rafael Catarroja, then eight (8) years old, met for the first time Ana Mallare, the
supposed paternal grandmother of the respondent, in Macalelon, Quezon. He had not
seen her deliver or give birth to the baby boy, Esteban Mallare, father of the respondent,
but met the supposed Filipina mother and Esteban Mallare years later when the boy
was already eight (8) years old. (Annex "8," pp. 10-12, t.s.n., Sept. 24, 1959, Civil Case
No. 329-G, CFI of Quezon Province). There is no evidence that Ana Mallare was an
"inhabitant of the Philippine Islands continuing to reside therein who was a Spanish
subject on the eleventh day of April, eighteen hundred and ninety-nine", as required by
the Philippine Bill of July 1, 1902 and she cannot, therefore, be considered a Filipina.
That witness Catarroja, the respondent, and the latter's brothers and sisters, stated that
Ana Mallare was a Filipina, as well as their testimonies in the civil case that she had not
married her Chinese husband and that she is the true mother of Esteban Mallare, are
more of opinion or conjecture than fact, utterly insufficient to overcome the presumption
that persons living together as husband and wife are married to each other (Rule 131,
par. bb). "Every intendment of law and fact", says Article 220 of our Civil Code "leans
toward the validity of marriage and the legitimacy of children."
The respondent relies on three documents as indicative of the alleged Philippine
citizenship of his father, Esteban Mallare. On 7 July 1926, Te Na, respondent's Chinese
mother, was described in a landing certificate of residence issued to her, as "wife of P.I.
citizen" and as wife of Dy Esteban, P.I. citizen". (Annex "16", being Exh. "3" in Civil Case
No. 329-G). On 20 February 1939, Esteban Dy Mallare executed an affidavit stating
therein that when he reached the age of majority he had "definitely elected to be a
Filipino citizen following the citizenship of my mother." (Annex "4" being Exh. "1" in Civil
Case No. 329-G) And, in 1928, Esteban Mallare was a registered voter in Macalelon,
Quezon. (Annex "7", being Exh. "2" in Civil Case No. 329-G).
A landing certificate of residence issued under Section 7, Act 702 by the Collector of
Customs is based upon an administrative ex parte determination of the evidence
presented and the facts as stated by the applicant and, therefore, carries little
evidentiary weight as to the citizenship of the applicant's husband. In the instant case,
the truth of Te Na's declarations when she applied for the landing certificate could have

been inquired into had she been presented as a witness in these proceedings, but this
was not done.
The affidavit of Esteban Mallare, besides being self-serving, is not a substitute for a duly
recorded election of Philippine citizenship, assuming that the affiant was qualified to so
elect. When Esteban executed it, he was already thirty-six (36) years old and he
executed it for the purpose, stated in the last paragraph, of making a change in a
miscellaneous lease application wherein he had previously stated that he is a citizen of
China. Nor can it be regarded as a re-affirmation of an alleged election of citizenship,
since no such previous election was proven to have existed.
Esteban Mallare's registration as a voter indicates his desire to exercise a right
appertaining exclusively to Filipino citizens but this does not alter his real citizenship,
which, in this jurisdiction, is determinable by his blood ( jus sanguinis).
Against these pretensions of Philippine citizenship, all the five (5) known children of the
spouses Esteban Mallare and Te Na Artemio, Esperanza, Florencio, Paciencia and
Raymundo, were registered at birth as children of aChinese father and a Chinese
mother and with the added detail that their parents were born in China.
The birth certificate of Esperanza Mallare (Exh. "F") who was born on 25 October 1939,
is particularly significant in this regard, because it bears the father's own signature. If
Esteban Mallare was indeed a Filipino by choice, as stated by him in his
aforementioned affidavit (Annex 4), then he should have so stated in this birth certificate
of his daughter, instead, he admits, against his own interest, that he is a Chinese.
Esteban Mallare's own death certificate (Exh. "C"), over the signature of his son,
Artemio Mallare, shows against Artemio's own interest that Esteban was a Chinese,
born in Fookiang, China; that he died on 5 June 1945, at the age of 42 and is buried at
the Chinese cemetery, having resided in the Philippines for 28 years (Exh. "C"), i.e.,
only since 1917.
The affidavit of Artemio denying that the signature in the aforesaid death certificate is
his, is inadmissible and, therefore, should be rejected, as it was offered in evidence for
the first time after trial was closed, as an annex to the respondent's memorandum with
the investigator. The affiant was not examined thereon, and the affidavit is self-serving
besides.
The entire family, consisting of the father, mother and their four (4) children (Raymundo
was not yet born) were registered as aliens in 1942 in the then Division of Alien
Statistics, pursuant to the proclamation of the Commander-in-Chief of the Imperial
Japanese Forces in the Philippines and Executive Order No. 25 of the then Executive
Commission. (See letter of Jan. 18, 1963 from the Bureau of Immigration to the Legal

Officer-Investigator, see also pp. 171 and 180-181, Vol. I, No. 4, Official Gazette,
published during Japanese occupation.) .
In addition, the respondent himself was again registered as an alien in 1950, his
application thereto bearing his thumbprints and stating therein that he is a Chinese; that
he belongs to the yellow race and that he had used these other names: "Tan Jua Gae",
"Enciong" and "Jua Gac" (Exh. "N"). He had been a teacher in the Candon Chinese
School (t.s.n., p. 17, Oct. 3, 1962). His explanation that it was his mother who registered
him as an alien is flimsy; and, as stated hereinbefore, he did not present his mother as a
witness.
The evidence is thus clearly preponderant, if not overwhelming that the respondent's
father, Esteban Mallare or "Mallari", also known as "Esteban Dy", "Esteban Dy Mallare"
and "Esteban Tan", was and remained a Chinese until he died; consequently, the
respondent's mother, admittedly a Chinese, retained her original citizenship and their
offspring, respondent, Florencio Mallare, together with his brothers and sisters, are
likewise Chinese nationals, through and through.
We now turn to respondent's second defense of res judicata. There are certain marks of
simulation that attended Civil Case No. 329-G, and indicating that it was brought to
circumvent a previous unfavorable opinion of the Secretary of Justice denying
cancellation of Mallare's alien registration (Op. No. 90, Ser. of 1955, dated March 31,
1955). The said civil case was instituted by the vendor (Vitaliano Itable) of a certain
parcel of land to rescind the sale and recover the land sold from the vendees, who are
the herein respondent and his brothers and sisters, on the ground that the said vendees
are Chinese. The vendor-plaintiff practically abandoned the case; the vendeesdefendants submitted evidence purporting to show their Filipino citizenship, and plaintiff
neither cross examined nor presented rebuttal proof. After trial, the court, declaring the
vendees as natural-born Filipino citizens, decided for the validity of the sale of the
parcel of land.
On the basis of the foregoing declaration by the Court of First Instance of Quezon
Province, the respondent and his brothers and sisters filed Special Proceeding No.
3925, in the same court, but in a different branch, for the "correction" of their birth
records. The local fiscal, representing the Solicitor General, appeared but did not
oppose the petition; wherefore, after hearing, the court granted the petition. Based on
the same judicial declaration, the then Commissioner of Immigration De la Rosa (not the
complainant) cancelled on June 8, 1960, the alien registration of the herein respondent
and that of his brothers and sisters, and issued to them identification certificates
recognizing them as Filipino citizens. Then Solicitor General Alafriz took the same
position.

Civil Case No. 329-G and Special Proceeding No. 3925 are not modes of acquiring
Philippine citizenship; neither is the Chinese citizenship of the respondent converted to
Filipino because certain government agencies recognized him as such. He remains,
by jus sanguinis, a Chinese until he is naturalized.
It is noted that the declaration that the respondent and his brothers and sisters are
Filipino citizens is stated in the dispositive portion of the decision in Civil Case No. 329G, which was an action in personam. The pronouncement was not within the court's
competence, because the declaration of the citizenship of these defendants was not the
relief that was sought. At the time, the pronouncement was beyond judicial power, there
being no law authorizing the institution of a judicial preceding to declare the citizenship
of an individual (Danilo Channie Tan v. Republic, L-14159, April 18, 1960; Paralaran v.
Republic, L-15047, Jan. 30, 1962; Tan Yu Chin v. Republic, L-15775, April 29, 1961; Tan
v. Republic, L-16108, October 31, 1961; Santiago vs. Commissioner, L-14653, Jan. 31,
1963; Comissioner vs. Domingo, L-21274, July 31, 1963; Lao Yap Diok, et al. v.
Republic, L-19107-09, Sept. 30, 1964).
In the basic case Channie
follows:1wph1.t

Tan

vs.

Republic,

ante,

this

Court

ruled

as

Under our laws, there can be no action or proceeding for the judicial declaration
of the citizenship of an individual. Courts of justice exist for the settlement of
justiciable controversies, which imply a given right, legally demandable and
enforceable, an act or omission violative of said right, and a remedy granted or
sanctioned by law, for said breach of right. As an incident only of the adjudication
of the rights of the parties to a controversy, the court may pass upon, and make a
pronouncement relative to, their status. Otherwise, such a pronouncement is
beyond judicial power. Thus, for instance, no action or proceeding may be
instituted for a declaration to the effect that plaintiff or petitioner is married, or
single, or a legitimate child, although a finding thereon may be made as a
necessary premise to justify a given relief available only to one enjoying said
status. At times, the law permits the acquisition of a given status, such as
naturalization, by judicial decree. But, there is no similar legislation authorizing
the institution of a judicial proceeding to declare that a given person is part of our
citizenry. (Tan vs. Republic, G.R. No. L-14159, April 18, 1960, reiterated in G.R.
No. L-15775, April 29, 1961).
The said judicial declaration3 was merely an incident to the adjudication of the rights of
the parties to the controversy over land ownership. Their citizenship was not the thing
adjudicated in the judgment and the declaration that they are Filipinos was but a
necessary premise for the court to arrive at a conclusion that the sale of the realty was
valid as between the parties. Not being the thing directly adjudicated, their declared
citizenship is not res judicata, and cannot become conclusive.

The appearance of the fiscal, representing the Solicitor General, in Special Proceeding
No. 3925 does not bind the state to the order of "correction" of the birth records
because the proceeding was not instituted as in rem and, under no law had the state
given its consent to be party thereto. For this reason, the fiscal's appearance was an
unauthorized one.
It is noteworthy that in neither case relied upon by the respondent does it appear that
his claim for citizenship was given adequate publication so as to apprise all concerned
and give them opportunity to contest it or supply the corresponding public office any
derogatory data that might exist against the alleged citizenship. Hence, neither decision
constitutes res judicata on the issue of respondent's alleged Filipino nationality.
And certainly, the Supreme Court, acting pursuant to its inherent and constitutional
authority, may not be precluded from inquiring into the citizenship of persons admitted to
the practice of law, independently of any other court's findings in the cases or
proceedings brought or instituted therein.
IN VIEW OF ALL THE FOREGOING, the respondent Florencio Mallare is hereby
declared excluded from the practice of law; his admission to the Philippine bar is
revoked and he is hereby ordered to return immediately to this Court the lawyer's
diploma previously issued to him.
Let a copy of this decision be furnished, when it becomes final, to the Secretary of
Justice, for such action as may be deemed warranted; and let another copy be sent to
the Local Civil Registrar of Macalelon, Quezon, for purposes of record in the
corresponding civil registry of births. So ordered.
Republic of the Philippines
Supreme Court
Manila
FIRST DIVISION
DBP POOL OF ACCREDITED G.R. NO. 147039
INSURANCE COMPANIES,
Petitioner, Present:
PANGANIBAN, C.J.
(Chairman)
YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.

RADIO MINDANAO NETWORK,

INC., Promulgated:
Respondent. January 27, 2006
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
AUSTRIA-MARTINEZ, J.:
This refers to the petition for certiorari under Rule 45 of the Rules of Court seeking the
review of the Decision[1] dated November 16, 2000 of the Court of Appeals (CA) in CAG.R. CV No. 56351, the dispositive portion of which reads:
Wherefore, premises considered, the appealed Decision of
the Regional Trial Court of Makati City, Branch 138 in Civil Case No. 90602 is hereby AFFIRMED with MODIFICATION in that the interest rate is
hereby reduced to 6% per annum.
Costs against the defendants-appellants.
SO ORDERED.[2]

The assailed decision originated from Civil Case No. 90-602 filed by Radio Mindanao
Network, Inc. (respondent) against DBP Pool of Accredited Insurance Companies
(petitioner) and Provident Insurance Corporation (Provident) for recovery of insurance
benefits. Respondent owns several broadcasting stations all over the country. Provident
covered respondents transmitter equipment and generating set for the amount
of P13,550,000.00 under Fire Insurance Policy No. 30354, while petitioner covered
respondents transmitter, furniture, fixture and other transmitter facilities for the amount
of P5,883,650.00 under Fire Insurance Policy No. F-66860.
In

the

evening

of July

27,

1988,

respondents

radio

station

located

in SSS Building, Bacolod City, was razed by fire causing damage in the amount
of P1,044,040.00. Respondent sought recovery under the two insurance policies but the

claims were denied on the ground that the cause of loss was an excepted risk excluded
under condition no. 6 (c) and (d), to wit:
6. This insurance does not cover any loss or damage occasioned by or
through or in consequence, directly or indirectly, of any of the following
consequences, namely:
(c) War, invasion, act of foreign enemy, hostilities, or warlike operations
(whether war be declared or not), civil war.
(d) Mutiny, riot, military or popular rising, insurrection, rebellion, revolution,
military or usurped power.[3]
The insurance companies maintained that the evidence showed that the fire was
caused by members of the Communist Party of the Philippines/New Peoples Army
(CPP/NPA); and consequently, denied the claims. Hence, respondent was constrained
to file Civil Case No. 90-602 against petitioner and Provident.
After trial on the merits, the Regional Trial Court of Makati, Branch 138, rendered a
decision in favor of respondent. The dispositive portion of the decision reads:
IN VIEW THEREOF, judgment is rendered in favor of plaintiff. Defendant
Provident Insurance Corporation is directed to pay plaintiff the amount
of P450,000.00 representing the value of the destroyed property insured
under its Fire Insurance Policy plus 12% legal interest from March 2,
1990 the date of the filing of the Complaint. Defendant DBP Pool
Accredited Insurance Companies is likewise ordered to pay plaintiff the
sum of P602,600.00 representing the value of the destroyed property
under its Fire Insurance Policy plus 12% legal interest from March 2,
1990.
SO ORDERED.[4]

Both insurance companies appealed from the trial courts decision but the CA affirmed
the decision, with the modification that the applicable interest rate was reduced to 6%
per annum. A motion for reconsideration was filed by petitioner DBP which was denied
by the CA per its Resolution dated January 30, 2001.[5]

Hence, herein petition by DBP Pool of Accredited Insurance Companies, [6] with the
following assignment of errors:
Assignment of Errors
THE HONORABLE COURT OF APPEALS ERRED WHEN IT HELD THAT
THERE WERE NO SUFFICIENT EVIDENCE SHOWING THAT THE
APPROXIMATELY TENTY [sic] (20) ARMED MEN WHO CUSED [sic]
THE FIRE AT RESPONDENTS RMN PROPERTY AT BACOLOD CITY
WERE MEMBERS OF THE CPP-NPA.
THE HONORABLE COURT OF APPEALS ERRED WHEN IT ADJUDGED
THAT RESPONDENT RMN CANNOT BEHELD [sic] FOR DAMAGES
AND ATTORNEYS FEES FOR INSTITUTING THE PRESENT ACTION
AGAINST THE PETITIONER UNDER ARTICLES 21, 2208, 2229 AND
2232 OF THE CIVIL CODE OF THE PHILIPPINES.[7]
Petitioner assails the factual finding of both the trial court and the CA that its evidence
failed to support its allegation that the loss was caused by an excepted risk, i.e.,
members of the CPP/NPA caused the fire. In upholding respondents claim for indemnity,
the trial court found that:
The only evidence which the Court can consider to determine if the fire
was due to the intentional act committed by the members of the New
Peoples Army (NPA), are the testimony [sic] of witnesses Lt. Col. Nicolas
Torres and SPO3 Leonardo Rochar who were admittedly not present
when the fire occurred. Their testimony [sic] was [sic] limited to the fact
that an investigation was conducted and in the course of the investigation
they were informed by bystanders that heavily armed men entered the
transmitter house, poured gasoline in (sic) it and then lighted it. After that,
they went out shouting Mabuhay ang NPA (TSN, p. 12., August 2,
1995). The persons whom they investigated and actually saw the burning
of the station were not presented as witnesses.The documentary evidence
particularly Exhibits 5 and 5-C do not satisfactorily prove that the author of
the burning were members of the NPA. Exhibit 5-B which is a letter
released by the NPA merely mentions some dissatisfaction with the
activities of some people in the media in Bacolod. There was no mention
there of any threat on media facilities.[8]

The CA went over the evidence on record and sustained the findings of the trial court, to
wit:

To recapitulate, defendants-appellants presented the following to support

its claim, to wit: police blotter of the burning of DYHB, certification of the
Negros Occidental Integrated National Police, Bacolod City regarding the
incident, letter of alleged NPA members Celso Magsilang claiming
responsibility for the burning of DYHB, fire investigation report dated July
29, 1988, and the testimonies of Lt. Col. Nicolas Torres and SFO III
Leonardo Rochas. We examined carefully the report on the police blotter
of the burning of DYHB, the certification issued by the Integrated National
Police of Bacolod City and the fire investigation report prepared by SFO
III Rochas and there We found that none of them categorically stated that
the twenty (20) armed men which burned DYHB were members of the
CPP/NPA. The said documents simply stated that the said armed men
were believed to be or suspected of being members of the said
group.Even SFO III Rochas admitted that he was not sure that the said
armed men were members of the CPP-NPA, thus:
In fact the only person who seems to be so sure that that the CPPNPA had a hand in the burning of DYHB was Lt. Col. Nicolas
Torres. However, though We found him to be persuasive in his testimony
regarding how he came to arrive at his opinion, We cannot nevertheless
admit his testimony as conclusive proof that the CPP-NPA was really
involved in the incident considering that he admitted that he did not
personally see the armed men even as he tried to pursue them. Note that
when Lt. Col. Torres was presented as witness, he was presented as an
ordinary witness only and not an expert witness. Hence, his opinion on the
identity or membership of the armed men with the CPP-NPA is not
admissible in evidence.
Anent the letter of a certain Celso Magsilang, who claims to be a member
of NPA-NIROC, being an admission of person which is not a party to the
present action, is likewise inadmissible in evidence under Section 22, Rule
130 of the Rules of Court. The reason being that an admission is
competent only when the declarant, or someone identified in legal interest
with him, is a party to the action.[9]

The Court will not disturb these factual findings absent compelling or exceptional
reasons. It should be stressed that a review by certiorari under Rule 45 is a matter of
discretion. Under this mode of review, the jurisdiction of the Court is limited to reviewing
only errors of law, not of fact.[10]

Moreover, when supported by substantial evidence, findings of fact of the trial

court as affirmed by the CA are conclusive and binding on the parties, [11] which this
Court will not review unless there are exceptional circumstances. There are no
exceptional circumstances in this case that would have impelled the Court to depart
from the factual findings of both the trial court and the CA.
Both the trial court and the CA were correct in ruling that petitioner failed to prove
that the loss was caused by an excepted risk.
Petitioner argues that private respondent is responsible for proving that the
cause of the damage/loss is covered by the insurance policy, as stipulated in the
insurance policy, to wit:
Any loss or damage happening during the existence of abnormal
conditions (whether physical or otherwise) which are occasioned by or
through in consequence directly or indirectly, of any of the said
occurrences shall be deemed to be loss or damage which is not covered
by the insurance, except to the extent that the Insured shall prove that
such loss or damage happened independently of the existence of such
abnormal conditions.
In any action, suit or other proceeding where the Companies allege
that by reason of the provisions of this condition any loss or damage is not
covered by this insurance, the burden of proving that such loss or damage
is covered shall be upon the Insured.[12]

An insurance contract, being a contract of adhesion, should be so interpreted as

to carry out the purpose for which the parties entered into the contract which is to insure
against risks of loss or damage to the goods. Limitations of liability should be regarded
with extreme jealousy and must be construed in such a way as to preclude the insurer
from noncompliance with its obligations. [13]
The burden of proof contemplated by the aforesaid provision actually refers to
the burden of evidence (burden of going forward). [14] As applied in this case, it refers to

the duty of the insured to show that the loss or damage is covered by the policy. The
foregoing clause notwithstanding, the burden of proof still rests upon petitioner to prove
that the damage or loss was caused by an excepted risk in order to escape any liability
under the contract.
Burden of proof is the duty of any party to present evidence to establish his claim
or defense by the amount of evidence required by law, which is preponderance of
evidence in civil cases. The party, whether plaintiff or defendant, who asserts the
affirmative of the issue has the burden of proof to obtain a favorable judgment. For the
plaintiff, the burden of proof never parts. [15] For the defendant, an affirmative defense is
one which is not a denial of an essential ingredient in the plaintiffs cause of action, but
one which, if established, will be a good defense i.e. an avoidance of the claim. [16]
Particularly, in insurance cases, where a risk is excepted by the terms of a policy
which insures against other perils or hazards, loss from such a risk constitutes a
defense which the insurer may urge, since it has not assumed that risk, and from this it
follows that an insurer seeking to defeat a claim because of an exception or
limitation in the policy has the burden of proving that the loss comes within the
purview of the exception or limitation set up. If a proof is made of a loss apparently
within a contract of insurance, the burden is upon the insurer to prove that the loss
arose from a cause of loss which is excepted or for which it is not liable, or from a cause
which limits its liability.[17]
Consequently, it is sufficient for private respondent to prove the fact of damage or
loss. Once respondent makes out a prima facie case in its favor, the duty or the burden
of evidence shifts to petitioner to controvert respondents prima facie case.[18] In this
case, since petitioner alleged an excepted risk, then the burden of evidence shifted to
petitioner to prove such exception. It is only when petitioner has sufficiently proven that
the damage or loss was caused by an excepted risk does the burden of evidence shift
back to respondent who is then under a duty of producing evidence to show why such

excepted risk does not release petitioner from any liability. Unfortunately for petitioner, it
failed to discharge its primordial burden of proving that the damage or loss was caused
by an excepted risk.
Petitioner however, insists that the evidence on record established the identity of
the author of the damage. It argues that the trial court and the CA erred in not
appreciating the reports of witnesses Lt. Col Torres and SFO II Rochar that the
bystanders they interviewed claimed that the perpetrators were members of the
CPP/NPA as an exception to the hearsay rule as part of res gestae.
A witness can testify only to those facts which he knows of his personal
knowledge, which means those facts which are derived from his perception. [19] A witness
may not testify as to what he merely learned from others either because he was told or
read or heard the same. Such testimony is considered hearsay and may not be
received as proof of the truth of what he has learned. The hearsay rule is based upon
serious concerns about the trustworthiness and reliability of hearsay evidence inasmuch
as such evidence are not given under oath or solemn affirmation and, more importantly,
have not been subjected to cross-examination by opposing counsel to test the
perception, memory, veracity and articulateness of the out-of-court declarant or actor
upon whose reliability on which the worth of the out-of-court statement depends. [20]
Res gestae, as an exception to the hearsay rule, refers to those exclamations
and statements made by either the participants, victims, or spectators to a crime
immediately before, during, or after the commission of the crime, when the
circumstances are such that the statements were made as a spontaneous reaction or
utterance inspired by the excitement of the occasion and there was no opportunity for
the declarant to deliberate and to fabricate a false statement. The rule in res
gestae applies when the declarant himself did not testify and provided that the
testimony of the witness who heard the declarant complies with the following requisites:
(1) that the principal act, the res gestae, be a startling occurrence; (2) the statements

were made before the declarant had the time to contrive or devise a falsehood; and (3)
that the statements must concern the occurrence in question and its immediate
attending circumstances.[21]
The Court is not convinced to accept the declarations as part of res
gestae. While it may concede that these statements were made by the bystanders
during a startling occurrence, it cannot be said however, that these utterances were
made spontaneously by the bystanders and before they had the time to contrive or
devise a falsehood. Both SFO III Rochar and Lt. Col. Torres received the bystanders
statements while they were making their investigations during and after the fire. It is
reasonable to assume that when these statements were noted down, the bystanders
already had enough time and opportunity to mill around, talk to one another and
exchange information, not to mention theories and speculations, as is the usual
experience in disquieting situations where hysteria is likely to take place. It cannot
therefore be ascertained whether these utterances were the products of truth. That the
utterances may be mere idle talk is not remote.
At best, the testimonies of SFO III Rochar and Lt. Col. Torres that these
statements were made may be considered as independently relevant statements
gathered in the course of their investigation, and are admissible not as to the veracity
thereof but to the fact that they had been thus uttered. [22]
Furthermore, admissibility of evidence should not be equated with its weight and
sufficiency.[23] Admissibility of evidence depends on its relevance and competence, while
the weight of evidence pertains to evidence already admitted and its tendency to
convince and persuade.[24] Even assuming that the declaration of the bystanders that it
was the members of the CPP/NPA who caused the fire may be admitted as evidence, it
does not follow that such declarations are sufficient proof. These declarations should be
calibrated vis--vis the other evidence on record. And the trial court aptly noted that there
is a need for additional convincing proof, viz.:

The Court finds the foregoing to be insufficient to establish that the cause
of the fire was the intentional burning of the radio facilities by the rebels or
an act of insurrection, rebellion or usurped power. Evidence that persons
who burned the radio facilities shouted Mabuhay ang NPA does not
furnish logical conclusion that they are member [sic] of the NPA or that
their act was an act of rebellion or insurrection. Additional convincing proof
need be submitted. Defendants failed to discharge their responsibility to
present adequate proof that the loss was due to a risk excluded. [25]

While the documentary evidence presented by petitioner, i.e., (1) the police
blotter; (2) the certification from the Bacolod Police Station; and (3) the Fire
Investigation Report may be considered exceptions to the hearsay rule, being entries in
official records, nevertheless, as noted by the CA, none of these documents
categorically stated that the perpetrators were members of the CPP/NPA. [26] Rather, it
was stated in the police blotter that: a group of persons accompanied by one (1) woman
all believed to be CPP/NPA more or less 20 persons suspected to be CPP/NPA,
[27]

while the certification from the Bacolod Police station stated that some 20 or more

armed men believed to be members of the New Peoples Army NPA, [28] and the fire
investigation report concluded that (I)t is therefore believed by this Investigating Team
that the cause of the fire is intentional, and the armed men suspected to be members
of the CPP/NPA where (sic) the ones responsible

[29]

All these documents show that

indeed, the suspected executor of the fire were believed to be members of the
CPP/NPA. But suspicion alone is not sufficient, preponderance of evidence being the
quantum of proof.
All told, the Court finds no reason to grant the present petition.
WHEREFORE, the petition is DISMISSED. The Court of Appeals Decision
dated November 16, 2000 and Resolution dated January 30, 2001 rendered in CA-G.R.
CV No. 56351 are AFFIRMED in toto.
SO ORDERED.

SECOND DIVISION
JUANITO TALIDANO, G.R. No. 172031
Petitioner,
Present:
QUISUMBING, J.,
Chairperson,
- versus - CARPIO MORALES,
TINGA,
VELASCO, JR., and
BRION, JJ.
FALCON MARITIME & ALLIED
SERVICES, INC., SPECIAL EIGHTH
DIVISION OF THE COURT OF Promulgated:
APPEALS, AND LABOR ARBITER
ERMITA C. CUYUGA,
Respondents. July 14, 2008
x----------------------------------------------------------------------------x
DECISION
TINGA, J.:

This Petition for Certiorari [1] under Rule 65 of the Rules of Court seeks to annul
the Decision[2] and Resolution[3] of the Court of Appeals, dated 16 November 2005 and2
February 2006, respectively, which upheld the validity of the dismissal of Juanito
Talidano (petitioner). The challenged decision reversed and set aside the Decision [4] of
the National Labor Relations Commission (NLRC) and reinstated that of the Labor
Arbiter.[5]
Petitioner was employed as a second marine officer by Falcon Maritime and
Allied Services, Inc. (private respondent) and was assigned to M/V Phoenix Seven, a
vessel owned and operated by Hansu Corporation (Hansu) which is based in Korea. His
one (1)-year contract of employment commenced on 15 October 1996 and stipulated
the monthly wage at $900.00 with a fixed overtime pay of $270.00 and leave pay of
$75.00.[6]

Petitioner claimed that his chief officer, a Korean, always discriminated against
and maltreated the vessels Filipino crew. This prompted him to send a letter-complaint
to the officer-in-charge of the International Transport Federation (ITF) in London, a
measure that allegedly was resented by the chief officer. Consequently, petitioner was
dismissed on 21 January 1997. He filed a complaint for illegal dismissal on 27 October
1999.[7]

Private respondent countered that petitioner had voluntarily disembarked the

vessel after having been warned several times of dismissal from service for his
incompetence, insubordination, disrespect and insulting attitude toward his superiors. It
cited an incident involving petitioners incompetence wherein the vessel invaded a
different route at theOsaka Port in Japan due to the absence of petitioner who was then
supposed to be on watch duty. As proof, it presented a copy of a fax message, sent to it
on the date of incident, reporting the vessels deviation from its course due to petitioners
neglect of duty at the bridge, [8] as well as a copy of the report of crew discharge issued
by the master of M/VPhoenix Seven two days after the incident.[9]
Private respondent stated that since petitioner lodged the complaint before the
Labor Arbiter two (2) years and nine (9) months after his repatriation, prescription had
already set in by virtue of Revised POEA Memorandum Circular No. 55, series of 1996
which provides for a one-year prescriptive period for the institution of seafarers claims
arising from employment contract.[10]
On 5 November 2001, the Labor Arbiter rendered judgment dismissing
petitioners complaint, holding that he was validly dismissed for gross neglect of
duties. The Labor Arbiter relied on the fax messages presented by private respondent to
prove petitioners neglect of his duties, thus:
x x x The fax message said that the Master of M/V Phoenix Seven
received an emergency warning call from Japan Sisan Sebo Naika Radio
Authority calling attention to the Master of the vessel M/V Phoenix Seven

that his vessel is invading other route [sic]. When the Master checked the
Bridge, he found out that the Second Officer (complainant) did not carry
out his duty wathch. There was a confrontation between the Master and
the Complainant but the latter insisted that he was right. The argument of
the Complainant asserting that he was right cannot be sustained by this
Arbitration Branch. The fact that there was an emergency call from the
Japanese port authority that M/V Phoenix Seven was invading other route
simply means that Complainant neglected his duty. The fax message
stating that Complainant was not at the bridge at the time of the
emergency call was likewise not denied nor refuted by the
Complainant.Under our jurisprudence, any material allegation and/or
document which is not denied specifically is deemed admitted. If not of the
timely call [sic] from the port authority that M/V Phoenix Seven invaded
other route, the safety of the vessel, her crew and cargo may be
endangered. She could have collided with other vessels because of
complainants failure to render watch duty.[11]

On appeal, the NLRC reversed the ruling of the Labor Arbiter and declared the
dismissal as illegal. The dispositive portion of the NLRCs decision reads:
WHEREFORE, premises considered, the decision appealed from is
hereby reversed and set aside and a new one entered declaring the
dismissal of the complainant as illegal.Respondents Falcon Maritime &
Allied Services, Inc. and Hansu Corporation are hereby ordered to jointly
and severally pay complainant the amount equivalent to his three (3)
months salary as a result thereof.[12]

The NLRC held that the fax messages in support of the alleged misbehavior and
neglect of duty by petitioner have no probative value and are self-serving. It added that
the ships logbook should have been submitted in evidence as it is the repository of all
the activities on board the vessel, especially those affecting the performance or attitude
of the officers and crew members, and, more importantly, the procedures preparatory to
the discharge of a crew member. The NLRC also noted that private respondent failed to
comply with due process in terminating petitioners employment. [13]

filed

Private respondent moved for reconsideration, [14] claiming that the complaint was
beyond the one-year prescriptive period. The NLRC, however, denied

reconsideration in a Resolution dated 30 August 2002.[15] Rejecting the argument that

the complaint had already prescribed, it ruled:
Records show that respondent in this case had filed a motion to
dismiss on the ground of prescription before the Labor Arbiter a quo who
denied the same in an Order dated August 1, 2000. Such an Order being
unappealable, the said issue of prescription cannot be raised anew
specially in a motion for reconsideration. (Citations omitted) [16]

It appears that respondent received a copy of the NLRC Resolution [17] on 24

September 2002 and that said resolution became final and executory on 7 October
2002.[18]
Private respondent brought the case to the Court of Appeals via a Petition for
Certiorari[19] on 8 October 2002. The petition, docketed as CA-G.R. Sp. No. 73521, was
dismissed on technicality in a Resolution dated 29 October 2002. The pertinent portion
of the resolution reads:
(1)

(2)
(3)

[T]he VERIFICATION AND CERTIFICATION OF NONFORUM SHOPPING was signed by one Florida Z. Jose,
President of petitioner Falcon Maritime and Allied Services, Inc.,
without proof that she is the duly authorized representative of
petitioner-corporation;
[T]here is no affidavit of service of the petition to the
National Labor Relations Commission and to the adverse party;
[T]here is no explanation to justify service by mail in
lieu of the required personal service. (Citations omitted) [20]

An entry of judgment was issued by the clerk of court on 23 November

2002 stating that the 29 October 2002 Resolution had already become final and
executory.[21]Meanwhile, on 12 November 2002, private respondent filed another petition
before the Court of Appeals,[22] docketed as CA G.R. SP No. 73790. This is the subject
of the present petition.
Petitioner dispensed with the filing of a comment. [23] In his Memorandum,
[24]
however, he argued that an entry of judgment having been issued in CA-G.R. SP No.
73521, the filing of the second petition hinging on the same cause of action after the first
petition had been dismissed violates not only the rule on forum shopping but also the
principle of res judicata. He highlighted the fact that the decision subject of the second
petition before the Court of Appeals had twice become final and executory, with entries
of judgment made first by the NLRC and then by the Court of Appeals.

The appellate court ultimately settled the issue of prescription, categorically

declaring that the one-year prescriptive period applies only to employment contracts
entered into as of 1 January 1997 and not those entered prior thereto, thus:
x x x The question of prescription is untenable. Admittedly, POEA
Memorandum Circular [No.] 55 prescribing the standard terms of an
employment contract of a seafarer was in effect when the respondent was
repatriated on January 21, 1997. This administrative issuance was
released in accordance with Department Order [No.] 33 of the Secretary of
Labor directing the revision of the existing Standard Employment Contract
to be effective by January 1, 1997. Section 28 of this revised contract
states: all claims arising therefrom shall be made within one year from the
date of the seafarers return to the point of hire.

It is crystal clear that the one-year period of prescription of claims in

the revised standard contract applies only to employment contracts
entered into as of January 1, 1997. If there is still any doubt about this, it
should be removed by the provision of Circular [No.] 55 which says that
the new schedule of benefits to be embodied in the standard contract will
apply to any Filipino seafarer that will be deployed on or after the
effectivity of the circular.
The respondent was deployed before January 1,
acknowledged by the petitioners, the rule prior to Circular
provided for a prescriptive period of three years. We cannot
ineluctable conclusion that the claim of the respondent was filed
prescriptive period.[25]

1997. As
[No.] 55
avoid the
within the

Despite ruling that prescription had not set in, the appellate court nonetheless
declared petitioners dismissal from employment as valid and reinstated the Labor
Arbiters decision.
The appellate court relied on the fax messages issued by the ship master
shortly after petitioner had committed a serious neglect of his duties. It noted that the
said fax messages constitute the res gestae. In defending the non-presentation of the
logbook, it stated that three years had already passed since the incident and Hansu was
no longer the principal of private respondent.

Petitioners motion for reconsideration was denied. Hence he filed this instant
petition.

Citing grave abuse of discretion on the part of the Court of Appeals, petitioner
reiterates his argument that the appellate court should not have accepted the second
petition in view of the fact that a corresponding entry of judgment already has been
issued. By filing the second petition, petitioner believes that private respondent has
engaged in forum shopping.[26]
Private respondent, for its part, defends the appellate court in taking cognizance
of the second petition by stressing that there is no law, rule or decision that prohibits the
filing of a new petition for certiorari within the reglementary period after the dismissal of
the first petition due to technicality.[27] It rebuts petitioners charge of forum shopping by
pointing out that the dismissal of the first petition due to technicality has not ripened
into res judicata, which is an essential element of forum shopping.[28]
In determining whether a party has violated the rule against forum shopping, the
test to be applied is whether the elements of litis pendentia are present or whether a
final judgment in one case will amount to res judicata in the other.[29] This issue has
been thoroughly and extensively discussed and correctly resolved by the Court of
Appeals in this wise:
The respondents two arguments essay on certain developments in
the case after the NLRC rendered its decision. He points out with alacrity
that an entry of judgment was issued twice first by the NLRC with respect
to its decision and then by the Ninth Division of the Court of Appeals after
it dismissed on technical grounds the first petition for certiorari filed by the
petitioner.Neither event, for sure, militates against the institution of a
second petition for certiorari. A decision of the NLRC is never final for as
long as it is the subject of a petition for certiorari that is pending with a
superior court. A contrary view only demeans our certiorari jurisdiction and
will never gain currency under our system of appellate court review. It is
more to the point to ask if a second petition can stand after the first is

dismissed, but under the particular circumstances in which the second

was brought, we hold that it can. The theory of res judicata invoked by the
respondent to bar the filing of the second petition does not apply. The
judgment or final resolution in the first petition must be on the merits
for res judicata to inhere, and it will not be on the merits if it is founded on
a consideration of only technical or collateral points. Yet this was exactly
how the first petition was disposed of. SP 73521 was dismissed as a result
of the failure of the petitioner to comply with the procedural requirements
of a petition for certiorari. The case never touched base. There was no
occasion for the determination of the substantive rights of the parties and,
in this sense, the merits of the case were not involved. The petitioner had
actually the option of either refilling [sic] the case or seeking
reconsideration in the original action. It chose to file SP 73790 after
realizing that it still had enough time left of the original period of 60 days
under Rule 65 to do so.
Since the dismissal of the first petition did not ripen into res
judicata, it may not be said that there was forum shopping with the filing of
the second. The accepted test for determining whether a party violated the
rule against forum shopping insofar as it is applicable to this setting is
whether the judgment or final resolution in the first case amounts to res
judicata in the second. Res judicata is central to the idea of forum
shopping. Without it, forum shopping is non-existent. The dismissal of the
first petition, moreover, if it does not amount to res judicata, need not be
mentioned in the certification of non-forum shopping accompanying the
second action. The omission will not be fatal to the viability of the second
case. (Citations omitted)[30]

Private respondent, in turn, questions the propriety of the instant certiorari

petition and avers that the issues raised by petitioner can only be dealt with under Rule
45 of the Rules of Court.[31] Against this thesis, petitioner submits that the acceptance of
the petition is addressed to the sound discretion of this Court. [32]
The proper remedy to assail decisions of the Court of Appeals involving final disposition
of a case is through a petition for review under Rule 45. In this case, petitioner filed
instead a certiorari petition under Rule 65. Notwithstanding this procedural lapse, this
Court resolves to rule on the merits of the petition in the interest of substantial justice,
[33]
the underlying consideration in this petition being the arbitrary dismissal of petitioner
from employment.

Petitioner submits that the Court of Appeals erred in relying merely on fax messages to
support the validity of his dismissal from employment. He maintains that the first fax
message containing the information that the vessel encroached on a different route was
a mere personal observation of the ship master and should have thus been
corroborated by evidence, and that these fax messages cannot be considered as res
gestae because the statement of the ship master embodied therein is just a report. He
also contends that he has not caused any immediate danger to the vessel and that if he
did commit any wrongdoing, the incident would have been recorded in the
logbook. Thus, he posits that the failure to produce the logbook reinforces the theory
that the fax messages have been concocted to justify his unceremonious dismissal from
employment. Hence, he believes that his dismissal from employment stemmed from his
filing of the complaint with the ITF which his superiors resented. [34]
Private respondent insists that the appellate court is correct in considering the fax
messages as res gestae statements. It likewise emphasizes that non-presentment of
the logbook is justified as the same could no longer be retrieved because Hansu has
already ceased to be its principal. Furthermore, it refutes the allegation of petitioner that
he was dismissed because he filed a complaint with the ITF in behalf of his fellow crew
members. It claims that petitioners allegation is a hoax because there is no showing that
the alleged complaint has been received by the ITF and that no action thereon was ever
taken by the ITF.[35]
Private respondent also asserts that petitioner was not dismissed but that he voluntarily
asked for his repatriation. This assertion, however, deserves scant consideration. It is
highly illogical for an employee to voluntarily request for repatriation and then file a suit
for illegal dismissal. As voluntary repatriation is synonymous to resignation, it is proper
to conclude that repatriation is inconsistent with the filing of a complaint for illegal
dismissal.[36]

The paramount issue therefore boils down to the validity of petitioners dismissal,
the determination of which generally involves a question of fact. It is not the function of
this Court to assess and evaluate the facts and the evidence again, our jurisdiction
being generally limited to reviewing errors of law that might have been committed by the
trial court or administrative agency. Nevertheless, since the factual findings of the Court

of Appeals and the Labor Arbiter are at variance with those of the NLRC, we resolve to
evaluate the records and the evidence presented by the parties. [37]
The validity of an employee's dismissal hinges on the satisfaction of two
substantive requirements, to wit: (1) the dismissal must be for any of the causes
provided for in Article 282 of the Labor Code; and (2) the employee was accorded due
process, basic of which is the opportunity to be heard and to defend himself. [38]
The Labor Arbiter held that petitioners absence during his watch duty when an
emergency call was received from the Japanese port authority that M/V Phoenix
Seven was invading other route constituted neglect of duty, a just cause for terminating
an employee. Records reveal that this information was related to private respondent via
two fax messages sent by the captain of M/V Phoenix Seven. The first fax message
dated 18 January 1997 is reproduced below:

JUST RECEIVED PHONE CALL FROM MASTER N C/OFFICER

THAT THEY DECIDED TO DISCHARGE 2/OFFICER AT OSAKA PORT.
DUE
ORDER.

TO

MIS-BEHAVIOUR N

RESEST [SIC]

TO

OFFICIAL

CAPT. HAD RECEIVED EMERGENCY WARNING CALL

FROM JAPAN BISAN SETO NAIKAI RADIO AUTHORITY THAT SHIP IS
INVADING OTHER ROUTE.
SO, HE WAS SURPRISED N CAME TO BRIDGE N FOUND 2/O
NOT CARRY OUT HIS WATCH DUTY.
MASTER SCOLD HIM ABOUT THIS N CORRECT HIS ERROR
BUT HE RESIST [SIC] THAT HE IS RIGHT AND THEN SAID THAT HE
WILL COME BACK HOME.
FURTHER MORE HE ASKED MASTER TO PAY HIM I.T.F. WAGE
SCALE.
MASTER N/CIO STRONGLY ASKED US HIS REPATRIATION
WITH I.E.U.
PLS. CONFIRM YOUR OPINION ON THIS HAPPENING.[39]

The second fax message dated 20 January 1997 pertained to a report of crew
discharge essentially containing the same information as the first fax message. The
Court of Appeals treated these fax messages as part of the res gestae proving neglect
of duty on the part of petitioner.

Section 42 of Rule 130[40] of the Rules of Court mentions two acts which form part
of the res gestae, namely: spontaneous statements and verbal acts. In spontaneous
exclamations, the res gestae is the startling occurrence, whereas in verbal acts, the res
gestae are the statements accompanying the equivocal act. [41] We find that the fax
messages cannot be deemed part of the res gestae.

To be admissible under the first class of res gestae, it is required that: (1) the
principal act be a startling occurrence; (2) the statements were made before the
declarant had the time to contrive or devise a falsehood; and (3) that the statements
must concern the occurrence in question and its immediate attending circumstances. [42]
Assuming that petitioners negligencewhich allegedly caused the ship to deviate
from its courseis the startling occurrence, there is no showing that the statements
contained in the fax messages were made immediately after the alleged incident. In
addition, no dates have been mentioned to determine if these utterances were made
spontaneously or with careful deliberation. Absent the critical element of spontaneity,
the fax messages cannot be admitted as part of the res gestae of the first kind.
Neither will the second kind of res gestae apply. The requisites for its
admissibility are: (1) the principal act to be characterized must be equivocal; (2) the
equivocal act must be material to the issue; (3) the statement must accompany the
equivocal act; and (4) the statements give a legal significance to the equivocal act. [43]
Petitioners alleged absence from watch duty is simply an innocuous act or at
least proved to be one. Assuming arguendo that such absence was the equivocal act, it
is nevertheless not accompanied by any statement more so by the fax statements
adverted to as parts of the res gestae. No date or time has been mentioned to
determine whether the fax messages were made simultaneously with the purported
equivocal act.
Furthermore, the material contents of the fax messages are unclear. The matter
of route encroachment or invasion is questionable. The ship master, who is the author
of the fax messages, did not witness the incident. He obtained such information only

from the Japanese port authorities. Verily, the messages can be characterized as
double hearsay.

In any event, under Article 282 of the Labor Code, [44] an employer may terminate
an employee for gross and habitual neglect of duties. Neglect of duty, to be a ground for
dismissal, must be both gross and habitual. Gross negligence connotes want of care in
the performance of ones duties. Habitual neglect implies repeated failure to perform
ones duties for a period of time, depending upon the circumstances. A single or isolated
act of negligence does not constitute a just cause for the dismissal of the employee. [45]

Petitioners supposed absence from watch duty in a single isolated instance is neither
gross nor habitual negligence. Without question, the alleged lapse did not result in any
untoward incident. If there was any serious aftermath, the incident should have been
recorded in the ships logbook and presented by private respondent to substantiate its
claim.Instead, private respondent belittled the probative value of the logbook and
dismissed it as self-serving. Quite the contrary, the ships logbook is the repository of all
activities and transactions on board a vessel. Had the route invasion been so serious as
to merit petitioners dismissal, then it would have been recorded in the logbook. Private
respondent would have then had all the more reason to preserve it considering that vital
pieces of information are contained therein.
In Haverton Shipping Ltd. v. NLRC,[46] the Court held that the vessels logbook is
an official record of entries made by a person in the performance of a duty required by
law.[47] In Abacast Shipping and Management Agency, Inc. v. NLRC,[48] a case cited by
petitioner, the logbook is a respectable record that can be relied upon to authenticate
the charges filed and the procedure taken against the employees prior to their
dismissal.[49] In Wallem Maritime Services, Inc. v. NLRC,[50] the logbook is a vital
evidence as Article 612 of the Code of Commerce requires the ship captain to keep a
record of the decisions he had adopted as the vessel's head. [51] Therefore, the nonpresentation of the logbook raises serious doubts as to whether the incident did happen
at all.
In termination cases, the burden of proving just or valid cause for dismissing an
employee rests on the employer.[52] Private respondent miserably failed to discharge this
burden. Consequently, the petitioners dismissal is illegal.

We also note that private respondent failed to comply with the procedural due
process requirement for terminating an employee. Such requirement is not a mere
formality that may be dispensed with at will. Its disregard is a matter of serious concern
since it constitutes a safeguard of the highest order in response to man's innate sense
of justice. The Labor Code does not, of course, require a formal or trial type proceeding
before an erring employee may be dismissed. This is especially true in the case of a
vessel on the ocean or in a foreign port. The minimum requirement of due process in
termination proceedings, which must be complied with even with respect to seamen on
board a vessel, consists of notice to the employees intended to be dismissed and the
grant to them of an opportunity to present their own side of the alleged offense or
misconduct, which led to the management's decision to terminate. To meet the
requirements of due process, the employer must furnish the worker sought to be
dismissed with two written notices before termination of employment can be legally
effected, i.e., (1) a notice which apprises the employee of the particular acts or
omissions for which his dismissal is sought; and (2) the subsequent notice after due
hearing which informs the employee of the employers decision to dismiss him. [53]

Private respondents sole reliance on the fax messages in dismissing petitioner is

clearly insufficient as these messages were addressed only to itself. No notice was ever
given to petitioner apprising him in writing of the particular acts showing neglect of duty.
Neither was he informed of his dismissal from employment. Petitioner was never given
an opportunity to present his side. The failure to comply with the two-notice rule only
aggravated respondents liability on top of dismissing petitioner without a valid cause.
Pursuant to Section 10 of Republic Act No. 8042 [54] or the Migrant Workers Act,
employees who are unjustly dismissed from work are entitled to an amount representing
their three (3) months salary considering that their employment contract has a term of
exactly one (1) year plus a full refund of his placement fee, with interest at 12% per
annum.[55]

IN LIGHT OF THE FOREGOING, the petition is GRANTED. The Decision of the

Court
of
Appeals
is
REVERSED
and
SET
ASIDE. The Decision of the NLRC isREINSTATED with the MODIFICATION that in
addition to the payment of the sum equivalent to petitioners three (3) months salary, the
full amount of placement fee with 12% legal interest must be refunded.
SO ORDERED.
FIRST DIVISION

PEOPLE OF THE PHILIPPINES,

G.R. No. 185849

Plaintiff-Appellee,
Present:

PUNO, C.J., Chairperson,

CARPIO MORALES,
- versus -

LEONARDO-DE CASTRO,
BERSAMIN, and
VILLARAMA, JR., JJ.

JONJIE ESOY y HUNGOY, ROLANDO Promulgated:

CIANO
y SOLEDAD and
ROGER
BOLALACAO y DADIVAS,
April 7, 2010
Accused-Appellants.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
VILLARAMA, JR., J.:

The present appeal assails the Decision [1] dated April 30, 2008 of the Court of
Appeals in CA-G.R. HC-CR No. 02701 affirming the February 27, 2007 Decision [2] of the
Regional Trial Court (RTC) of Manila, Branch 54, convicting appellants of the crime of
robbery with homicide.
In an Information[3] dated February 2, 2001, appellants Jonjie Esoy y Hungoy
(Esoy), Rolando Ciano y Soledad (Ciano), and Roger Bolalacao y Dadivas (Bolalacao)
were charged as follows:
That on or about January 18, 2001, in the City of Manila, Philippines, the
said accused, conspiring and confederating together and helping one
another, with intent to gain and by means of force, violence against and
intimidation, that is, by boarding a passenger jeepney pretending to be
paying passengers, suddenly pulling out their deadly bladed weapons,
stabbing on the chest one LORENZO CORO Y BARREDO, a paying
passenger, and grabbing his cellphone worth P7,000.00, Philippine
currency, did then and there willfully, unlawfully and feloniously take, rob
and carry away the said cellphone of Lorenzo B. Coro against his will, to
the damage and prejudice of the latter in the same sum as aforesaid; that
by reason and on the occasion of the said robbery the said Lorenzo B.
Coro, sustained fatal stab wounds which were the direct cause of his
death immediately thereafter.

CONTRARY TO LAW.

At the arraignment, appellants pleaded not guilty.[4] Trial thereafter ensued. The prosecution
presented three (3) witnesses: Andrea Pabalan, SPO1 Raul Olavario and Medico-Legal
Officer Dr. Filemon C. Porciuncula. Taken altogether, the evidence for the prosecution
established the following facts:
On January 18, 2001, around 8:00 p.m., the victim Lorenzo Coro and Andrea Pabalan
(Pabalan), rode a jeepney bound for Buendia Avenue at Taft Avenue corner T.M. Kalaw
Street in Manila. Upon reaching Taft Avenue corner Pedro Gil Street, Ermita, Manila,
appellants boarded the jeepney. Bolalacao sat beside the victim while Esoy and Ciano
sat on the opposite side. Pabalan noticed that Esoy and Ciano were staring at all the

passengers. Feeling apprehensive, she moved beside the victim and whispered to him
that she did not like the way the two (2) were staring at them. Esoy and Ciano also
seemed to be high on drugs, so she told the victim not to look at them. When she again
looked at Esoy and Ciano, the two (2) suddenly drew out their balisongs and swung the
same at them. In the ensuing commotion, the other passengers including appellants
alighted from the jeepney. When Pabalan told the victim that they should go down, she
saw the victims bloodied chest. She then shouted for help and that they be taken to the
hospital. The jeepney driver, however, told them to alight from the vehicle. Fearing that
the victim might run out of blood, she told him that they should go down. The victim then
told her that his cellular phone was snatched and asked her where appellants fled.
Pabalan just insisted that they alight from the vehicle and not to worry about his cellular
phone. Upon alighting from the jeepney, the victim fell down after a few steps. But with
the help of two (2) motorcyclists, they were able to hail an FX taxi and the victim was
immediately brought to the nearby Philippine General Hospital (PGH) where he was
operated on. Unfortunately, however, the victim died at 11:00 p.m. that same night.
On January 19, 2001, around 2:00 a.m., SPO1 Raul Olavario, Police Investigator of the
Homicide Division of the Western Police District (WPD), Manila, received information
from retired Police Inspector Cesar Diokno about a stabbing victim who expired at the
PGH. SPO1 Olavario then proceeded at the PGH to investigate. The hospital guard told
him about the robbery with homicide that occurred on January 18, 2001 inside a
passenger jeepney along Taft Avenue. At that time, Pabalan had already left the hospital
but she went to SPO1 Olavarios office later in the morning the same day to give her
sworn statement and the description of the assailants.
Several days after, or on January 31, 2001, Pabalan informed SPO1 Olavario that she
saw the three (3) appellants inside the WPD jail and positively identified them as the
assailants.
PNP Crime Laboratory Police Senior Inspector and Medico-Legal Officer Dr. Filemon C.
Porciuncula testified on the autopsy he performed on the cadaver of the victim and the

Medico-Legal Report No. M-0208-01[5] he submitted. The autopsy revealed that the
victim sustained a stab wound and multiple abrasions on the right knee.
Appellants, for their part, denied any involvement in the robbery-homicide incident. They
claimed that they were at their workplace in Bacood, Sta. Mesa, Manila, when the
incident happened. Both Ciano and Esoy testified that they started working at 8:00
a.m. until 5:00 p.m. of January 18, 2001. They rested for a while and resumed working
with intermittent rests until five (5) oclock the following morning of January 19, 2001. As
to Bolalacao, he claimed to be working from 7:00 a.m. of January 18, 2001 up to 5:00
a.m.the following morning of January 19, 2001.
Lauro Dela Cruz, supervisor of appellants, was called to testify to corroborate appellants
defense. Though Dela Cruz recognized the faces of the appellants as among those who
have worked under him, he could not categorically state that they were at the workplace
at the times and dates they specified because he was not there all the time and he does
not keep time records.
On February 27, 2007, the trial court rendered a Decision finding appellants guilty of the
crime of robbery with homicide, as follows:
WHEREFORE, finding accused Jonjie Esoy y Hungoy, Rolando Ciano y
Soledad, and Roger Bolalacao y Dadivas all GUILTY BEYOND
REASONABLE DOUBT of the complex crime of Robbery with Homicide
defined and penalized under Articles 293 and 294 (1) of the Revised Penal
Code, as recently amended by Republic Act No. 9346, the aforenamed
accused are each sentenced to suffer the penalty of Reclusion
Perpetua and shall indemnify the heirs of Lorenzo Coro in the amount of
One Hundred Fifty Thousand (P150,000.00) Pesos as actual and
compensatory damages and the further sum of Seventy-Five Thousand
(P75,000.00) Pesos as moral damages.

SO ORDERED.[6]

On April 30, 2008, the Court of Appeals affirmed with modification the RTC
decision as follows:
WHEREFORE, the appeal is DISMISSED. The Decision of the Regional
Trial Court, Branch 54, Manila is AFFIRMED. The trial courts award of civil
liability is hereby MODIFIED. Appellants JONJIE ESOY y HUNGOY,
ROLANDO CIANO y SOLEDAD and ROGER BOLALACAO y DADIVAS
are each ordered to pay the heirs of Lorenzo Coro the following sums: (a)
One Hundred Fifty Thousand (P150,000.00) as actual damages; (b) Fifty
Thousand Pesos (P50,000.00) ex delicto; and (c) Fifty Thousand Pesos
(P50,000.00) as moral damages.

SO ORDERED.[7]

Hence, this appeal.

On February 18, 2009, the Court directed the parties to file their respective
supplemental briefs if they desire. [8] Both appellants[9] and the Solicitor General,
[10]

however, manifested that they are dispensing with the filing of a supplemental brief

as their positions have already been assiduously discussed before the appellate court.
Thus, the errors raised in appellants Brief [11] dated July 24, 2007 are now deemed
adopted in this present appeal. Appellants raise the following errors:
I.
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANTS
ALTHOUGH
THEIR
IDENTITIES
AS
THE
PERPETRATORS WERE NOT ESTABLISHED BEYOND REASONABLE
DOUBT.

II.
THE TRIAL COURT GRAVELY ERRED IN GIVING SCANT
CONSIDERATION TO THE EVIDENCE PRESENTED BY THE
ACCUSED-APPELLANTS WHICH IS MORE CREDIBLE THAN THAT OF
THE PROSECUTIONS.

III.
ASSUMING THAT THE APPELLANTS ARE GUILTY, THE TRIAL COURT
GRAVELY ERRED IN CONVICTING THEM OF ROBBERY WITH
HOMICIDE NOTWITHSTANDING THE FACT THAT ROBBERY WAS NOT
PROVEN BEYOND REASONABLE DOUBT.

IV.
THE TRIAL COURT SERIOUSLY ERRED IN HOLDING THAT
CONSPIRACY EXISTED BETWEEN AND AMONG THE ALLEGED
PERPETRATORS.

V.
THE TRIAL COURT GRAVELY ERRED IN AWARDING ACTUAL AND
MORAL DAMAGES NOTWITHSTANDING THE FACT THAT THERE WAS
NO BASIS FOR ITS GRANT.[12]

Essentially, the issue for our resolution is whether the guilt of the appellants for
the crime of robbery with homicide has been proven beyond reasonable doubt.
Appellants contend that their identities as perpetrators of the crime were not established
beyond reasonable doubt. They argue that even if at the time of the incident there were
many light posts along Taft Avenue, the same cannot produce enough illumination
inside the vehicle to allow Pabalan to see clearly the faces of the assailants. The small
bulb inside the jeepney simply cannot be considered as sufficient source of light to
enable Pabalan to identify and remember the facial features of a total stranger. Further,
several days had passed before Pabalan made the identification during the police lineup and thus, it was impossible for her to have easily remembered the faces of the
assailants whom she supposedly saw on only one (1) occasion.
We are not persuaded.

As narrated by Pabalan, two (2) of the appellants Esoy and Ciano sat infront of
them while the other, Bolalacao, sat beside the victim. Considering the limited space
inside a passenger jeepney, the faces of appellants can be easily seen by Pabalan in
close range. Moreover, it is of no moment that the inside of a jeepney was only
illuminated by a small bulb. The said kind of light has already been held by the Court as
enough lighting for identification purposes. [13] Considering also the busy thoroughfare
of Taft Avenue, Ermita, light emanating from the headlights of passing vehicles can
contribute sufficient illumination[14] to enable Pabalan to identify appellants. We have
held that when conditions of visibility are favorable, and the witness does not appear to
be biased, as in the instant case, her assertion as to the identity of the malefactors
should normally be accepted.[15]
Furthermore, the reliability of Pabalans memory should not be doubted by the
mere fact that identification of the appellants at the police line-up happened several days
after the incident. It is known that the most natural reaction of a witness to a crime is to
strive to look at the appearance of the perpetrator and to observe the manner in which the
offense is perpetrated.[16] Most often the face of the assailant and body movements
thereof, create a lasting impression which cannot be easily erased from a witnesss
memory.[17]Experience dictates that precisely because of the unusual acts of violence
committed right before their eyes, eyewitnesses can remember with a high degree of
reliability the identity of criminals at any given time.[18]
As to appellants defense of alibi, it cannot prevail over the positive identification
of appellants as the perpetrators of the crime, especially in the face of categorical
statements coming from a credible witness who has no ill motives in testifying.
[19]
Pabalans testimony was straightforward and though she became emotional during
the middle part of her testimony, she remained consistent all through out even on crossexamination. Appellants have also not shown any reason for Pabalan to testify falsely
against them.
To establish alibi, an accused must prove (a) that he was present at another
place at the time the crime was perpetrated, and (b) that it was physically impossible for
him to be at the scene of the crime. Physical impossibility refers to the distance between

the place where the accused was when the crime transpired and the place where it was
committed, as well as the facility of access between the two places. [20] Here, appellants
failed to satisfy the said requisites, especially the second. The crime happened
along Taft Avenue, Ermita, while appellants claimed to be in their workplace in Bacood,
Sta. Mesa, at that time. The distance between Ermita and Sta. Mesa cannot be said as
too far that it was physically impossible for appellants not to be at Ermita, the scene of
the crime. Even the testimony of their immediate supervisor did not help in establishing
their defense since Dela Cruz could not categorically state that appellants were at the
workplace at the time and date the crime was committed.
Appellants next argue that (1) no evidence was presented by the prosecution
establishing that personal property was taken from the victim except for the hearsay
allegation of Pabalan; and (2) no witness testified that the victim or Pabalan actually
saw one (1) of the appellants take something from the victim. The contentions, however,
are likewise without merit.
The pertinent portion of Pabalans testimony is hereunder quoted verbatim:
Witness:
q What about Lorenzo Coro, do you know before this just at the moment
you had this jeepney ride, do you know if he had a cellular phone?
a Yes, sir, it was clipped on the right side of his waist.

Court:

Clipped at the?

Court Interpreter:

Right side of the waist.

Fiscal Carisma:
(continuing)

q Try to recall, Madam Witness, what else, if any, did you see at the
moment that these two (2) male persons who were seated in front
of you motioned to the point that they drew out their balisong and
lunged the same towards you and any other direction. What else, if
any, did you see in relation to Lorenzo Coro?

Witness:
(continuing)

a After the commotion, when I was about to alight from the jeep, he
told me that my cellular phone was snatched. I told him lets
go. He asked me where did they run? I told him not to bother
about that and lets go to the hospital. [21] [Emphasis and
underscoring supplied.]
Though Pabalans testimony as to the victims utterance that his cellular phone was taken is
only hearsay, the testimony is considered an exception to the hearsay rule, the victims
spontaneous utterance being part of res gestae.
Res gestae refers to those exclamations and statements made by either the participants,
the victim or spectator to a crime immediately before, during or immediately after the
commission of the crime, when the circumstances are such that the statements were
made as a spontaneous reaction or utterance inspired by excitement of the occasion and
there was no opportunity for the declarant to deliberate and to fabricate a false statement.
[22]
In the instant case, all the elements of res gestae are sufficiently established insofar as
the aforequoted spontaneous utterance is concerned: (1) the principal act (res gestae)
the robbery and stabbing of the victim is a startling occurrence; (2) the statements were
made before the declarant had time to contrive or devise, that is, within minutes after the
victim was stabbed and his cellular phone was snatched; and (3) the statement concerns
the occurrence in question and its immediately attending circumstances his cellular phone

was stolen during the startling occurrence. The testimony being an exception to the
hearsay rule, the trial court did not err in admitting the same.
Appellants also dispute the finding of conspiracy among them. They contend that
the mere fact that they boarded the jeepney at the same time does not necessarily
mean that they acted in conspiracy. Again, we are unconvinced.
Conspiracy may be deduced from the acts of the appellants before, during, and after
the commission of the crime which are indicative of a joint purpose, concerted action, and
concurrence of sentiments.[23] All three (3) appellants boarded the jeepney at the same
time. Two (2) strategically sat infront of the victim and Pabalan while the other sat beside
the victim. A few moments later, two (2) of the appellants (Esoy and Ciano) suddenly drew
out their balisongs and swung the same at Pabalan and the victim. In the ensuing
commotion, the victims cellular phone was snatched and he was stabbed in the
process. The appellants then hurriedly alighted from the jeepney at the same time. Their
original and principal intention was undoubtedly to stage a robbery with the use of violence.
As conspiracy had been established among appellants, all of them are liable as coprincipals regardless of the manner and extent of their participation since, in point of law,
the act of one (1) is the act of all.
Lastly, appellants challenge the award of actual damages claiming it was not
proven for failure to present any documentary evidence particularly the proof of funeral
expenses.
The argument is without merit.
Article 2199 of the Civil Code is clear:
ART. 2199. Except as provided by law or by stipulation, one is entitled
to an adequate compensation only for such pecuniary loss suffered by him
as he has duly proved. Such compensation is referred to as actual or
compensatory damages. [Emphasis and underscoring supplied.]

The defense has stipulated during the trial that the victims family incurred P150,000 for
funeral expenses, to wit:
Fiscal Carisma:

The wife of the deceased is here, your Honor. Anyway, she will only testify
on the civil liability. To abbreviate the proceedings, may we
respectfully stipulate from the counsel for the accused that should
all the accused be found guilty by the honorable court, the civil
liability be fixed, it representing actual expenses for the burial
expenses of Lorenzo Coro to P150,000.00.

Atty. Fontanilla:

We object to the manifestation, your Honor.

Fiscal Carisma:

Should the accused be found guilty.

Atty. Fontanilla:

We dont stipulate, your Honor.

Fiscal Carisma:

Thats why I am stating that should all the accused be found guilty. So, we
rather prove the actual expenses.

Court:

q Anyway, how many days was the wake of the deceased?

Witness:

a Ten (10) days, your Honor.

Court:

q Where was the funeral held?

Witness:

a We brought the body at the province at the house of my mother, your

Honor.

Atty. Fontanilla:

Your Honor, with the premise that they spent for the burial and
funeral, I think we can stipulate in the amount of ---

Fiscal Carisma:

P150,000.00

Atty. Fontanilla:

More or less, yes, we stipulate, your Honor.

Fiscal Carisma:

Thank you. So, we will no longer be presenting the witness.

[24]
[Emphasis and underscoring supplied.]

Hence, the requirement of proof in Article 2199 for the recovery of actual and
compensatory damages can be dispensed with having been stipulated by the defense
during trial.
As to the other civil liabilities, we uphold the appellate courts award of the moral
damages of P50,000 and civil indemnity of P50,000 in line with prevailing jurisprudence.
[25]

The penalty imposed is likewise proper. The special complex crime of robbery
with homicide is punished under Article 294 (as amended by Republic Act No. 7659) of
theRevised Penal Code, as amended, by reclusion perpetua to death. Article 63 of
the Revised Penal Code, as amended, states that when the law prescribes a penalty
consisting of two (2) indivisible penalties, and the crime is neither attended by mitigating
nor aggravating circumstances, the lesser penalty shall be imposed. Considering that
no modifying circumstance attended the commission of the crime, the RTC correctly
sentenced the appellants to suffer the penalty of reclusion perpetua.
WHEREFORE, the April 30, 2008 Decision of the Court of Appeals in CA-G.R.
HC-CR No. 02701 is AFFIRMED in toto.
With costs against the accused-appellants.
SO ORDERED.
SECOND DIVISION
[G.R. No. 140023. August 14, 2003]

RUDY LAO, petitioner, vs. STANDARD INSURANCE CO., INC., respondent.

DECISION
QUISUMBING, J.:
The instant petition seeks the reversal of the Court of Appeals Decision [1] dated
February 4, 1999, as well as its Resolution, [2] dated September 7, 1999, in CA-G.R. CV
No. 47227. The assailed decision dismissed petitioners appeal and the resolution
denied petitioners motion for reconsideration.
The original action was lodged before the Regional Trial Court of Iloilo City, Branch
25, as Civil Case No. 17045 for breach of contract and damages, as a result of the
insurance companys refusal of petitioners claim on the insurance policy of his truck
which figured in an accident during the effectivity of the policy.
The following are the antecedent facts:
Petitioner Rudy Lao is the owner of a Fuso truck with Plate No. FCG-538. The truck
was insured with respondent Standard Insurance Co., Inc. under Policy No. CV21074[3] for the maximum amount of P200,000 and an additional sum of P50,000 to
cover any damages that might be caused to his goods.
While the policy was in effect, an accident occurred. At around 8:00 p.m. of April 24,
1985, in Barangay Buhang, Jaro, Iloilo City, the insured truck bumped another truck,
with Plate No. FBS-917, also owned by petitioner Lao. The latter truck was running
ahead of the insured truck and was bumped from the rear. The insured truck sustained
damages estimated to be around P110,692, while the damage to the other truck and to
properties in the vicinity of the accident, were placed at P35,000 more or less.
Petitioner filed a claim with the insurance company for the proceeds from his
policy. However, the claim was denied by the insurance company on the ground that
when its adjuster went to investigate the matter, it was found that the driver of the
insured truck, Leonardo Anit, did not possess a proper drivers license at the time of the
accident. The restriction[4] in Leonardo Anits drivers license provided that he can only
drive four-wheeled vehicles weighing not more than 4,500 kgs. Since the insured truck
he was driving weighed more than 4,500 kgs., he therefore violated the authorized
driver clause[5] of the insurance policy. In addition, respondent cited the following
excerpts from the police blotter of the Iloilo INP, to wit:
C-UN-85 DAMAGE TO PROPERTY W/ PHY INJURIES R/ IMPRUDENCE
11:30 PM Sgt. A. Bernas informed this office that a collision took place at Brgy. Buhang,
Jaro, IC. Investigation conducted by Pat. Villahermosa, assisted by Lt. P. Baclaron (OD),

disclosed that at about 8:00 PM this date at the aforementioned place, a collision took
place between a truck (Hino) with Plate Nr FB[S] 917 owned by Rudy Lao and driven by
BOY GIDDIE Y COYEL, 38 yrs, a res. of Balasan, Iloilo, with License Nr DLR 1108142
and another truck with Plate Nr. FCG-538 owned by Rudy Lao and driver (sic) by
LEONARDO ANIT Y PANES, 33 yrs, a res. of Brgy Laya, Balasan, Iloilo with License Nr
1836482. (Emphasis supplied.)[6]
Petitioner claims that at the time of the accident, it was in fact another driver named
Giddie Boy Y Coyel who was driving the insured truck. Giddie Boy possessed a drivers
license authorizing him to drive vehicles such as the truck which weighed more than
4,500 kgs. As evidence, petitioner presented the Motor Vehicle Accident
Report[7] wherein the Investigating Officer, Pat. Felipe D. Villahermosa, stated that it was
Giddie Boy driving the insured truck and not Leonardo Anit. The said report was made
three days after the accident or on April 27, 1985. However, respondent insurance
company was firm in its denial of the claim.
Hence, petitioner filed the civil case before the RTC. After trial, the court disposed of
the case as follows:
WHEREFORE, premises considered, the Court finds that plaintiff lacks sufficient cause
of action against the defendant and hence ordered his case dismissed and further
orderes (sic) him to pay the defendant the following:
1) P20,000.00 as attorneys fees plus P500.00 for appearance fee; and
2) P50,000.00 as exemplary damages.
SO ORDERED.[8]
On appeal with the Court of Appeals, the RTC decision was affirmed. The petition
was dismissed and the motion for reconsideration was denied. The CA stated:
IN VIEW OF THE FOREGOING, the decision appealed from is hereby AFFIRMED.
Consequently, the complaint is DISMISSED for lack of merit.
SO ORDERED.[9]
In his petition for review now before us, petitioner cites the following as grounds
therefor:
A. THE HONORABLE COURT OF APPEALS AND THE LOWER COURT
RELIED MAINLY ON SECTION 44, RULE 130 OF THE RULES OF COURT
IN UPHOLDING THE ENTRY IN THE POLICE BLOTTER WHICH STATED
THAT THE DRIVER OF THE INSURED VEHICLE WAS LEONARDO ANIT Y

PANES, WHO WAS NOT AN AUTHORIZED DRIVER. UNDER THE SAID

SECTION 44, RULE 130 ITSELF HOWEVER, THE POLICE BLOTTER IS
MERELY A PRIMA FACIE EVIDENCE OF THE FACTS STATED THEREIN
WHICH MAY BE NULLIFIED BY OTHER EVIDENCE;[10]
B. PERCEPTION OF THE HONORABLE COURT OF APPEALS ON THE
DIMINISHED CREDIBILITY OF PAT. FELIPE VILLAHERMOSA, THE
TRAFFIC POLICE INVESTIGATOR, IS MISPLACED AND UNFOUNDED; [11]
C. THE DRIVER OF THE INSURED TRUCK WITH PLATE NR. FCG-538 WAS
GIDDIE BOY Y COYEL, AN AUTHORIZED DRIVER OF THE SAID TRUCK.
THE DRIVER OF THE OTHER TRUCK INVOLVED IN THE ACCIDENT
WITH PLATE NR. FBS-917 WAS LEONARDO ANIT Y PANES;[12]
D. THE HONORABLE COURT OF APPEALS MISAPPLIED ARTICLES 2232
AND 2208 OF THE NEW CIVIL CODE IN GRANTING EXEMPLARY
DAMAGES AND ATTORNEYS FEES TO RESPONDENT. UNDER
ARTICLES 2229 AND 2234 OF THE NEW CIVIL CODE, EXEMPLARY
DAMAGES CANNOT BE AWARDED IN THE ABSENCE OF AN AWARD
FOR MORAL, TEMPERATE, LIQUIDATED OR COMPENSATORY
DAMAGES;[13]
E. TESTIMONIES OF THE WITNESSES OF RESPONDENT NAMELY, SGT.
BERNAS, THE DESK OFFICER AND ROMEO GUIERGEN, INSURANCE
ADJUSTER, WERE INCONSISTENT AND UNRELIABLE;[14] and
F. THE HONORABLE COURT OF APPEALS UPHELD THE DECISION OF
THE LOWER COURT DESPITE GLARING MISAPPLICATION OF THE LAW
AND JURISPRUDENCE ESTABLISHED BY THIS HONORABLE SUPREME
COURT AS WELL AS CLEAR MISAPPREHENSION OF THE FACTS IN
THIS CASE.[15]
Three issues must be resolved: (1) The admissibility and probative value of the
police blotter as evidence; (2) The assessment of the credibility of witnesses; and (3)
The propriety and basis of the awards for exemplary damages and attorneys fees. Also
pertinent here is the factual issue of whether or not Leonardo Anit, an unauthorized
driver, was driving the insured truck at the time of the accident.
Petitioner assails the admissibility and evidentiary weight given to the police blotter,
as a basis for the factual finding of the RTC and the CA. He contends that the same
entry was belied by the Motor Vehicle Accident Report and testimony of the
investigating policeman himself, attesting that it was Giddie Boy Coyel, not Leonardo
Anit, who was driving the insured vehicle. [16]

Respondent avers that the same police report and testimony were of dubious
nature. Both trial and appellate courts noted that the report was made three days after
the accident and did not form part of the official police records. [17]

[18]

The police blotter was admitted under Rule 130, Section 44 of the Rules of Court.
Under the said rule, the following are the requisites for its admissibility:
(a) that the entry was made by a public officer, or by another person, specially
enjoined by law to do so;
(b) that it was made by the public officer in the performance of his duties, or by
such other person in the performance of a duty specially enjoined by law;
(c) that the public officer or other person had sufficient knowledge of the facts
by him stated, which must have been acquired by him personally or
through official information.[19]

We agree with the trial and appellate courts in finding that the police blotter was
properly admitted as they form part of official records. [20] Entries in police records made
by a police officer in the performance of the duty especially enjoined by law are prima
facie evidence of the fact therein stated, and their probative value may be either
substantiated or nullified by other competent evidence. [21] Although police blotters are of
little probative value, they are nevertheless admitted and considered in the absence of
competent evidence to refute the facts stated therein.
In this case, the entries in the police blotter reflected the information subject of the
controversy. Stated therein was the fact that Leonardo Anit was driving the insured truck
with plate number FCG-538. This is unlike People v. Mejia,[22] where we said that entries
in the police blotters should not be given undue significance or probative value, since
the Court there found that the entries in question are sadly wanting in material
particulars.
Furthermore, in this case the police blotter was identified and formally offered as
evidence. The person who made the entries was likewise presented in court; he
identified and certified as correct the entries he made on the blotter. The information
was supplied to the entrant by the investigating officer who did not protest about any
inaccuracy when the blotter was presented to him. No explanation was likewise given
by the investigating officer for the alleged interchange of names.
Petitioner also assails the credence given by the trial court to the version of the
respondents vis--vis the testimonies of the witnesses. Time and again we have
reiterated the settled doctrine that great weight, and even finality, is given to the factual
conclusions of the Court of Appeals which affirm those of the trial courts. [23] We find on
this score no reason to overturn such conclusions.

On the issue of damages, we agree with petitioner that the award of exemplary
damages was improper. In Tiongco v. Atty. Deguma[24] we held that the entitlement to
the recovery of exemplary damages must be shown. In the case at bar, respondent
have not shown sufficient evidence that petitioner indeed schemed to procure the
dubious documents and lied through his teeth to establish his version of the facts. What
was found was that the document he presented was inadmissible, and its contents were
dubious. However, no proof was adduced to sufficiently establish that it came to his
hands through his employment of underhanded means. In Tiongco, we further stated:
Although exemplary damages cannot be recovered as a matter of right, they also need
not be proved. But a complainant must still show that he is entitled to moral, temperate
or compensatory damages before the court may consider the question of whether or not
exemplary damages should be awarded.[25]
Thus, it was error for the courts below to award exemplary damages in the absence
of any award for moral, temperate or compensatory damages.
The award of attorneys fees must also be deleted. Such award was given in its
extraordinary concept as indemnity for damages to be paid by the losing party to the
prevailing party.[26]But it was not sufficiently shown that petitioner acted maliciously in
instituting the claim for damages. Perforce, the award of attorneys fees was improper.
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals are
AFFIRMED, with the MODIFICATION that the award of exemplary damages and
attorneys fees is hereby DELETED. No pronouncement as to costs.
SO ORDERED.
SECOND DIVISION
[G.R. No. 108433. October 15, 1996]
WALLEM MARITIME SERVICES, INC. and WALLEM SHIPMANAGEMENT
LTD., petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and
JOSELITO V. MACATUNO, respondents.
DECISION
ROMERO, J.:
This petition for certiorari seeks to annul and set aside the Resolution [1] of the
National Labor Relations Commission (NLRC) affirming the Decision [2] of the Philippine
Overseas Employment Administration (POEA) which disposed of POEA Case No.
(M)89-09-865 as follows:

WHEREFORE, in view of the foregoing, respondents Wallem Maritime Services, Inc.

and Wallem Shipmanagement Ltd. are hereby ordered jointly and severally, to pay
complainant the following in Philippine currency at the prevailing rate of exchange at the
time of payment:
a) THREE HUNDRED THREE US DOLLARS
(US$303.00) representing salary for the month of June 1989;
b) THREE THOUSAND FIFTY FOUR US DOLLARS
(US$3,054.00) representing salaries for the unexpired portion of the
contract (July-December 1989); and
c) ONE HUNDRED SIX & 50/100 US DOLLARS
(US$106.50) or five percent (5%) of the total award as and by way of
attorneys fees.
The claim against Prudential Guarantee and Assurance Inc. is dismissed for lack of
merit.
SO ORDERED.
Private respondent Joselito V. Macatuno was hired by Wallem Shipmanagement
Limited thru its local manning agent, Wallem Maritime Services, Inc., as an able-bodied
seaman on board the M/T Fortuna, a vessel of Liberian registry. Pursuant to the contract
of employment, private respondent was employed for ten (10) months covering the
period February 26, 1989 until December 26, 1989 with a monthly salary of two hundred
seventy-six US dollars (US $276); hourly overtime rate of one dollar and seventy-two
cents (US $1.72), and a monthly tanker allowance of one hundred twenty-seven dollars
and sixty cents (US $127.60), with six (6) days leave with pay for each month.
On June 24, 1989, while the vessel was berthed at the port of Kawasaki, Japan, an
altercation took place between private respondent and fellow Filipino crew member,
Julius E. Gurimbao, on the one hand, and a cadet/apprentice officer of the same
nationality as the captain of the vessel on the other hand. The master entered the
incident in the tankers logbook.
As a consequence, private respondent and Gurimbao were repatriated to
the Philippines where they lost no time in lodging separate complaints for illegal
dismissal with the POEA.[3]According to the affidavit private respondent executed before
a POEA administering officer, the following facts led to the filing of the complaint.

At about 5:50 a.m. of June 24, 1989, private respondent was on duty along with
Gurimbao, checking the manifold of the vessel and looking for oil leakages, when a
cadet/apprentice who was of the same nationality as the vessels captain (Singh),
approached them. He ordered Gurimbao to use a shovel in draining the water which,
mixed with oil and dirt, had accumulated at the rear portion of the upper deck of the
vessel.
Gurimbao explained to the cadet/apprentice that throwing dirty and oily water
overboard was prohibited by the laws of Japan; in fact, port authorities were roaming
and checking the sanitary conditions of the port. The cadet/apprentice got mad and,
shouting, ordered Gurimbao to get a hose and siphon off the water. To avoid trouble,
Gurimbao used a shovel in throwing the dirty water into the sea.
Having finished his job, Gurimbao complained to private respondent about the
improper and unauthorized act of the cadet/apprentice. The two went to the
cadet/apprentice who was idly standing in a corner. They reminded him that as a mere
apprentice and not an officer of the vessel, he had no right whatsoever to order around
any member of the crew. However, the cadet/apprentice reacted violently - shouting
invectives and gesturing as if challenging the two to a fight. To prevent him from
intimidating them, private respondent pushed twice the cadet/apprentices chest while
Gurimbao mildly hit his arm. Frantic and shouting, the cadet/apprentice ran to the
captain who happened to witness the incident from the cabins window.
The captain summoned private respondent and Gurimbao. With their bosun (head
of the deck crew), they went to the captains cabin. The captain told them to pack up
their things as their services were being terminated. They would disembark at the next
port, the Port of Ube, from where they would be flown home to the Philippines, the
repatriation expenses to be shouldered by them. The two attempted to explain their side
of the incident but the captain ignored them and firmly told them to go home.
Before disembarking, they were entrusted by the bosun with a letter of their fellow
crew members, addressed to Capt. Dio, attesting to their innocence. At the Port of Ube,
an agent of the company handed them their plane tickets and accompanied them the
following day to the Fukoka Airport where they boarded a Cathay Pacific airplane bound
for Manila.
A few days after their arrival in Manila or on July 1, 1989, the two gave the letter to
Capt. Dio and conferred with him and Mr. James Nichols. The latter told private
respondent that they could not secure a reimbursement of their repatriation expenses
nor could they get their salaries for the month of June. Private respondent, in a letter
addressed to Capt. Dio, asked for a reconsideration of their dismissal but the latter did
not respond. Frustrated, private respondent sought the assistance of a lawyer who
wrote Wallem a demand letter dated August 28, 1989but the same was ignored.[4]

Petitioners, defending their position, alleged that the incident was not the first
infraction committed by the two. As shown by the logbook, on June 19, 1989, while the
vessel was docked in Batangas, they left it during working hours without asking
permission. For this offense, they were given a warning. On June 27, 1989 (sic), while
the vessel was anchored at the Port of Kawasaki, Japan, they assaulted the officer on
watch for the day, Mr. V.S. Sason. The three were mustered and it was found that
Sason was attacked with a spanner without provacition (sic). The two were severely
warned that they will be dealt according to the rules and regulation of their contact of
employment (sic). When the vessel was about to sail that day, the two went ashore
inspite of the warning given them. They were arrested by Japanese authorities but the
vessels departure was delayed for five (5) hours. The agency in Manila was informed
that their wages should be settled after deducting recoveries or fines and air fare. Their
dismissal from the service was also recommended.[5]
In his aforementioned decision of September 14, 1990 finding private respondents
dismissal to be illegal, POEA Deputy Administrator Manuel G. Imson held:
We find complainants dismissal to be without just and valid cause. We cannot give
much weight and credence to the certified true copy of the official logbook (Annex 1,
answer) because the alleged entries therein were only handpicked and copied from the
official logbook of the vessel M/V Fortuna. There is no way of verifying the truth of these
entries and whether they actually appear in the log entries for the specific dates
mentioned. The pages in the official logbook where these entries appear should have
been the ones reproduced to give the same a taint of credence. Moreover, no
documentary evidence was submitted to support the alleged official logbook, like the
Masters report and the police report or any report by the Japanese authorities by reason
of their arrest. Finally, the copy of the alleged official logbook was not properly
authenticated. The authentication is necessary specially so since this document is the
only piece of evidence submitted by respondents.
Granting that the entries in the logbook are true, a perusal thereof will readily show that
complainant was not afforded due process. The warnings allegedly given to
complainant were not submitted in evidence. Likewise, no investigation report was
presented to prove that complainant was given the opportunity to air his side of the
incident.
It is also noteworthy to mention that complainant was able to describe with particularity
the circumstances which led to his misunderstanding with the cadet/apprentice and
which we believe is not sufficient to warrant his dismissal. [6]
As stated above, the NLRC affirmed the decision of the POEA, adopting as its own
the latters findings and conclusions. Hence, the instant petition contending that both the

POEA and the NLRC gravely abused their discretion in finding that private respondent
was illegally terminated from his employment.
As with G.R. No. 107865, where herein petitioners likewise questioned the NLRC
decision affirming that of POEA Case No. (M) 88-11-1078 finding the dismissal from
employment of Gurimbao to be illegal,[7] the Court sees no merit in the instant petition.
An employer may dismiss or lay off an employee only for just and authorized
causes enumerated in Articles 282 and 283 of the Labor Code. However, this basic and
normal prerogative of an employer is subject to regulation by the State in the exercise of
its paramount police power inasmuch as the preservation of lives of citizens, as well as
their means of livelihood, is a basic duty of the State more vital them the preservation of
corporate profits.[8] Ones employment, profession, trade or calling is a property right
within the protection of the constitutional guaranty of due process of law.[9]
We agree with petitioners that the ship captains logbook is a vital evidence as
Article 612 of the Code of Commerce requires him to keep a record of the decisions he
had adopted as the vessels head. Thus, in Haverton Shipping Ltd. v. NLRC,[10] the Court
held that a copy of an official entry in the logbook is legally binding and serves as an
exception to the hearsay rule.
However, the Haverton Shipping ruling does not find unqualified application in the
case at bar. In said case, an investigation of the incident which led to the seamans
dismissal was conducted before he was dismissed. [11] Consequently, the facts appearing
in the logbook were supported by the facts gathered at the investigation. In this case,
because no investigation was conducted by the ship captain before repatriating private
respondent, the contents of the logbook have to be duly identified and authenticated lest
an injustice result from a blind adoption of such contents which merely serve as prima
facie evidence of the incident in question.[12]
Moreover, what was presented in the Haverton Shipping case was a copy of the
official entry from the logbook itself. In this case, petitioners did not submit as evidence
to the POEA the logbook itself, or even authenticated copies of pertinent pages thereof,
which could have been easily xeroxed or photocopied considering the present
technology on reproduction of documents. [13] What was offered in evidence was merely
a typewritten collation of excerpts from what could be the logbook[14] because by their
format, they could have been lifted from other records kept in the vessel in accordance
with Article 612 of the Code of Commerce.[15]
Furthermore, the alleged entry in the logbook states, as regards the June 27, 1989
(sic) incident, as follows:
KAWASAKI KAWASAKI This is to place on record that at the time, date

27.6.89 and place mentioned Mr. J.V. MACATUNO (Sr. No.

147) and Mr. J.E.
GURIMBAO (Sr No.
156) attacked and
assaulted
apprentice
officer
Mr. V.S. SASON
while on duty. All
three
were
mustered and it was
found
that
Mr.
SASON
was
attacked with a
spanner
without
provacition
(sic). Both
the
seaman (sic) have
been
severely
warned that they
will
be
dealt
according to the
rules and regulation
of their contract of
employment.[16]
Under the Table of Offenses and Corresponding Administrative Penalties appended
to the contract of employment entered into by petitioners and private respondent, the
offense described by the logbook entry may well fall under insubordination and may
constitute assaulting a superior officer with the use of deadly weapon punishable with
dismissal[17] if the victim is indeed a superior officer. However, an apprentice officer
cannot be considered a superior officer. An apprentice is a person bound in the form of
law to a master, to learn from him his art, trade, or business, and to serve him during the
time of his apprenticeship. [18] In other words, Mr. V.S. Sason was merely a learner or a
trainee and not a regular officer on board M/T Fortuna.
In this regard, it should be clarified that this Court does not tolerate nor sanction
assault in any form. Physical violence against anyone at any time and any place is
reprehensible.However, in cases such as this, where a persons livelihood is at stake,
strict interpretation of the contract of employment in favor of the worker must be
observed to affirm the constitutional provision on protection to labor.
Moreover, the aforequoted entry in the logbook is so sketchy that, unsupported by
other evidence, it leaves so many questions unanswered. Although private respondent

candidly admitted in his affidavit having hit Sason on the chest twice, he did not admit
using a spanner. The conflicting versions of the incident rendered it impossible to
determine whether it was private respondent or Gurimbao who wielded said tool. In the
absence of a more detailed narration in the logbook entry of the circumstances
surrounding the alleged assault, the same cannot constitute a valid justification to
terminate private respondents employment. [19]
Hence, as the typewritten excerpts from the logbook were the only pieces of
evidence presented by petitioners to support the dismissal of private respondent, have
no probative value at all, petitioners cause must fail. Their failure to discharge the onus
probandi properly may have no other result than a finding that the dismissal of private
respondent is unjustified.[20]
Petitioners failure to substantiate the grounds for a valid dismissal was aggravated
by the manner by which the employment of private respondent was terminated. It must
be borne in mind that the right of an employer to dismiss an employee is to be
distinguished from and should not be confused with the manner in which such right is
exercised. Dismissal from employment must not be effected abusively and oppressively
as it affects ones person and property. Thus, Batas Pambansa Blg. 130, amending
paragraph (b) of Article 278 of the Labor Code, imposed as a condition sine qua
non that any termination of employment under the grounds provided in Article 283 must
be done only after notice and formal investigation have been accorded the supposed
errant worker.[21]
That the workers involved in the incident were mustered or convened thereafter by
the captain is inconsequential. It is insufficient compliance with the law which requires,
as a vital component of due process, observance of the twin requirements of notice and
hearing before dismissing an employee. As regards the notice requirement, the Court
has stated:
On the issue of due process . . ., the law requires the employer to furnish the worker
whose employment is sought to be terminated a written notice containing a statement of
the cause or causes for termination and shall afford him ample opportunity to be heard
and to defend himself with the assistance of a representative. Specifically, the employer
must furnish the worker with two (2) written notices before termination of employment
can be legally effected: (a) notice which apprises the employee of the particular acts or
omissions for which his dismissal is sought; and (b) the subsequent notice which
informs the employee of the employers decision to dismiss him. (Underscoring
supplied.)[22]
Neither is the ship captains having witnessed the altercation an excuse for
dispensing with the notice and hearing requirements. Serving notice to private

respondent under the circumstances cannot be regarded as an absurdity and

superfluity.[23]
ON ALL THE FOREGOING CONSIDERATIONS, the petition at bar is DISMISSED
and the Resolution of respondent National Labor Relations Commission is hereby
AFFIRMED in toto.
SO ORDERED.
THIRD DIVISION
NORTHWEST AIRLINES, INC.,
Petitioner,

G.R. No. 155550

Present:

- versus -

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CORONA,*
NACHURA, and
REYES, JJ.
Promulgated:

STEVEN P. CHIONG,
Respondent.

January 31, 2008

x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court
seeking the reversal of the Court of Appeals (CA) Decision [1] in CA-G.R. CV No.
50308[2]which affirmed in toto the Regional Trial Court (RTC) Decision[3] holding
petitioner Northwest Airlines, Inc. (Northwest) liable for breach of contract of carriage.

On March 14, 1989, Philimare Shipping and Seagull Maritime Corporation (Philimare),
as the authorized Philippine agent of TransOcean Lines (TransOcean), hired
respondent Steven Chiong as Third Engineer of TransOceans vessel M/V Elbia at
the San Diego, California Port. Under the service crew agreement, Chiong was
guaranteed compensation at a monthly salary of US$440.00 and a monthly overtime
pay of US$220.00, or a total of US$7,920.00 for one year.
Subsequently, on March 27, 1989, Philimare dispatched a Letter of Guarantee to
CL Hutchins & Co., Inc., TransOceans agent at the San Diego Port, confirming Chiongs
arrival thereat in time to board the M/V Elbia which was set to sail on April 1,
1989 (California, United States time). For this purpose, Philimare purchased for Chiong
a Northwest plane ticket for San Diego, California with a departure date of April 1,
1989 from Manila. Ten (10) days before his scheduled departure, Chiong fetched his
entire family from Samar and brought them to Manila to see him off at the airport.
On April 1, 1989, Chiong arrived at the Manila International Airport [4] (MIA), at
about 6:30 a.m., three (3) hours before the scheduled time of departure. Marilyn Calvo,
Philimares Liaison Officer, met Chiong at the departure gate, and the two proceeded to
the Philippine Coast Guard (PCG) Counter to present Chiongs seaman service record
book for clearance. Thereafter, Chiongs passport was duly stamped, after complying
with government requirements for departing seafarers.
Calvo remained at the PCG Counter while Chiong proceeded to queue at the Northwest
check-in counter. When it was Chiongs turn, the Northwest personnel [5] informed him
that his name did not appear in the computers list of confirmed departing passengers.
Chiong was then directed to speak to a man in barong standing outside Northwests
counters from whom Chiong could allegedly obtain a boarding pass. Posthaste, Chiong
approached the man in barong who demanded US$100.00 in exchange therefor.
Without the said amount, and anxious to board the plane, Chiong queued a number of
times at Northwests Check-in Counter and presented his ticket. However, the Northwest
personnel at the counter told him to simply wait and that he was being a pest.
Frustrated, Chiong went to Calvo at the PCG counter and inquired if she had money so
he could obtain a boarding pass from the man in barong. Calvo, who already saw that
something was amiss, insisted that Chiongs plane ticket was confirmed and as such, he
could check-in smoothly and board the plane without shelling out US$100.00 for a

boarding pass. Ultimately, Chiong was not allowed to board Northwest Flight No. 24
bound for San Diego that day and, consequently, was unable to work at the M/V
Elbia byApril 1, 1989 (California, U.S.A. time).
It appears that Chiongs name was crossed out and substituted with W. Costine in
Northwests Air Passenger Manifest.[6]
In a letter dated April 3, 1989, Chiongs counsel demanded as recompense: (1) the
amount equivalent to Chiongs salary under the latters Crew Agreement [7] with
TransOcean; (2)P15,000.00 for Chiongs expenses in fetching and bringing his family
from Samar to Manila; (3) P500,000.00 as moral damages; and (4) P500,000.00 as
legal fees.[8]
Northwest demurred. Thus, on May 24, 1989, Chiong filed a Complaint for breach of
contract of carriage before the RTC. Northwest filed a Motion to Dismiss[9] the complaint
citing the trial courts lack of jurisdiction over the subject matter of the case, but the trial
court denied the same.[10]
In its Answer,[11] Northwest contradicted the claim that it breached its contract of carriage
with Chiong, reiterating that Chiong had no cause of action against it because per its
records, Chiong was a no-show passenger for Northwest Flight No. 24 on April 1, 1989.
In the RTCs Pre-trial Order[12] based on the parties respective Pre-trial Briefs, [13] the
triable issues were limited to the following:
(a) Whether [Chiong] was bumped-off by [Northwest] from Flight NW 24 or
whether [Chiong] no-showed for said flight.
(b) If defendant is found guilty of having breached its contract of carriage
with plaintiff, what damages are awardable to plaintiff and how much.

In the course of proceedings, Northwest, on September 14, 1990, filed a separate

criminal complaint for False Testimony[14] against Chiong based on the latters testimony
that he did not leave the Philippines after April 1, 1989 contrary to the notations in his
seaman service record book that he had left the country on April 17, 1989, and returned
on October 5 of the same year. Chiong did not participate in the preliminary

investigation; thus, on December 14, 1990, the City Prosecutor of Manila filed an
Information against Chiong with the RTC Manila, Branch 54, docketed as Criminal Case
No. 90-89722.
In the meantime, after a flurry of motions filed by Northwest in the civil case were
denied by the RTC, Northwest filed a Petition for Certiorari before the CA imputing
grave abuse of discretion to the RTC. [15] Correlatively, Northwest moved for a
suspension of the proceedings before the trial court. However, both the Petition
for Certiorari and Motion for Suspension of the proceedings were denied by the CA and
RTC, respectively.[16]
After trial, the RTC rendered a Decision finding preponderance of evidence in
favor of Chiong, and holding Northwest liable for breach of contract of carriage. The
RTC ruled that the evidence adduced by the parties supported the conclusion that
Chiong was deliberately prevented from checking-in and his boarding pass unjustifiably
withheld to accommodate an American passenger by the name of W. Costine.
The dispositive portion of the RTC decision reads:
WHEREFORE, premises considered, in consideration of all the
foregoing, judgment is hereby rendered, ordering the defendant liable to
plaintiff in damages by reason of the latters inability to take defendants
NW Flight No. 24 on April 1, 1989, for the following amounts:
1) U.S.$8,447.00[17] or its peso equivalent at the time of finality of
this judgment with legal interests until fully paid, representing
compensatory damages due to plaintiffs loss of income for
one (1) year as a direct result of defendants breach of
contract of carriage;
2) P15,000.00, Philippine Currency, representing plaintiffs actual
incurred damages as a consequence of his failure to avail of
defendants Flight No. 24 on April 1, 1989;
3) P200,000.00, Philippine Currency, representing moral damages
suffered and sustained by the plaintiff as a result of
defendants breach of contract of carriage;
4) P200,000.00, Philippine Currency, representing exemplary or
punitive damages due to plaintiff from defendant, owing to

the latters breach of contract of carriage with malice and

fraud; and
5) P200,000.00, Philippine Currency, for and as attorneys fees, plus
costs of suit.
SO ORDERED.

On appeal, the CA affirmed in toto the ruling of the RTC. Identical to the RTCs
findings, those of the CA were as follows: on April 1, 1989, Chiong was at the MIA three
hours before the 10:15 a.m. departure time for Northwest Flight No. 24. Contrary to
Northwests claim that Chiong was a no-show passenger, the CA likewise concluded, as
the RTC did, that Chiong was not allowed to check-in and was not issued a boarding
pass at the Northwest check-in counter to accommodate a certain W. Costine. As for
Northwests defense that Chiong had left the country after April 1, 1989 and worked
for M/V Elbia, the CA ruled that Northwests failure to raise this defense in its Answer or
Motion to Dismiss is equivalent to a waiver thereof. The CA declared that, in any event,
Northwest failed to present any evidence to prove that Chiong had worked under the
original crew agreement.
Hence, this recourse.
Northwest ascribes grievous errors to the CA when the appellate court ruled that:
(1) Northwest breached the contract of carriage with Chiong who was present at the
MIA on April 1, 1989 to board Northwests Flight No. 24; (2) As a result of the breach,
Northwest is liable to Chiong for compensatory, actual, moral and exemplary damages,
attorneys fees, and costs of suit; and (3) Northwests Exhibits 2 and 3, the Flight
Manifest and the Passenger Name Record, respectively, were hearsay evidence and
ought to be excluded from the records.
The petition must fail.
We are in complete accord with the common ruling of the lower courts that Northwest
breached the contract of carriage with Chiong, and as such, he is entitled to
compensatory, actual, moral and exemplary damages, attorneys fees and costs of suit.
Northwest contends that Chiong, as a no-show passenger on April 1, 1989, already
defaulted in his obligation to abide by the terms and conditions of the contract of
carriage;[18]and thus, Northwest could not have been in breach of its reciprocal obligation

to transport Chiong. In sum, Northwest insists that Chiongs testimony is a complete

fabrication, supposedly demonstrated by the following: (1) Chiongs seaman service
record book reflects that he left the Philippines after April 1, 1989, specifically on April
17, 1989, to board the M/V Elbia, and was discharged therefrom upon his personal
request; (2) the Information filed against Chiong for False Testimony; and (3) the Flight
Manifest and the Passenger Name Record both indicate that he was a no-show
passenger.
We are not convinced.
The records reveal that Chiong, as plaintiff in the trial court, satisfied the burden of proof
required in civil cases, i.e., preponderance of evidence. Section 1 of Rule 133 provides:
SECTION 1. Preponderance of evidence, how determined. In civil cases,
the party having the burden of proof must establish his case by a
preponderance of evidence. In determining where the preponderance or
superior weight of evidence on the issues involved lies, the court may
consider all the facts and circumstance of the case, the witnesses manner
of testifying, their intelligence, their means and opportunity of knowing the
facts to which they are testifying, the nature of the facts to which they
testify, the probability or improbability of their testimony, their interest or
want of interest, and also their personal credibility so far as the same may
legitimately appear upon the trial. The court may also consider the number
of witnesses, though preponderance is not necessarily with the greater
number.

In this regard, the Court notes that, in addition to his testimony, Chiongs evidence
consisted of a Northwest ticket for the April 1, 1989 Flight No. 24, Chiongs passport and
seaman service record book duly stamped at the PCG counter, and the testimonies of
Calvo, Florencio Gomez,[19] and Philippine Overseas Employment and Administration
(POEA) personnel who all identified the signature and stamp of the PCG on Chiongs
passport.
We have scoured the records, and found no reason to depart from the well-settled rule
that factual findings of the lower courts deserve the utmost respect and are not to be
disturbed on appeal.[20] Indeed, Chiongs Northwest ticket for Flight No. 24 on April 1,
1989, coupled with the PCG stamps on his passport showing the same date, is direct
evidence that he was present at MIA on said date as he intended to fly to the United

States on board that flight. As testified to by POEA personnel and officers, the PCG
stamp indicates that a departing seaman has passed through the PCG counter at the
airport, surrendered the exit pass, and complied with government requirements for
departing seafarers. Calvo, Philimares liaison officer tasked to assist Chiong at the
airport, corroborated Chiongs testimony on the latters presence at the MIA and his
check-in at the PCG counter without a hitch. Calvo further testified that she purposely
stayed at the PCG counter to confirm that Chiong was able to board the plane, as it was
part of her duties as Philimares liaison officer, to confirm with their principal,
TransOcean in this case, that the seafarer had left the country and commenced travel to
the designated port where the vessel is docked. [21] Thus, she had observed that Chiong
was unable to check-in and board Northwest Flight No. 24, and was actually being
given the run-around by Northwest personnel.
It is of no moment that Chiongs witnesses who all corroborated his testimony on his
presence at the airport on, and flight details for, April 1, 1989, and that he was
subsequently bumped-off are, likewise, employees of Philimare which may have an
interest in the outcome of this case. We intoned in Philippine Airlines, Inc. v. Court of
Appeals,[22] thus:
(T)his Court has repeatedly held that a witness relationship to the
victim does not automatically affect the veracity of his or her
testimony. While this principle is often applied in criminal cases, we deem
that the same principle may apply in this case, albeit civil in nature. If a
witness relationship with a party does not ipso facto render him a
biased witness in criminal cases where the quantum of evidence
required is proof beyond reasonable doubt, there is no reason why
the same principle should not apply in civil cases where the quantum
of evidence is only preponderance of evidence.

The foregoing documentary and testimonial evidence, taken together, amply

establish the fact that Chiong was present at MIA on April 1, 1989, passed through the
PCG counter without delay, proceeded to the Northwest check-in counter, but when he
presented his confirmed ticket thereat, he was not issued a boarding pass, and
ultimately barred from boarding Northwest Flight No. 24 on that day.
In stark contrast is Northwests bare-faced claim that Chiong was a no-show passenger,
and was scheduled to leave the country only on April 17, 1989. As previously

discussed, the records belie this assertion. It is also noteworthy that Northwest did not
present any evidence to support its belated defense that Chiong departed from
the Philippines on April 17, 1989 to work as Third Engineer on board M/V Elbia under
the original crew agreement.
It is true that Chiongs passport and seaman service record book indicate that he had left
the country on April 17, 1989 and come back on October 5 of the same year. However,
this evidence fails to debunk the facts established to have transpired on April 1, 1989,
more particularly, Chiongs presence at the airport and his subsequent bumping-off by
Northwest despite a confirmed ticket. Although initially, the burden of proof was with
Chiong to prove that there was a breach of contract of carriage, the burden of evidence
shifted to Northwest when Chiong adduced sufficient evidence to prove the facts he had
alleged. At that point, Northwest had the burden of going forward [23] to controvert
Chiongs prima facie case. As the party asserting that Chiong was a no-show passenger,
Northwest then had the burden of evidence to establish its claim. Regrettably,
Northwest failed to do so.
Furthermore, it has not escaped our attention that Northwest, despite the declaration in
its Pre-Trial Brief, did not present as a witness their check-in agent on that contentious
date.[24] This omission was detrimental to Northwests case considering its claim that
Chiong did not check-in at their counters on said date. It simply insisted that Chiong was
a no-show passenger and totally relied on the Flight Manifest, which, curiously, showed
a horizontal line drawn across Chiongs name, and the name W. Costine written above
it. The reason for the insertion, or for Chiongs allegedly being a no-show passenger, is
not even recorded on the remarks column of the Flight Manifest beside the Passenger
Name column. Clearly, the categorical declaration of Chiong and his other witnesses,
coupled with the PCG stamp on his passport and seaman service record book, prevails
over Northwests evidence, particularly the Flight Manifest. Thus, we are perplexed why,
despite the evidence presented by Chiong, and the RTCs specific order to Northwests
counsel to present the person(s) who prepared the Flight Manifest and Passenger
Name Record for a proper identification of, and to testify on, those documents,
Northwest still insisted on presenting Gonofredo Mendoza and Amelia Meris who were,
admittedly, not competent to testify thereon.[25]
In its desperate attempt to evade liability for the breach, Northwest claims that Chiong
worked at M/V Elbia when he left the Philippines on April 17, 1989. The argument was
not only belatedly raised, as we have repeatedly stated, but is off-tangent.

On this point, we uphold the RTCs and CAs ruling that the failure of Northwest to raise
the foregoing defense in its Motion to Dismiss or Answer constituted a waiver thereof.
Section 1, Rule 9 of the Rules of Court provides:
SECTION 1. Defenses and objections not pleaded. Defenses and
objections not pleaded either in a motion to dismiss or in the answer
are deemed waived. However, when it appears from the pleadings or the
evidence on record that the court has no jurisdiction over the subject
matter, that there is another action pending between the same parties for
the same cause, or that the action is barred by a prior judgment or by
statute of limitations, the court shall dismiss the claim. (Emphasis
supplied)

Similarly, Section 8, Rule 15 of the Rules of Court reads:

SECTION 8. Omnibus Motion. Subject to the provisions of section 1 of
Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall
include all objections then available, and all objections not so included
shall be deemed waived.

Moreover, Northwest paints a scenario that ostensibly transpired on a different

date. Even if Chiong left the Philippines on April 17, 1989, it would not necessarily prove
that Chiong was a no-show on April 1, 1989. Neither does it negate the already
established fact that Chiong had a confirmed ticket for April 1, 1989, and first passed
through the PCG counter without delay, then reached and was at the Northwest checkin counters on time for the scheduled flight.
Essentially, Northwest argues that Chiong was a no-show passenger on two (2)
separate occasions, March 28 and April 1, 1989 because he was actually scheduled to
depart for the US on April 17, 1989 as ostensibly evidenced by his passport and
seaman record book. Had this new matter alleged been proven by Northwest, it would
prevent or bar recovery by Chiong. Unfortunately, Northwest was unsuccessful in
proving not only the no-show claim, but that Chiong, likewise, worked under the original
crew agreement.

Northwest likewise insists now that there is a pending criminal case for False Testimony
against Chiong that a falsified part of Chiongs testimony would indicate the falsity of his
entire testimony, consistent with the falsus in uno, falsus in omnibus[26] doctrine.
Following Northwests flawed logic, this would invariably lead to the conclusion that the
corroborating testimonies of Chiongs witnesses are also false.
The legal maxim falsus in uno, falsus in omnibus, cited by Northwest, is not a positive
rule of law and is not strictly applied in this jurisdiction. Before this maxim can be
applied, the witness must be shown to have willfully falsified the truth on one or more
material points. The principle presupposes the existence of a positive testimony on a
material point contrary to subsequent declarations in the testimony. However, the
records show that Chiongs testimony did not contain inconsistencies on what occurred
on April 1, 1989. Yet, Northwest never even attempted to explain or impugn the
evidence that Chiong passed through the PCG counter on April 1, 1989, and that his
passport was accordingly stamped, obviously for purposes of his departure on that day.
As to the criminal case, it is well to note that there is no final determination, as
yet, of Chiongs guilt by the courts. But even if Chiong is adjudged guilty, it will have little
effect on the outcome of this case. As we held in Leyson v. Lawa:[27]
The testimony of a witness must be considered in its entirety instead of in
truncated parts. The technique in deciphering a testimony is not to
consider only its isolated parts and anchor a conclusion on the basis of
said parts. In ascertaining the facts established by a witness, everything
stated by him on direct, cross and redirect examinations must be
calibrated and considered.
It must be stressed that facts imperfectly or erroneously stated in answer
to one question may be supplied or explained as qualified by his answer to
other question. The principle falsus in uno, falsus in omnibus is not strictly
applied in this jurisdiction. The doctrine deals only with the weight of
evidence and is not a positive rule of law, and the same is not an inflexible
one of universal application. The testimony of a witness can be believed
as to some facts and disbelieved as to others:
xxxx
Professor Wigmore gives the following enlightening commentary:

It may be said, once for all, that the maxim is in itself

worthless first, in point of validity, because in one form it
merely contains in loose fashion a kernel of truth which no
one needs to be told, and in the others, it is absolutely false
as a maxim of life; and secondly, in point of utility, because it
merely tells the jury what they may do in any event, not what
they must do or must not do, and therefore it is a superfluous
form of words. It is also in practice pernicious, first, because
there is frequently a misunderstanding of its proper force,
and secondly, because it has become in the hands of many
counsel a mere instrument for obtaining new trials upon
points wholly unimportant in themselves.

From the foregoing disquisition, the ineluctable conclusion is that Northwest breached
its contract of carriage with Chiong.
Time and again, we have declared that a contract of carriage, in this case, air transport,
is primarily intended to serve the traveling public and thus, imbued with public interest.
The law governing common carriers consequently imposes an exacting standard of
conduct. As the aggrieved party, Chiong only had to prove the existence of the contract
and the fact of its non-performance by Northwest, as carrier, in order to be awarded
compensatory and actual damages.
We reiterate that Northwest failed to prove its claim that Chiong worked on M/V
Elbia from April 17 to October 5, 1989 under the original crew agreement. Accordingly,
we affirm the lower courts finding on Chiongs entitlement to actual and compensatory
damages.
We, likewise, uphold the findings of both courts on Northwests liability for moral and
exemplary damages, and attorneys fees.
Under Article 2220 of the Civil Code of the Philippines, an award of moral damages, in
breaches of contract, is in order upon a showing that the defendant acted fraudulently or
in bad faith. Bad faith does not simply connote bad judgment or negligence. [28] It imports
a dishonest purpose or some moral obliquity and conscious doing of a wrong. [29] It
means breach of a known duty through some motive, interest or ill will that partakes of
the nature of fraud.[30] Bad faith is in essence a question of intention. [31]

In the case at bench, the courts carefully examined the evidence as to the conduct and
outward acts of Northwest indicative of its inward motive. It is borne out by the records
that Chiong was given the run-around at the Northwest check-in counter, instructed to
deal with a man in barong to obtain a boarding pass, and eventually barred from
boarding Northwest Flight No. 24 to accommodate an American, W. Costine, whose
name was merely inserted in the Flight Manifest, and did not even personally check-in
at the counter.[32]
Under the foregoing circumstances, the award of exemplary damages is also correct
given the evidence that Northwest acted in an oppressive manner towards Chiong. [33]
As for the award of attorneys fees, while we recognize that it is sound policy not to set a
premium on the right to litigate,[34] we sustain the lower courts award thereof.
Attorneys fees may be awarded when a party is compelled to litigate or incur expenses
to protect his interest,[35] or where the defendant acted in gross and evident bad faith in
refusing to satisfy the plaintiffs plainly valid, just and demandable claim. [36] In the case at
bench, Northwest deliberately breached its contract of carriage with Chiong and then
repeatedly refused to satisfy Chiongs valid, just and demandable claim. This unjustified
refusal constrained Chiong to not only lose income under the crew agreement, but to
further incur expenses and exert effort for almost two (2) decades in order to protect his
interests and vindicate his right. Therefore, this Court deems it just and equitable to
grant Chiong P200,000.00 as attorneys fees. The award is reasonable in view of the
time it has taken for this case to be resolved.[37]
Finally, the issue of the exclusion of Northwests Exhibits 2 and 3 need not detain us
long. Suffice it to state that the RTC and CA correctly excluded these documents as
hearsay evidence. We quote with favor the CAs holding thereon, thus:
As a rule, entries made at, or near the time of the transactions to which
they refer, by a person deceased, or unable to testify, who was in a
position to know the facts therein stated, may be received as prima facie
evidence, if such person made the entries in his professional capacity or in
the performance of a duty and in the ordinary or regular course of
business or duty. [Rule 130, Section 43, Revised Rules of Court]
Otherwise stated, in order to be admissible as entries in the course of
business, it is necessary that: (a) the person who made the entry must be

dead or unable to testify; (b) the entries were made at or near the time of
the transactions to which they refer; (c) the entrant was in a position to
know the facts stated in the entries; (d) the entries were made in his
professional capacity or in the performance of a duty; and (e) the entries
were made in the ordinary or regular course of business or duty.
Tested by these requirements, we find the manifest and passenger name
record to be mere hearsay evidence. While there is no necessity to bring
into court all the employees who individually made the entries, it is
sufficient that the person who supervised them while they were making the
entries testify that the account was prepared under his supervision and
that the entries were regularly entered in the ordinary course of
business. In the case at bench, while MENDOZA was the supervisor
on-duty on April 1, 1989, he has no personal knowledge of the
entries in the manifest since he did not supervise the preparation
thereof. More importantly, no evidence was presented to prove that
the employee who made the entries was dead nor did the defendantappellant set forth the circumstances that would show the
employees inability to testify.[38]

WHEREFORE, premises considered, the petition is hereby DENIED. The ruling of the
Court of Appeals in CA-G.R. CV No. 50308 is hereby AFFIRMED. Costs against the
petitioner.

SO ORDERED.
FIRST DIVISION
ANNA LERIMA PATULA,
Petitioner,

G.R. No. 164457

Present:

-versus-

CORONA,C.J.,Chairperson,
LEONARDO-DE CASTRO,
BERSAMIN,
DEL CASTILLO, and
VILLARAMA, JR.,JJ.
Promulgated:

PEOPLE OF THE PHILIPPINES,

Respondent.
April 11, 2012
x-----------------------------------------------------------------------------------------x
DECISION
BERSAMIN, J.:
In the trial of everycriminal case, a judge must rigidlytest the States evidence of
guilt in order to ensure that such evidenceadheres to the basic rules of admissibility
before pronouncing an accused guilty of the crime charged upon such evidence.
Nothing less is demanded of the judge; otherwise, the guarantee of due process of law
is nullified.The accused need notadduceanythingto rebut evidence that is discredited for
failing the test.Acquittal should then follow.
Antecedents
Petitioner was charged withestafaunder an informationfiled in the Regional Trial Court
(RTC) in DumagueteCitythat averred:
That on or about and during the period from March 16 to 20, 1997 and for
sometime prior thereto, in the City of Dumaguete, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, being then a
saleswoman of Footluckers Chain of Stores, Inc., Dumaguete City, having
collected and received the total sum of P131,286.97 from several
customers of said company under the express obligation to account for
the proceeds of the sales and deliver the collection to the said company,
but far from complying with her obligation and after a reasonable period of
time despite repeated demands therefore, and with intent to defraud the
said company, did, then and there willfully, unlawfully and feloniously fail to

deliver the said collection to the said company but instead, did, then and
there willfully unlawfully and feloniously misappropriate, misapply and
convert the proceeds of the sale to her own use and benefit, to the
damage and prejudice of the said company in the aforesaid amount
of P131,286.97.
Contrary to Art. 315, par 1 (b) of the Revised Penal Code. [1]
Petitioner pled not guiltyto the offense charged in the information. At pre-trial, no
stipulation of factswas had, and petitioner did not avail herself of plea
bargaining.Thereafter, trial on the merits ensued.
The Prosecutions first witness was Lamberto Go, who testified that he was the
branch manager of Footluckers Chain of Stores, Inc. (Footluckers) in Dumaguete City
since October 8, 1994; that petitioner was an employee of Footluckers, starting as a
saleslady in 1996 until she became a sales representative; that as a sales
representative she was authorized to take orders from wholesale customers coming
from different towns (like Bacong, Zamboanguita, Valencia, Lumbangan and Mabinay in
Negros Oriental, and Siquijor), and to collect payments from them; that she could issue
and sign official receipts of Footluckers for the payments, which she would then remit;
that she would then submit the receipts for the payments for tallying and reconciliation;
that at first her volume of sales was quite high, but later on dropped, leading him to
confront her; that she responded that business was slow; that he summoned the
accounting clerk to verify; that the accounting clerk discovered erasures on some
collection receipts; that he decided to subject her to an audit by company auditor Karen
Guivencan; that he learned from a customer of petitioners that the customers
outstanding balance had already been fully paid although that balance appeared unpaid
in Footluckers records; and that one night later on, petitioner and her parents went to
his house to deny having misappropriated any money of Footluckers and to plead for
him not to push through with a case against her, promising to settle her account on a
monthly basis; and that she did not settle after that, but stopped reporting to work. [2]
On March 7, 2002, Gos cross examination, re-direct examination and recrossexamination were completed.
The only other witness for the Prosecution was Karen Guivencan,
whomFootluckers employed as its store auditor since November 16, 1995 until her

resignation on March 31, 2001. She declared that Go had requested her to audit
petitioner after some customers had told him that they had already paid their accounts
but the office ledger had still reflected outstandingbalances for them; that she first
conducted her audit by going to the customers in places from Mabinay to
Zamboanguitain Negros Oriental, and then in Siquijor; thatshe discovered in the course
of her audit that the amounts appearing on the original copies of receipts in the
possession of around 50 customers varied from the amounts written on the duplicate
copies of the receipts petitioner submitted to the office; that upon completing her audit,
she submittedto Go a written report denominated as List of Customers Covered by
Saleswoman LERIMA PATULA w/ Differences in Records as per Audit Duly
Verified March 16-20, 1997 marked as Exhibit A; and that based on the report, petitioner
had misappropriated the total amount ofP131,286.92.[3]
During Guivencans stint as a witness, the Prosecution marked the ledgers of
petitioners various customers allegedly with discrepancies as Exhibits B to YYand their
derivatives, inclusive. Each of the ledgers had a first column that contained the dates of
the entries, a second that identified the invoices by the number, a third that statedthe
debit, a fourth that noted the credit (or the amounts paid), and a fifth that summed the
balances (debit minus credit).Only 49 of theledgerswere formally offered and admitted
by the RTC because the 50thledger could no longer be found.
In the course of Guivencansdirect-examination,petitioners counsel interposed a
continuing objection on the ground that the figuresentered in Exhibits B to YYand their
derivatives, inclusive, were hearsay because the persons who had made the entries
were not themselves presented in court. [4]With that, petitioners counsel did not anymore
cross-examine Guivencan, apparently regarding her testimony to be irrelevant because
she thereby tended to prove falsification, an offense not alleged in the information.
TheProsecution thenformally offered its documentary exhibits, including Exhibits
B to YYand their derivatives (like the originals and duplicates of the receipts supposedly
executed and issued by petitioner), inclusive, the confirmation sheets used by
Guivencan in auditing the accounts served by petitioner, and Guivencans so-called
Summary (Final Report) of Discrepancies.[5]
After the Prosecution rested its case, the Defense decided not to file a demurrer
to evidence although it had manifested the intention to do so, and instead rested

itscase.The Prosecution and Defense submitted their respective memoranda, and

submitted the case for decision.[6]
On January 28, 2004, the RTC, stating that inasmuch as petitioner had opted not
to present evidence for her defense the Prosecutions evidence remained unrefuted and
uncontroverted,[7]rendered its decision finding petitioner guilty of estafa, to wit:
Wherefore, in the light of the foregoing facts and circumstances, the
Court finds ANNA LERIMA PATULA guilty beyond reasonable doubt of the
crime of Estafa under Art. 315 par (1b) of the Revised Penal Code and
accordingly, she is hereby sentenced to suffer an INDETERMINATE
PENALTY of imprisonment of 8 years and 1 day of prision mayor as
minimum to 18 years and 4 months of reclusion temporal as maximum
with all the accessory penalties provided by law and to indemnify private
complainant the amount of P131,286.92 with interest at 12% per annum
until fully paid and to pay the costs.
Pursuant to Sec. 2, Rule 114 of the Revised Rules of Criminal
Procedure, the cash bail put up by the accused shall be effective only until
the promulgation of this judgment.
SO ORDERED.[8]
Petitioner filed a motion for reconsideration, butthe RTC denied the motion
on May 7, 2004.[9]
Issues
Insisting that the RTCs judgment grossly violated [her] Constitutional and
statutory right to be informed of the nature and cause of the accusation against her
because, while the charge against her is estafa under Art. 315, par. 1 (b) of the Revised
Penal Code, the evidence presented against her and upon which her conviction was
based, was falsification, an offense not alleged or included in the Information under
which she was arraigned and pleaded not guilty, and that said judgment likewise
blatantly ignored and manifestly disregarded the rules on admission of evidence in that
the documentary evidence admitted by the trial court were all private documents, the
due execution and authenticity of which were not proved in accordance with Sec. 20 of
Rule 132 of the Revised Rules on Evidence, petitioner has directly appealed to the
Court via petition for review on certiorari, positing the following issues, to wit:

1. WHETHER THE ACCUSED OR ANY ACCUSED FOR THAT

MATTER , CHARGED OF ESTAFA UNDER ART. 315, PAR. 1 (B) OF THE
REVISED PENAL CODE CAN BE CONVICTED UPON OR BY
EVIDENCE OF FALSIFICATION WHICH IS EVEN (SIC) NOT ALLEGED
IN THE INFORMATION.
2. WHETHER THE ACCUSEDS CONSTITUTIONAL AND
STATUTORY RIGHT TO BE INFORMED OF THE NATURE AND CAUSE
OF THE ACCUSATION AGAINST HER WAS VIOLATED WHEN SHE
WAS CONVICTED UPON OR BY EVIDENCE OF FALSIFICATION
CONSIDERING
THAT
THE
CHARGE
AGAINST
HER
IS ESTAFA THROUGH MISAPPROPRIATION UNDER ART. 315, PAR. 1
(B) OF THE REVISED PENAL CODE.
3. WHETHER OR NOT THE TRIAL COURT ERRED IN
ADMITTING IN EVIDENCE, EXHIBITS B TO YY-YY-2, ALL PRIVATE
DOCUMENTS, THE DUE EXECUTION AND AUTHENTICITY OF WHICH
WERE NOT PROVED IN ACCORDANCE WITH SEC. 20, RULE 132 OF
THE SAID REVISED RULES ON EVIDENCE ASIDE FROM THE FACT
THAT SAID EXHIBITS TEND TO PROVE FALSIFICATION BY THE
ACCUSED, A CRIME NEITHER CHARGED NOR ALLEGED IN THE
INFORMATION.
4. WHETHER OR NOT THE TRIAL COURT ERRED IN
ADMITTING THE TESTIMONY OF KAREN GUIVENCAN DESPITE THE
OBJECTION THAT SAID TESTIMONY WHICH TRIED TO PROVE THAT
THE ACCUSED FALSIFIED EXHIBITS B TO YY-YY-2INCLUSIVE
VIOLATED THE ACCUSEDS CONSTITUTIONAL RIGHT TO BE
INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION
AGAINST HER, FOR BEING IRRELEVANT AND IMMATERIAL SINCE
THE CHARGE AGAINST THE ACCUSED IS ESTAFA UNDER ART. 315,
PAR. 1 (B) OF THE REVISED PENAL CODE.
5. WHETHER OR NOT THE TRIAL COURT ERRED IN
CONCLUDING THAT THE EVIDENCE OF THE PROSECUTION
REMAINS
UNREFUTED
AND
UNCONTROVERTED
DESPITE
ACCUSEDS OBJECTION THAT SAID EVIDENCE IS IMMATERIAL AND
IRRELEVANT TO THE CRIME CHARGED.
6. WHETHER OR NOT THE DEFENSES NOT CROSSEXAMINING KAREN GUIVENCAN FOR THE REASON THAT HER
TESTIMONY IS IMMATERIAL AND IRRELEVANT AS IT TENDED TO
PROVE AN OFFENSE NOT CHARGED IN INFORMATION RESULTED
IN THE ADMISSION OF SAID TESTIMONY AS BEING UNREFUTED
AND UNCONTROVERTED, AND WHETHER OR NOT THE DEFENSES

OBJECTION WOULD NOT BE CONSIDERED WAIVED IF THE

DEFENSE CROSS-EXAMINED SAID WITNESS.
7. WHETHER OR NOT THE TRIAL COURT ERRED IN RULING
THAT EXHIBIT A, WHICH IS THE LIST OF CUSTOMERS COVERED BY
SALESWOMAN LERIMA PATULA WITH DIFFERENCE IN RECORD IS
NOT HEARSAY AND SELF-SERVING.[10]
The foregoing issues are now restatedas follows:
1.

Whether or not the failure of the information for estafa to allege the
falsification of the duplicate receipts issued by petitioner to her
customersviolated petitioners right to be informed of the nature and
cause of the accusation;

2.

Whether or not the RTC gravely erred in admitting evidence of the

falsification of the duplicate receiptsdespite the information not alleging
the falsification;

3.

Whether or not the ledgers and receipts (Exhibits B to YY, and their
derivatives, inclusive) were admissible as evidence of petitioners guilt
for estafaas chargeddespite their not being duly authenticated;and
4. Whether or not Guivencanstestimony onthe ledgers and receipts
(Exhibits B to YY, and their derivatives, inclusive) to prove petitioners
misappropriation or conversion wasinadmissible for being hearsay.
Ruling
The petition is meritorious.
I
Failure of information to allege falsification
did not violate petitioners right to be informed
of thenatureand cause of the accusation

Petitioner contends that the RTC grossly violated her Constitutional right to be
informed of the nature and cause of the accusation when: (a) it held that the information
did not have to allege her falsification of the duplicate receipts, and (b) when it convicted
her of estafa under Article 315, paragraph 1(b) of the Revised Penal Codeby relying on
the evidence on falsification.

The contentionof petitioner cannot be sustained.

The Bill of Rights guaranteessome rightsto every person accused of a crime,
among them the right to be informed of the nature and cause of the accusation, viz:
Section 14. (1) No person shall be held to answer for a criminal
offense without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed of the nature and cause
of the accusation against him, to have a speedy, impartial, and public
trial, to meet the witnesses face to face, and to have compulsory process
to secure the attendance of witnesses and the production of evidence in
his behalf. However, after arraignment, trial may proceed notwithstanding
the absence of the accused provided that he has been duly notified and
his failure to appear is unjustifiable.
Rule 110 of the Revised Rules of Court, the rule then in effect when the
information was filed in the RTC, contained the following provisions on the proper
manner of alleging the nature and cause of the accusation in the information, to wit:
Section 8.Designation of the offense. Whenever possible, a
complaint or information should state the designation given to the offense
by the statute, besides the statement of the acts or omissions constituting
the same, and if there is no such designation, reference should be made
to the section or subsection of the statute punishing it. (7)
Section 9.Cause of accusation. The acts or omissions complained of
as constituting the offense must be stated in ordinary and concise
language without repetition, not necessarily in the terms of the statute
defining the offense, but in such form as is sufficient to enable a person of
common understanding to know what offense is intended to be charged,
and enable the court to pronounce proper judgment. (8)
The importance of the proper manner of alleging the nature and cause of the
accusation in the informationshould never be taken for granted by the State. An
accused cannot be convicted of an offense that is not clearly charged in the complaint
or information. To convict him of an offense other than that charged in the complaint or
information would be violative of the Constitutional right to be informed of the nature
and cause of the accusation.[11] Indeed, the accused cannot be convicted of a crime,

even if duly proven, unless the crime is alleged or necessarily included in the
information filed against him.
The crime of estafacharged against petitioner was defined and penalized by
Article 315, paragraph 1 (b), Revised Penal Code, viz:
Article 315. Swindling (estafa). Any person who shall defraud another
by any of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period
to prision mayor in its minimum period, if the amount of the fraud is over
12,000 pesos but does not exceed 22,000 pesos, and if such amount
exceeds the latter sum, the penalty provided in this paragraph shall be
imposed in its maximum period, adding one year for each additional
10,000 pesos; but the total penalty which may be imposed shall not
exceed twenty years. In such cases, and in connection with the accessory
penalties which may be imposed under the provisions of this Code, the
penalty shall be termed prision mayor or reclusion temporal, as the case
may be.
2nd. The penalty of prision correccional in its minimum and medium
periods, if the amount of the fraud is over 6,000 pesos but does not
exceed 12,000 pesos;
3rd. The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period if such amount is over 200 pesos but
does not exceed 6,000 pesos; and
4th. By arresto mayor in its maximum period, if such amount does not
exceed 200 pesos, provided that in the four cases mentioned, the fraud be
committed by any of the following means:
xxx
1. With

unfaithfulness

or

abuse

of

confidence,

namely:

xxx
(b) By misappropriating or converting, to the prejudice of
another, money, goods, or any other personal property received by
the offender in trust or on commission, or for administration, or
under any other obligation involving the duty to make delivery of or
to return the same, even though such obligation be totally or partially

guaranteed by a bond; or by denying having received such money,

goods, or other property.
xxx
The elements of the offense charged were as follows:
(a) That the offender received money, goods or other personal property in
trust, or on commission, or for administration, or under any other
obligation involving the duty to make delivery of, or to return, the same;
(b) That the offender misappropriated or converted such money, goods or
other personal property, or denied his part in its receipt;
(c) That the misappropriation or conversion or denial was to the prejudice
of another; and
(d) That the offended party made a demand on the offender for the
delivery or return of such money, goods or other personal property.[12]

According to the theory and proof of the Prosecution, petitioner misappropriated or

converted the sums paid by her customers, and later falsified the duplicates of the
receipts before turning such duplicates to her employer to show that the customers had
paid less than the amounts actually reflected on the original receipts. Obviously, she
committed the falsification in order to conceal her misappropriation or conversion.
Considering that the falsificationwas not an offense separate and distinct from
the estafacharged against her, the Prosecution could legitimately prove her acts of
falsification as its means of establishing her misappropriation or conversion as an
essential ingredient of the crime duly alleged in the information. In that manner, her right
to be informed of the nature and cause of the accusation against her was not infringed
or denied to her.
We consider it inevitable to conclude that the information herein completely
pleaded the estafa defined and penalized under Article 315, paragraph 1 (b), Revised
Penal Codewithin the context of the substantive lawand the rules. Verily, there was no
necessity for the information to allege the acts of falsification by petitioner because
falsification was not an element of the estafacharged.

Not surprisingly,the RTC correctly dealt in its decision with petitioners concern
thuswise:
In her Memorandum, it is the contention of [the] accused that [the]
prosecutions evidence utterly fails to prove the crime charged. According
to the defense, the essence of Karen Guivencans testimony is that the
accused falsified the receipts issued to the customers served by her by
changing or altering the amounts in the duplicates of the receipts and
therefore, her testimony is immaterial and irrelevant as the charge is
misappropriation under Art. 315, paragraph (1b) of the Revised Penal
Code and there is no allegation whatsoever of any falsification or
alteration of amounts in the [i]nformation under which the accused was
arraigned and pleaded NOT GUILTY. Accused, thus, maintains that the
testimony of Karen Guivencan should therefore not be considered at all as
it tended to prove an offense not charged or included in the [i]nformation
and would violate [the] accuseds constitutional and statutory right to be
informed of the nature and cause of the accusation against her. The Court
is not in accord with such posture of the accused.
It would seem that the accused is of the idea that because the
crime charged in the [i]nformation is merely [e]stafa and not [e]stafa
[t]hru [f]alsification of documents, the prosecution could not prove
falsification. Such argumentation is not correct. Since the
information charges accused only of misappropriation pursuant to
Art. 315, par. (1b) of the Revised [P]enal Code, the Court holds that
there is no necessity of alleging the falsification in the Information as
it is not an element of the crime charged.
Distinction should be made as to when the crimes of Estafa and
Falsification will constitute as one complex crime and when they are
considered as two separate offenses. The complex crime of Estafa
Through Falsification of Documents is committed when one has to
falsify certain documents to be able to obtain money or goods from
another person. In other words, the falsification is a necessary
means of committing estafa. However, if the falsification is
committed to conceal the misappropriation, two separate offenses of
estafa and falsification are committed. In the instant case, when
accused collected payments from the customers, said collection
which was in her possession was at her disposal. The falsified or
erroneous entries which she made on the duplicate copies of the
receipts were contrived to conceal some amount of her collection
which she did not remit to the company xxx.[13]
II
Testimonial and documentary evidence,being hearsay,

did not prove petitioners guilt beyond reasonable doubt

Nonetheless, in all criminal prosecutions, the Prosecution bears the burden to

establish the guilt of the accused beyond reasonable doubt. In discharging this burden,
the Prosecutions duty is to prove each and every element of the crime charged in the
information to warrant a finding of guilt for that crime or for any other crime necessarily
included therein.[14] The Prosecution must further prove the participation of the accused
in the commission of the offense. [15]In doing all these, the Prosecution must rely on the
strength of its own evidence, and not anchor its success upon the weakness of the
evidence of the accused. The burden of proof placed on the Prosecution arises from the
presumption of innocence in favor of the accused that no less than the Constitution has
guaranteed.[16]Conversely, as to his innocence, the accused has no burden of proof,
[17]
that he must then be acquitted and set free should the Prosecution not overcome the
presumption of innocence in his favor.In other words, the weakness of the defense put
up by the accused is inconsequential in the proceedings for as long as the Prosecution
has not discharged its burden of proof in establishing the commission of the crime
charged and in identifying the accused as the malefactor responsible for it.
Did the Prosecution adduce evidence that proved beyond reasonable doubt the
guilt of petitioner for the estafa charged in the information?
To establish the elements of estafaearlier mentioned, the Prosecution presented
the testimonies of Go and Guivencan, and various documentsconsisting of: (a) the
receipts allegedly issued by petitioner to each of her customers upon their payment, (b)
the ledgers listing the accounts pertaining to each customer with the corresponding
notations of the receipt numbers for each of the payments, and (c) the confirmation
sheets accomplished by Guivencan herself. [18]The ledgers and receipts were marked
and formally offered as Exhibits B to YY, and their derivatives, inclusive.
On his part, Go essentially described for the trial court the various duties of
petitioner as Footluckers sales representative. On her part, Guivencan conceded having
no personal knowledge of the amounts actually received by petitioner from the
customersor remitted by petitioner to Footluckers.This means that persons other than
Guivencan prepared Exhibits B to YY and their derivatives, inclusive,and that
Guivencan based her testimony on the entries found in the receipts supposedly issued

by petitioner and in the ledgers held by Footluckers corresponding to each customer, as

well as on the unsworn statements of some of the customers. Accordingly, her being the
only witness who testified on the entries effectively deprived the RTC of the reasonable
opportunity to validate and test the veracity and reliability of the entries as evidence of
petitioners misappropriation or conversion through cross-examination by petitioner. The
denial of that opportunity rendered theentire proof of misappropriation or conversion
hearsay, and thus unreliable and untrustworthy for purposes of determining the guilt or
innocence of the accused.

To elucidate why the Prosecutions hearsay evidence was unreliable and

untrustworthy, and thus devoid of probative value, reference is made toSection 36 of
Rule 130,Rules of Court, a rule that states that a witness can testify only to those facts
that she knows of her personal knowledge; that is, which are derived from her own
perception, except as otherwise provided in the Rules of Court. The personal
knowledge of a witness is a substantive prerequisite for accepting testimonial evidence
that establishes the truth of a disputed fact. A witness bereft ofpersonal knowledge of
the disputed fact cannot be called upon for that purpose because her testimony derives
its value not from the credit accorded to her as a witness presently testifying but from
the veracity and competency of the extrajudicial source of her information.
In case a witness is permitted to testify based on what she has heard another
person say about the facts in dispute, the person from whom the witness derived the
information on the facts in dispute is not in court and under oath to be examined and
cross-examined. The weight of such testimony thendepends not upon theveracity of the
witness but upon the veracity of the other person giving the information to the witness
without oath. The information cannot be tested because the declarant is not standing in
court as a witness andcannot, therefore, be cross-examined.
It is apparent, too, that a person who relates a hearsay is not obliged to enter into
any particular, to answer any question, to solve any difficulties, to reconcile any
contradictions, to explain any obscurities, to remove any ambiguities; and that she
entrenches herself in the simple assertion that she was told so, and leaves the burden
entirely upon the dead or absent author. [19] Thus, the rule against hearsay testimony
rests mainly on the ground that there was no opportunity to cross-examine the
declarant.[20] The testimony may have been given under oath and before a court of

justice, but if it is offered against a party who is afforded no opportunity to cross-examine

the witness, it is hearsay just the same.[21]
Moreover, the theory of the hearsay rule is that when a human utterance is
offered as evidence of the truth of the fact asserted, the credit of the assertor becomes
the basis of inference, and, therefore, the assertion can be received as evidence only
when made on the witness stand, subject to the test of cross-examination. However, if
an extrajudicial utterance is offered, not as an assertion to prove the matter asserted but
without reference to the truth of the matter asserted, the hearsay rule does not apply.
For example, in a slander case, if a prosecution witness testifies that he heard the
accused say that the complainant was a thief, this testimony is admissible not to prove
that the complainant was really a thief, but merely to show that the accused uttered
those words.[22] This kind of utterance ishearsay in character but is not legal hearsay.
[23]
The distinction is, therefore, between (a) the fact that the statement was made, to
which the hearsay rule does not apply, and (b) the truth of the facts asserted in the
statement, to which the hearsay rule applies.[24]
Section 36, Rule 130 of the Rules of Court is understandably not the only rule
that explains why testimony that is hearsay should be excluded from consideration.
Excluding hearsay also aims to preserve the right of the opposing party to crossexamine the originaldeclarant claiming to have a direct knowledge of the transaction or
occurrence.[25]If hearsay is allowed, the right stands to be denied because the declarant
is not in court.[26]It is then to be stressed that the right to cross-examine the adverse
partys witness,
being the only means of testing the credibility of witnesses and their testimonies, is
essential to the administration of justice.
To address the problem of controlling inadmissible hearsay as evidence to
establish the truth in a dispute while also safeguardinga partys right to cross-examine
her adversarys witness,the Rules of Court offers two solutions. The firstsolution is to
require that allthe witnesses in a judicial trial or hearing be examined only in courtunder
oath or affirmation. Section 1, Rule 132 of the Rules of Court formalizes this solution,viz:
Section 1. Examination to be done in open court. - The examination
of witnesses presented in a trial or hearing shall be done in open court,

and under oath or affirmation. Unless the witness is incapacitated to

speak, or the question calls for a different mode of answer, the answers of
the witness shall be given orally. (1a)
The secondsolution is to require that all witnesses besubject to the cross-examination
by the adverse party. Section 6, Rule 132 of the Rules of Courtensuresthis
solutionthusly:
Section 6. Cross-examination; its purpose and extent. Upon the
termination of the direct examination, the witness may be cross-examined
by the adverse party as to any matters stated in the direct examination, or
connected therewith, with sufficient fullness and freedom to test his
accuracy and truthfulness and freedom from interest or bias, or the
reverse, and to elicit all important facts bearing upon the issue. (8a)
Although the second solution traces its existence to a Constitutional precept relevant to
criminal cases, i.e., Section 14, (2), Article III, of the 1987 Constitution,which guarantees
that: In all criminal prosecutions, the accused shall xxx enjoy the right xxx to meet the
witnesses face to face xxx, the rule requiring the cross-examination by the adverse party
equally applies to non-criminal proceedings.
We thus stress that the rule excluding hearsay as evidence is based upon
serious concerns about the trustworthiness and reliability of hearsay evidence due to its
not being given under oath or solemn affirmation and due to its not being subjected to
cross-examination by the opposing counsel to test the perception, memory, veracity and
articulateness of the out-of-court declarant or actor upon whose reliability the worth of
the out-of-court statement depends.[27]
Based on the foregoing considerations, Guivencans testimony as well as Exhibits
B to YY, and their derivatives, inclusive, must be entirely rejected as proof of petitioners
misappropriation or conversion.
III
Lack of their proper authentication rendered
Exhibits B to YY and their derivatives
inadmissible as judicial evidence

Petitioner also contends that the RTC grossly erred in admitting as evidence
Exhibits B to YY, and their derivatives, inclusive, despite their being private documents
that were not duly authenticated as required by Section 20, Rule 132 of the Rules of
Court.
Section 19, Rule 132 of the Rules of Courtdistinguishes between a public
document and a private document for the purpose of their presentation in evidence, viz:
Section 19. Classes of documents. For the purpose of their
presentation in evidence, documents are either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public officers,
whether of the Philippines, or of a foreign country;
(b) Documents acknowledged before a notary public except last
wills and testaments, and
(c) Public records, kept in the Philippines, of private documents
required by law to be entered therein.
All other writings are private.
The nature of documents as either public or private determines how the
documents may be presented as evidence in court. A public document, by virtue of its
official or sovereign character, or because it has been acknowledged before a notary
public (except a notarial will) or a competent public official with the formalities required
by law, or because it is a public record of a private writing authorized by law, is selfauthenticating and requires no further authentication in order to be presented as
evidence in court.In contrast, a private document is any other writing, deed, or
instrument executed by a private person without the intervention of a notary or other
person legally authorized by which some disposition or agreement is proved or set forth.
Lacking the official or sovereign character of a public document, or the solemnities
prescribed by law, a private document requires authentication in the manner allowed by
law or the Rules of Court before its acceptance as evidence in court. The requirement of
authentication of a private document is excused only in four instances, specifically: (a)

when the document is an ancient one within the context of Section 21, [28] Rule 132 of
the Rules of Court; (b) when the genuineness and authenticity of an actionable
document have not been specifically denied under oath by the adverse party; [29](c) when
thegenuineness and authenticity of the document
have been admitted;[30] or (d) when the document is not being offered as genuine. [31]
There is no question that Exhibits B to YY and their derivatives were private
documents because private individuals executed or generated them for private or
business purposes or uses. Considering that none of the exhibits came under any of the
four exceptions, they could not be presented and admitted as evidence against
petitioner without the Prosecution dutifully seeing to their authentication in the manner
provided in Section20 of Rule 132 of the Rules of Court,viz:
Section 20. Proof of private documents. Before any private
document offered as authentic is received in evidence, its due
execution and authenticity must be proved either:
(a)

By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or

handwriting of the maker.
Any other private document need only be identified as that which it is
claimed to be.
The Prosecutionattempted to have Go authenticate the signature of petitioner in
various receipts, to wit:
ATTY. ABIERA:
Q. Now, these receipts which you mentioned which do not tally with the
original receipts, do you have copies of these receipts?
A. Yes, I have a copy of these receipts, but its not now in my possession.
Q. But when asked to present those receipts before this Honorable Court,
can you assure this
(Next Page)
ATTY ABIERA (continuing):
Honorable Court that you will be able to present those receipts?
A. Yes.

Q. You are also familiar with the signature of the accused in this case,
Anna Lerima Patula?
A. Yes.
Q. Why are you familiar with the signature of the accused in this case?
A. I used to see her signatures in the payroll and in the receipts also.
Q. Okay, I have here a machine copy of a receipt which we would
present this,or offer the same as soon as the original receipts
can be presented, but for purposes only of your testimony,
Im going to point to you a certain signature over this
receipt number FLDT96 20441, a receipt from Cirila
Askin, kindly go over the signature and tell the Honorable
Court whether you are familiar with the signature?
A. Yes, that is her signature.
INTERPRETER:
Witness is pointing to a signature above the printed word collector.
(Next Page)
ATTY. ABIERA:
Q. Is this the only receipt wherein the name, the signature rather, of
the accused in this case appears?
A. That is not the only one, there are many receipts.
ATTY. ABIERA:
In order to save time, Your Honor, we will just be presenting the
original receipts Your Honor, because its quite voluminous, so
we will just forego with the testimony of the witness but we will
just present the same using the testimony of another
witness, for purposes of identifying the signature of the
accused. We will request that this signature which has been
identified to by the witness in this case be marked, Your Honor,
with the reservation to present the original copy and present the
same to offer as our exhibits but for the meantime, this is only
for the purposes of recording, Your Honor, which we request the
same, the receipt which has just been identified awhile ago be
marked as our Exhibit A You Honor.
COURT:
Mark the receipt as Exhibit A.
ATTY. ABIERA:
And the signature be bracketed and be marked as Exhibit A-1.
(Next Page)
COURT:
Bracket the signature &mark it as Exh. A-1. What is the number of that
receipt?

ATTY. ABIERA:
Receipt No. 20441 dated August 4, 1996 the statement that: received from
Cirila Askin.[32]
xxx
As the excerpts indicate, Gos attempt at authentication of the signature of petitioner on
the receipt with serial number FLDT96 No. 20441 (a document that was marked as
Exhibit A, while the purported signature of petitioner thereon was marked as Exhibit A-1)
immediately fizzled out after the Prosecution admitted that the document was a
meremachinecopy, not the original. Thereafter, as if to soften its failed attempt, the
Prosecution expressly promised to produce at a later date the originalsof the receipt
with serial number FLDT96 No. 20441 and other receipts. But that promise was not
even true, because almost in the same breath the Prosecution offered to authenticate
the signature of petitioner on the receiptsthrougha different witness (though then still
unnamed). As matters turned out in the end, the effort to have Go authenticate both
themachinecopy of the receiptwith serial number FLDT96 No. 20441 and the signature
of petitioner on that receipt was wasteful because the machine copy was
inexplicablyforgotten and was no longer evenincluded in the Prosecutions Offer of
Documentary Evidence.
It is true that the original of the receipt bearing serial number FLDT96 No.
20441was subsequentlypresented as Exhibit Bthrough Guivencan. However,the
Prosecution did not establishthat the signature appearing on Exhibit B was the same
signature that Go had earliersought to identify to be the signature of petitioner (Exhibit
A-1) on the machine copy (Exhibit A). This is borne out by the fact that the Prosecution
abandoned Exhibit A as the marking nomenclature for the machine copyof the receipt
bearing serial number FLDT96 No. 20441 for all intents and purposes of this case, and
used the same nomenclature to referinstead toan entirely differentdocument entitled List
of Customers covered by ANA LERIMA PATULA w/difference in Records as per Audit
duly verified March 16-20, 1997.
In her case, Guivencans identification of petitioners signature on two receipts
based alone on the fact that the signatures contained the legible family name of Patula

was ineffectual, and exposed yet another deep flaw infecting the documentary evidence
against petitioner. Apparently, Guivencan could not honestly identify petitioners
signature on the receipts either because she lacked familiarity with such signature, or
because she had not seen petitioner affix her signature on the receipts, as the following
excerpts from her testimony bear out:
ATTY. ZERNA to witness:
Q.
There are two (2) receipts attached here in the confirmation
sheet, will you go over these Miss witness?
A.
This was the last payment which is fully paid by the customer. The
other receipt is the one showing her payment prior to the last
payment.
COURT:
Q. Where did you get those two (2) receipts?
A. From the customer.
Q. And who issued those receipts?
A. The saleswoman, Miss Patula.
ATTY. ZERNA:
We pray, Your Honor, that this receipt identified be marked as Exhibit B-3,
receipt number 20441.
(Next Page)
COURT:
Mark it.
ATTY. ZERNA:
The signature of the collector be marked as
Q. By the way, there is a signature above the name of the collector,
are your familiar with that signature? (shown to witness)
A. Yes.
Q. Whose signature is that?
A. Miss Patula.
Q. How do you know?
A. It can be recognized because of the word Patula.
Q. Are you familiar with her signature?
A. Yes.
ATTY. ZERNA:
We pray that the signature be bracketed and marked as Exhibit B-3-a
COURT:
Mark it.
ATTY. ZERNA:
The other receipt number 20045 be marked as Exhibit B-4 and the
signature as Exhibit B-4-a.
COURT:
Mark it.[33]

xxx
ATTY. ZERNA:
Q. Ms. Witness, here is a receipt colored white, number 26603 issued to
one Divina Cadilig. Will you please identify this receipt if this is
the receipt of your office?
A.Yes.
Q.There is a signature over the portion for the collector. Whose signature
is this?
A.Ms. Patula.
Q.How do you know that this is her signature?
A.Because we can read the Patula.[34]
We also have similar impressions of lack of proper authentication as to the ledgers the
Prosecution presented to prove the discrepancies between the amountspetitioner
hadallegedly received from the customers and the amounts she had actually remitted to
Footluckers. Guivencanexclusively relied on the entries of the unauthenticated ledgersto
support her audit report on petitioners supposed misappropriation or conversion,
revealing her lack of independent knowledge of the veracity of the entries, as the
following excerpts of her testimony show:
ATTY. ZERNA to witness:
Q. What is your basis of saying that your office records showed that
this Cecilia Askin has an account of P10,791.75?
ATTY. DIEZ:
The question answers itself, You Honor, what is the basis, office record.
COURT:
Let the witness answer.
WITNESS:
A. I made the basis on our ledger in the office. I just copied that and
showed it to the customers for confirmation.
ATTY. ZERNA to witness:
Q. What about the receipts?
COURT:
Make a follow-up question and what was the result when you copied that
amount in the ledger and you had it confirmed by the
customers, what was the result when you had it confirmed by
the customers?
WITNESS:
A. She has no more balance but in our office she has still a balance
of P10,971.75.
ATTY. ZERNA to witness:

Q. Do you have a-whats the basis of saying that the balance of this
customer is still P10,971.75
(Next Page)
ATTY. ZERNA (continuing):
[i]n your office?
COURT:
That was already answered paero, the office has a ledger.
Q. Now, did you bring the ledger with you?
A. No, Maam.[35]
(Continuation of the Direct Examination of
Karen Guivencan on August 13, 2002)
ATTY. ZERNA to witness:
Q. Okay, You said there are discrepancies between the original and the
duplicate, will you please enlighten the Honorable Court on
that discrepancy which you said?
A. Like in this case of Cirila Askin, she has already fully paid. Her
ledger shows a zero balance she has fully paid while in the
original
(Next page)
WITNESS (continuing):
[r]eceipt she has a balance of Ten Thousand Seven hundred Ninetyone Pesos and Seventy-five Centavos (10,791.75).
COURT:
Q. What about the duplicate receipt, how much is indicated there?
A. The customer has no duplicate copy because it was already forwarded
to the Manila Office.
Q. What then is your basis in the entries in the ledger showing that it has
already a zero balance?
A. This is the copy of the customer while in the office, in the original
receipt she has still a balance.
xxx
ATTY. ZERNA:
The confirmation sheet --COURT:
The confirmation sheet was the one you referred to as the receipt in
your earlier testimony? Is that what you referred to as the
receipts, the original receipts?
A. This is what I copied from the ledger.

Q. So where was that(sic) original receipt which you said showed that that
particular customer still has a balance of Ten Thousand
something?
A. The receipt is no longer here.
Q. You mean the entry of that receipt was already entered in the
ledger?
A. Yes.[36]

In the face of the palpable flaws infecting the Prosecutions evidence, it should come as
no surprise that petitioners counsel interposed timely objections. Yet, the RTC
mysteriously overruled the objections and allowedthe Prosecutionto present the
unauthenticated ledgers, as follows:
(Continuation of the Direct Examination of
Witness Karen Guivencan on September 11, 2002)
ATTY. ZERNA:
CONTINUATION OF DIRECT-EXAMINATION
Q Ms. Witness, last time around you were showing us several ledgers.
Where is it now?
A It is here.
Q Here is a ledger of one Divina Cadilig. This Divina Cadilig, how much is
her account in your office?
ATTY. DIEZ:
Your Honor please before the witness will proceed to answer the
question, let me interpose our objection on the ground that
this ledger has not been duly identified to by the person
who made the same. This witness will be testifying on
hearsay matters because the supposed ledger was not
identified to by the person who made the same.
COURT:
Those ledgers were already presented in the last hearing. I think they
were already duly identified by this witness. As a matter of fact,
it was she who brought them to court
(Next Page)
COURT (cont.):
because these were the ledgers on file in their office.
ATTY. DIEZ

That is correct, Your Honor, but the person who made the entries is not
this witness, Your Honor. How do we know that the entries
there is (sic) correct on the receipts submitted to their
office.
COURT:
Precisely, she brought along the receipts also to support that. Let the
witness answer.
WITNESS:
A Its the office clerk in-charge.
COURT:
The one who prepared the ledger is the office clerk.
ATTY. ZERNA:
She is an auditor, Your Honor. She has been qualified and she is the
auditor of Footluckers.
COURT:
I think, I remember in the last setting also, she testified where those
entries were taken. So, you answer the query of counsel.
xxx
ATTY. DIEZ:
Your Honor please, to avoid delay, may I interpose a continuing
objection to the questions profounded(sic) on those
ledgers on the ground that, as I have said, it is hearsay.
COURT:
Okey(sic). Let the continuing objection be noted.
Q (To Witness) The clerk who allegedly was the one who prepared the
entries on those ledgers, is she still connected with
Footluckers?
A She is no longer connected now, Your Honor,
COURT:
Alright proceed.
(Next Page)
ATTY. ZERNA:
Your Honor, these are entries in the normal course of business. So,
exempt from the hearsay rule.
COURT:
Okey(sic), proceed.[37]

The mystery shrouding the RTCs soft treatment of the Prosecutions flawed
presentation was avoidable simply by the RTC adhering to the instructions of the rules
earlier quoted, as well as withSection 22 of Rule 132 of the Rules of Court,which
contains instructions on how to prove the genuineness of a handwriting in a judicial
proceeding, as follows:
Section 22. How genuineness of handwriting proved. The handwriting
of a person may be proved by any witness who believes it to be the
handwriting of such person because he has seen the person write,
or has seen writing purporting to be his upon which the witness has
acted or been charged, and has thus acquired knowledge of the
handwriting of such person. Evidence respecting the handwriting may also
be given by a comparison, made by the witness or the court, with
writings admitted or treated as genuine by the party against whom the
evidence is offered, or proved to be genuine to the satisfaction of the
judge. (Emphases supplied)
If it is already clear that Go and Guivencan had not themselves seen the
execution or signing of the documents,the Prosecution surely did not
authenticate Exhibits B to YY and their derivatives conformably with the aforequoted
rules. Hence, Exhibits B to YY, and their derivatives, inclusive, were inescapably bereft
of probative value as evidence. That was the onlyfair and just result, as the Court held
in Malayan Insurance Co., Inc. v. Philippine Nails and Wires Corporation:[38]
On the first issue, petitioner Malayan Insurance Co., Inc.,
contends that Jeanne Kings testimony was hearsay because she had
no personal knowledge of the execution of the documents
supporting respondents cause of action, such as the sales contract,
invoice, packing list, bill of lading, SGS Report, and the Marine Cargo
Policy. Petitioner avers that even though King was personally assigned to
handle and monitor the importation of Philippine Nails and Wires
Corporation, herein respondent, this cannot be equated with personal
knowledge of the facts which gave rise to respondents cause of action.
Further, petitioner asserts, even though she personally prepared the
summary of weight of steel billets received by respondent, she did not
have personal knowledge of the weight of steel billets actually shipped
and delivered.
At the outset, we must stress that respondents cause of action is
founded on breach of insurance contract covering cargo consisting of
imported steel billets. To hold petitioner liable, respondent has to prove,
first, its importation of 10,053.400 metric tons of steel billets valued
at P67,156,300.00, and second, the actual steel billets delivered to and
received by the importer, namely the respondent. Witness Jeanne King,

who was assigned to handle respondents importations, including their

insurance coverage, has personal knowledge of the volume of steel billets
being imported, and therefore competent to testify thereon. Her testimony
is not hearsay, as this doctrine is defined in Section 36, Rule 130 of the
Rules of Court.However, she is not qualified to testify on the shortage
in the delivery of the imported steel billets. She did not have
personal knowledge of the actual steel billets received. Even though
she prepared the summary of the received steel billets, she based
the summary only on the receipts prepared by other persons. Her
testimony on steel billets received was hearsay. It has no probative
value even if not objected to at the trial.
On the second issue, petitioner avers that King failed to properly
authenticate respondents documentary evidence. Under Section 20,
Rule 132, Rules of Court, before a private document is admitted in
evidence, it must be authenticated either by the person who
executed it, the person before whom its execution was
acknowledged, any person who was present and saw it executed, or
who after its execution, saw it and recognized the signatures, or the
person to whom the parties to the instruments had previously
confessed execution thereof. In this case, respondent admits that
King was none of the aforementioned persons. She merely made the
summary of the weight of steel billets based on the unauthenticated
bill of lading and the SGS report. Thus, the summary of steel billets
actually received had no proven real basis, and Kings testimony on
this point could not be taken at face value.
xxx Under the rules on evidence, documents are either public or
private. Private documents are those that do not fall under any of the
enumerations in Section 19, Rule 132 of the Rules of Court.Section 20of
the same law, in turn, provides that before any private document is
received in evidence, its due execution and authenticity must be proved
either by anyone who saw the document executed or written, or
by evidence of the genuineness of the signature or handwriting of the
maker. Here,
respondents
documentary exhibits
are
private
documents. They are not among those enumerated in Section 19,
thus, their due execution and authenticity need to be proved before
they can be admitted in evidence.With the exception concerning the
summary of the weight of the steel billets imported, respondent
presented no supporting evidence concerning their authenticity.
Consequently, they cannot be utilized to prove less of the insured
cargo and/or the short delivery of the imported steel billets. In sum,
we find no sufficient competent evidence to prove petitioners
liability.

That the Prosecutions evidence was left uncontested because petitioner decided
not to subject Guivencan to cross-examination, and did not tender her contrary
evidencewas inconsequential. Although the trial court had overruled the seasonable
objections to Guivencans testimony bypetitioners counsel due to the hearsay character,
it could not be denied thathearsay evidence, whether objected to or not, had no
probative value.[39]Verily, the flaws of the Prosecutions evidence were fundamental and
substantive, not merely technical and procedural, and were defects that the adverse
partys waiver of her cross-examination or failure to rebutcould not set right or cure. Nor
did the trial courts overruling of petitioners objections imbue the flawed evidence with
any virtue and value.
Curiously, the RTC excepted the entries in the ledgers from the application of the
hearsay rule by also terselystating that the ledgers were prepared in the regular course
of business.[40]Seemingly, the RTC applied Section 43, Rule 130 of the Rules of
Court, to wit:
Section 43. Entries in the course of business. Entries made at, or
near the time of the transactions to which they refer, by a person
deceased, or unable to testify, who was in a position to know the facts
therein stated, may be received as prima facie evidence, if such person
made the entries in his professional capacity or in the performance of duty
and in the ordinary or regular course of business or duty.
This was another grave error of the RTC.The terse yet sweeping mannerof
justifying the application of Section 43 was unacceptable due to the need to show the
concurrence of the several requisites before entries in the course of business could be
excepted from the hearsay rule. The requisites are as follows:
(a) The person who made the entry must be dead or unable to testify;
(b) The entries were made at or near the time of the transactions to which
they refer;
(c) The entrant was in a position to know the facts stated in the entries;
(d) The entries were made in his professional capacity or in the
performance of a duty, whether legal, contractual, moral, or religious;
(e) The entries were made in the ordinary or regular course of business or
duty.[41]

The Court has to acquit petitioner for failure of the State to establish her guilt
beyond reasonable doubt. The Court reiterates that in the trial of every criminal case, a
judge must rigidly test the States evidence of guilt in order to ensure that such evidence
adhered to the basic rules of admissibility before pronouncing an accused guilty of the
crime charged upon such evidence. The failure of the judge to do so herein nullified the
guarantee of due of process of law in favor of the accused, who had no obligation to
prove her innocence. Heracquittal should follow.
IV
No reliable evidence on damage
Conformably with finding the evidence of guilt unreliable, the Court declares that
the disposition by the RTC ordering petitioner to indemnify Footluckers in the amount
ofP131,286.92 with interest of 12% per annum until fully paid was not yet shown to be
factually founded. Yet, she cannot now be absolved of civil liability on that basis.
Heracquittal has to bedeclared as without prejudice to the filing of a civil action against
her for the recovery of any amount that she may still owe to Footluckers.
WHEREFORE, the Court SETS ASIDE ANDREVERSESthe decision
convicting ANNA LERIMA PATULAof estafa as charged, and ACQUITS her for failure
of the Prosecution to prove her guilt beyond reasonable doubt, without prejudice to a
civil action brought against her for
the recoveryof any amount still owing in favor of Footluckers Chain of Stores, Inc.
No pronouncement on costs of suit.
SO ORDERED.
Republic
SUPREME
Manila

of

EN BANC
G.R. No. L-12986

March 31, 1966

the

Philippines
COURT

THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF
DOMINGA
ONG,petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF
APPEALS, respondents-appellees.
Ross,
Selph,
Carrascoso
and
Bernabe Africa, etc. for the petitioners.

Janda

for

the

respondents.

MAKALINTAL., J.:
This case is before us on a petition for review of the decision of the Court of Appeals,
which affirmed that of the Court of First Instance of Manila dismissing petitioners'
second amended complaint against respondents.
The action is for damages under Articles 1902 and 1903 of the old Civil Code. It
appears that in the afternoon of March 18, 1948 a fire broke out at the Caltex service
station at the corner of Antipolo street and Rizal Avenue, Manila. It started while
gasoline was being hosed from a tank truck into the underground storage, right at the
opening of the receiving tank where the nozzle of the hose was inserted. The fire
spread to and burned several neighboring houses, including the personal properties and
effects inside them. Their owners, among them petitioners here, sued respondents
Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the station and the
second as its agent in charge of operation. Negligence on the part of both of them was
attributed as the cause of the fire.
The trial court and the Court of Appeals found that petitioners failed to prove negligence
and that respondents had exercised due care in the premises and with respect to the
supervision of their employees.
The first question before Us refers to the admissibility of certain reports on the fire
prepared by the Manila Police and Fire Departments and by a certain Captain Tinio of
the Armed Forces of the Philippines. Portions of the first two reports are as follows:
1. Police Department report:
Investigation disclosed that at about 4:00 P.M. March 18, 1948, while
Leandro Flores was transferring gasoline from a tank truck, plate No. T5292 into the underground tank of the Caltex Gasoline Station located at
the corner of Rizal Avenue and Antipolo Street, this City, an unknown
Filipino lighted a cigarette and threw the burning match stick near the main
valve of the said underground tank. Due to the gasoline fumes, fire
suddenly blazed. Quick action of Leandro Flores in pulling off the gasoline
hose connecting the truck with the underground tank prevented a terrific

explosion. However, the flames scattered due to the hose from which the
gasoline was spouting. It burned the truck and the following accessorias
and residences.
2. The Fire Department report:
In connection with their allegation that the premises was (sic) subleased for the
installation of a coca-cola and cigarette stand, the complainants furnished this
Office a copy of a photograph taken during the fire and which is submitted
herewith. it appears in this picture that there are in the premises a coca-cola
cooler and a rack which according to information gathered in the neighborhood
contained cigarettes and matches, installed between the gasoline pumps and the
underground tanks.
The report of Captain Tinio reproduced information given by a certain Benito Morales
regarding the history of the gasoline station and what the chief of the fire department
had told him on the same subject.
The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and
hence inadmissible. This ruling is now assigned as error. It is contended: first, that said
reports were admitted by the trial court without objection on the part of respondents;
secondly, that with respect to the police report (Exhibit V-Africa) which appears signed
by a Detective Zapanta allegedly "for Salvador Capacillo," the latter was presented as
witness but respondents waived their right to cross-examine him although they had the
opportunity to do so; and thirdly, that in any event the said reports are admissible as an
exception to the hearsay rule under section 35 of Rule 123, now Rule 130.
The first contention is not borne out by the record. The transcript of the hearing of
September 17, 1953 (pp. 167-170) shows that the reports in question, when offered as
evidence, were objected to by counsel for each of respondents on the ground that they
were hearsay and that they were "irrelevant, immaterial and impertinent." Indeed, in the
court's resolution only Exhibits J, K, K-5 and X-6 were admitted without objection; the
admission of the others, including the disputed ones, carried no such explanation.
On the second point, although Detective Capacillo did take the witness stand, he was
not examined and he did not testify as to the facts mentioned in his alleged report
(signed by Detective Zapanta). All he said was that he was one of those who
investigated "the location of the fire and, if possible, gather witnesses as to the
occurrence, and that he brought the report with him. There was nothing, therefore, on
which he need be cross-examined; and the contents of the report, as to which he did
not testify, did not thereby become competent evidence. And even if he had testified, his
testimony would still have been objectionable as far as information gathered by him
from third persons was concerned.

Petitioners maintain, however, that the reports in themselves, that is, without further
testimonial evidence on their contents, fall within the scope of section 35, Rule 123,
which provides that "entries in official records made in the performance of his duty by a
public officer of the Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just mentioned: (a) that the
entry was made by a public officer, or by another person specially enjoined by law to do
so; (b) that it was made by the public officer in the performance of his duties, or by such
other person in the performance of a duty specially enjoined by law; and (c) that the
public officer or other person had sufficient knowledge of the facts by him stated, which
must have been acquired by him personally or through official information (Moran,
Comments on the Rules of Court, Vol. 3 [1957] p. 398).
Of the three requisites just stated, only the last need be considered here. Obviously the
material facts recited in the reports as to the cause and circumstances of the fire were
not within the personal knowledge of the officers who conducted the investigation. Was
knowledge of such facts, however, acquired by them through official information? As to
some facts the sources thereof are not even identified. Others are attributed to
Leopoldo Medina, referred to as an employee at the gas station were the fire occurred;
to Leandro Flores, driver of the tank truck from which gasoline was being transferred at
the time to the underground tank of the station; and to respondent Mateo Boquiren, who
could not, according to Exhibit V-Africa, give any reason as to the origin of the fire. To
qualify their statements as "official information" acquired by the officers who prepared
the reports, the persons who made the statements not only must have personal
knowledge of the facts stated but must have the duty to give such statements for
record.1
The reports in question do not constitute an exception to the hearsay rule; the facts
stated therein were not acquired by the reporting officers through official information, not
having been given by the informants pursuant to any duty to do so.
The next question is whether or not, without proof as to the cause and origin of the fire,
the doctrine of res ipsa loquitur should apply so as to presume negligence on the part of
appellees. Both the trial court and the appellate court refused to apply the doctrine in
the instant case on the grounds that "as to (its) applicability ... in the Philippines, there
seems to he nothing definite," and that while the rules do not prohibit its adoption in
appropriate cases, "in the case at bar, however, we find no practical use for such
doctrine." The question deserves more than such summary dismissal. The doctrine has
actually been applied in this jurisdiction, in the case of Espiritu vs. Philippine Power and
Development Co. (CA-G.R. No. 3240-R, September 20, 1949), wherein the decision of
the Court of Appeals was penned by Mr. Justice J.B.L. Reyes now a member of the
Supreme Court.

The facts of that case are stated in the decision as follows:

In the afternoon of May 5, 1946, while the plaintiff-appellee and other
companions were loading grass between the municipalities of Bay and Calauan,
in the province of Laguna, with clear weather and without any wind blowing, an
electric transmission wire, installed and maintained by the defendant Philippine
Power and Development Co., Inc. alongside the road, suddenly parted, and one
of the broken ends hit the head of the plaintiff as he was about to board the truck.
As a result, plaintiff received the full shock of 4,400 volts carried by the wire and
was knocked unconscious to the ground. The electric charge coursed through his
body and caused extensive and serious multiple burns from skull to legs, leaving
the bone exposed in some parts and causing intense pain and wounds that were
not completely healed when the case was tried on June 18, 1947, over one year
after the mishap.
The defendant therein disclaimed liability on the ground that the plaintiff had failed to
show any specific act of negligence, but the appellate court overruled the defense under
the doctrine of res ipsa loquitur. The court said:
The first point is directed against the sufficiency of plaintiff's evidence to place
appellant on its defense. While it is the rule, as contended by the appellant, that
in case of noncontractual negligence, or culpa aquiliana, the burden of proof is
on the plaintiff to establish that the proximate cause of his injury was the
negligence of the defendant, it is also a recognized principal that "where the thing
which caused injury, without fault of the injured person, is under the exclusive
control of the defendant and the injury is such as in the ordinary course of things
does not occur if he having such control use proper care, it affords reasonable
evidence, in the absence of the explanation, that the injury arose from
defendant's want of care."
And the burden of evidence is shifted to him to establish that he has observed
due care and diligence. (San Juan Light & Transit Co. v. Requena, 244, U.S. 89,
56 L. ed. 680.) This rule is known by the name of res ipsa loquitur (the
transaction speaks for itself), and is peculiarly applicable to the case at bar,
where it is unquestioned that the plaintiff had every right to be on the highway,
and the electric wire was under the sole control of defendant company. In the
ordinary course of events, electric wires do not part suddenly in fair weather and
injure people, unless they are subjected to unusual strain and stress or there are
defects in their installation, maintenance and supervision; just as barrels do not
ordinarily roll out of the warehouse windows to injure passersby, unless some
one was negligent. (Byrne v. Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, the
leading case that established that rule). Consequently, in the absence of
contributory negligence (which is admittedly not present), the fact that the wire

snapped suffices to raise a reasonable presumption of negligence in its

installation, care and maintenance. Thereafter, as observed by Chief Baron
Pollock, "if there are any facts inconsistent with negligence, it is for the defendant
to prove."
It is true of course that decisions of the Court of Appeals do not lay down doctrines
binding on the Supreme Court, but we do not consider this a reason for not applying the
particular doctrine of res ipsa loquitur in the case at bar. Gasoline is a highly
combustible material, in the storage and sale of which extreme care must be taken. On
the other hand, fire is not considered a fortuitous event, as it arises almost invariably
from some act of man. A case strikingly similar to the one before Us is Jones vs. Shell
Petroleum Corporation, et al., 171 So. 447:
Arthur O. Jones is the owner of a building in the city of Hammon which in the
year 1934 was leased to the Shell Petroleum Corporation for a gasoline filling
station. On October 8, 1934, during the term of the lease, while gasoline was
being transferred from the tank wagon, also operated by the Shell Petroleum
Corporation, to the underground tank of the station, a fire started with resulting
damages to the building owned by Jones. Alleging that the damages to his
building amounted to $516.95, Jones sued the Shell Petroleum Corporation for
the recovery of that amount. The judge of the district court, after hearing the
testimony, concluded that plaintiff was entitled to a recovery and rendered
judgment in his favor for $427.82. The Court of Appeals for the First Circuit
reversed this judgment, on the ground the testimony failed to show with
reasonable certainty any negligence on the part of the Shell Petroleum
Corporation or any of its agents or employees. Plaintiff applied to this Court for a
Writ of Review which was granted, and the case is now before us for
decision.1wph1.t
In resolving the issue of negligence, the Supreme Court of Louisiana held:
Plaintiff's petition contains two distinct charges of negligence one relating to
the cause of the fire and the other relating to the spreading of the gasoline about
the filling station.
Other than an expert to assess the damages caused plaintiff's building by the
fire, no witnesses were placed on the stand by the defendant.
Taking up plaintiff's charge of negligence relating to the cause of the fire, we find
it established by the record that the filling station and the tank truck were under
the control of the defendant and operated by its agents or employees. We further
find from the uncontradicted testimony of plaintiff's witnesses that fire started in
the underground tank attached to the filling station while it was being filled from

the tank truck and while both the tank and the truck were in charge of and being
operated by the agents or employees of the defendant, extended to the hose and
tank truck, and was communicated from the burning hose, tank truck, and
escaping gasoline to the building owned by the plaintiff.
Predicated on these circumstances and the further circumstance of defendant's
failure to explain the cause of the fire or to show its lack of knowledge of the
cause, plaintiff has evoked the doctrine of res ipsa loquitur. There are many
cases in which the doctrine may be successfully invoked and this, we think, is
one of them.
Where the thing which caused the injury complained of is shown to be under the
management of defendant or his servants and the accident is such as in the
ordinary course of things does not happen if those who have its management or
control use proper care, it affords reasonable evidence, in absence of
explanation by defendant, that the accident arose from want of care. (45 C.J.
#768, p. 1193).
This statement of the rule of res ipsa loquitur has been widely approved and
adopted by the courts of last resort. Some of the cases in this jurisdiction in
which the doctrine has been applied are the following, viz.: Maus v. Broderick, 51
La. Ann. 1153, 25 So. 977; Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35
So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co.,
115 La. 63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with equal force here. The
gasoline station, with all its appliances, equipment and employees, was under the
control of appellees. A fire occurred therein and spread to and burned the neighboring
houses. The persons who knew or could have known how the fire started were
appellees and their employees, but they gave no explanation thereof whatsoever. It is a
fair and reasonable inference that the incident happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police Department
(Exh. X-1 Africa) the following appears:
Investigation of the basic complaint disclosed that the Caltex Gasoline Station
complained of occupies a lot approximately 10 m x 10 m at the southwest corner
of Rizal Avenue and Antipolo. The location is within a very busy business district
near the Obrero Market, a railroad crossing and very thickly populated
neighborhood where a great number of people mill around t
until
gasoline

tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded

and this constitute a secondary hazard to its operation which in turn endangers
the entire neighborhood to conflagration.
Furthermore, aside from precautions already taken by its operator the concrete
walls south and west adjoining the neighborhood are only 2-1/2 meters high at
most and cannot avoid the flames from leaping over it in case of fire.
Records show that there have been two cases of fire which caused not only
material damages but desperation and also panic in the neighborhood.
Although the soft drinks stand had been eliminated, this gasoline service station
is also used by its operator as a garage and repair shop for his fleet of taxicabs
numbering ten or more, adding another risk to the possible outbreak of fire at this
already small but crowded gasoline station.
The foregoing report, having been submitted by a police officer in the performance of
his duties on the basis of his own personal observation of the facts reported, may
properly be considered as an exception to the hearsay rule. These facts, descriptive of
the location and objective circumstances surrounding the operation of the gasoline
station in question, strengthen the presumption of negligence under the doctrine of res
ipsa loquitur, since on their face they called for more stringent measures of caution than
those which would satisfy the standard of due diligence under ordinary circumstances.
There is no more eloquent demonstration of this than the statement of Leandro Flores
before the police investigator. Flores was the driver of the gasoline tank wagon who,
alone and without assistance, was transferring the contents thereof into the
underground storage when the fire broke out. He said: "Before loading the underground
tank there were no people, but while the loading was going on, there were people who
went to drink coca-cola (at the coca-cola stand) which is about a meter from the hole
leading to the underground tank." He added that when the tank was almost filled he
went to the tank truck to close the valve, and while he had his back turned to the
"manhole" he, heard someone shout "fire."
Even then the fire possibly would not have spread to the neighboring houses were it not
for another negligent omission on the part of defendants, namely, their failure to provide
a concrete wall high enough to prevent the flames from leaping over it. As it was the
concrete wall was only 2-1/2 meters high, and beyond that height it consisted merely of
galvanized iron sheets, which would predictably crumple and melt when subjected to
intense heat. Defendants' negligence, therefore, was not only with respect to the cause
of the fire but also with respect to the spread thereof to the neighboring houses.
There is an admission on the part of Boquiren in his amended answer to the second
amended complaint that "the fire was caused through the acts of a stranger who,

without authority, or permission of answering defendant, passed through the gasoline

station and negligently threw a lighted match in the premises." No evidence on this point
was adduced, but assuming the allegation to be true certainly any unfavorable
inference from the admission may be taken against Boquiren it does not extenuate
his negligence. A decision of the Supreme Court of Texas, upon facts analogous to
those of the present case, states the rule which we find acceptable here. "It is the rule
that those who distribute a dangerous article or agent, owe a degree of protection to the
public proportionate to and commensurate with a danger involved ... we think it is the
generally accepted rule as applied to torts that 'if the effects of the actor's negligent
conduct actively and continuously operate to bring about harm to another, the fact that
the active and substantially simultaneous operation of the effects of a third person's
innocent, tortious or criminal act is also a substantial factor in bringing about the harm,
does not protect the actor from liability.' (Restatement of the Law of Torts, vol. 2, p.
1184, #439). Stated in another way, "The intention of an unforeseen and unexpected
cause, is not sufficient to relieve a wrongdoer from consequences of negligence, if such
negligence directly and proximately cooperates with the independent cause in the
resulting injury." (MacAfee, et al. vs. Traver's Gas Corporation, 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the damages caused to
appellants. This issue depends on whether Boquiren was an independent contractor, as
held by the Court of Appeals, or an agent of Caltex. This question, in the light of the
facts not controverted, is one of law and hence may be passed upon by this Court.
These facts are: (1) Boquiren made an admission that he was an agent of Caltex; (2) at
the time of the fire Caltex owned the gasoline station and all the equipment therein; (3)
Caltex exercised control over Boquiren in the management of the state; (4) the delivery
truck used in delivering gasoline to the station had the name of CALTEX painted on it;
and (5) the license to store gasoline at the station was in the name of Caltex, which paid
the license fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa;
Exhibit Y-Africa).
In Boquiren's amended answer to the second amended complaint, he denied that he
directed one of his drivers to remove gasoline from the truck into the tank and alleged
that the "alleged driver, if one there was, was not in his employ, the driver being an
employee of the Caltex (Phil.) Inc. and/or the owners of the gasoline station." It is true
that Boquiren later on amended his answer, and that among the changes was one to
the effect that he was not acting as agent of Caltex. But then again, in his motion to
dismiss appellants' second amended complaint the ground alleged was that it stated no
cause of action since under the allegations thereof he was merely acting as agent of
Caltex, such that he could not have incurred personal liability. A motion to dismiss on
this ground is deemed to be an admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the equipment therein, but
claims that the business conducted at the service station in question was owned and

operated by Boquiren. But Caltex did not present any contract with Boquiren that would
reveal the nature of their relationship at the time of the fire. There must have been one
in existence at that time. Instead, what was presented was a license agreement
manifestly tailored for purposes of this case, since it was entered into shortly before the
expiration of the one-year period it was intended to operate. This so-called license
agreement (Exhibit 5-Caltex) was executed on November 29, 1948, but made effective
as of January 1, 1948 so as to cover the date of the fire, namely, March 18, 1948. This
retroactivity provision is quite significant, and gives rise to the conclusion that it was
designed precisely to free Caltex from any responsibility with respect to the fire, as
shown by the clause that Caltex "shall not be liable for any injury to person or property
while in the property herein licensed, it being understood and agreed that LICENSEE
(Boquiren) is not an employee, representative or agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be considered
an independent contractor. Under that agreement Boquiren would pay Caltex the purely
nominal sum of P1.00 for the use of the premises and all the equipment therein. He
could sell only Caltex Products. Maintenance of the station and its equipment was
subject to the approval, in other words control, of Caltex. Boquiren could not assign or
transfer his rights as licensee without the consent of Caltex. The license agreement was
supposed to be from January 1, 1948 to December 31, 1948, and thereafter until
terminated by Caltex upon two days prior written notice. Caltex could at any time cancel
and terminate the agreement in case Boquiren ceased to sell Caltex products, or did not
conduct the business with due diligence, in the judgment of Caltex. Termination of the
contract was therefore a right granted only to Caltex but not to Boquiren. These
provisions of the contract show the extent of the control of Caltex over Boquiren. The
control was such that the latter was virtually an employee of the former.
Taking into consideration the fact that the operator owed his position to the
company and the latter could remove him or terminate his services at will; that
the service station belonged to the company and bore its tradename and the
operator sold only the products of the company; that the equipment used by the
operator belonged to the company and were just loaned to the operator and the
company took charge of their repair and maintenance; that an employee of the
company supervised the operator and conducted periodic inspection of the
company's gasoline and service station; that the price of the products sold by the
operator was fixed by the company and not by the operator; and that the receipts
signed by the operator indicated that he was a mere agent, the finding of the
Court of Appeals that the operator was an agent of the company and not an
independent contractor should not be disturbed.
To determine the nature of a contract courts do not have or are not bound to rely
upon the name or title given it by the contracting parties, should thereby a
controversy as to what they really had intended to enter into, but the way the

contracting parties do or perform their respective obligations stipulated or agreed

upon may be shown and inquired into, and should such performance conflict with
the name or title given the contract by the parties, the former must prevail over
the latter. (Shell Company of the Philippines, Ltd. vs. Firemens' Insurance
Company of Newark, New Jersey, 100 Phil. 757).
The written contract was apparently drawn for the purpose of creating the
apparent relationship of employer and independent contractor, and of avoiding
liability for the negligence of the employees about the station; but the company
was not satisfied to allow such relationship to exist. The evidence shows that it
immediately assumed control, and proceeded to direct the method by which the
work contracted for should be performed. By reserving the right to terminate the
contract at will, it retained the means of compelling submission to its orders.
Having elected to assume control and to direct the means and methods by which
the work has to be performed, it must be held liable for the negligence of those
performing service under its direction. We think the evidence was sufficient to
sustain the verdict of the jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d,
183).
Caltex further argues that the gasoline stored in the station belonged to Boquiren. But
no cash invoices were presented to show that Boquiren had bought said gasoline from
Caltex. Neither was there a sales contract to prove the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the
amount of P2,000.00 collected by them on the insurance of the house. The deduction is
now challenged as erroneous on the ground that Article 2207 of the New Civil Code,
which provides for the subrogation of the insurer to the rights of the insured, was not yet
in effect when the loss took place. However, regardless of the silence of the law on this
point at that time, the amount that should be recovered be measured by the damages
actually suffered, otherwise the principle prohibiting unjust enrichment would be
violated. With respect to the claim of the heirs of Ong P7,500.00 was adjudged by the
lower court on the basis of the assessed value of the property destroyed, namely,
P1,500.00, disregarding the testimony of one of the Ong children that said property was
worth P4,000.00. We agree that the court erred, since it is of common knowledge that
the assessment for taxation purposes is not an accurate gauge of fair market value, and
in this case should not prevail over positive evidence of such value. The heirs of Ong
are therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and respondents-appellees are held
liable solidarily to appellants, and ordered to pay them the aforesaid sum of P9,005.80
and P10,000.00, respectively, with interest from the filing of the complaint, and costs.
FIRST DIVISION

[G.R. No. 107735. February 1, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RICARDO SAN GABRIEL y
ORTIZ, defendant-appellant.
DECISION
BELLOSILLO, J.:
RICARDO O. SAN GABRIEL was charged with murder in an Information alleging
that on 26 November 1989, armed with a bladed weapon, in conspiracy with Ramon
Doe, with treachery, evident premeditation and intent to kill, he assaulted and stabbed
to death Jaime A. Tonog.[1]
The trial court convicted the accused as charged and sentenced him to life
imprisonment and to pay the heirs of Jaime Tonog the sum of P30,000, plus costs.[2]
The accused is now before us on appeal.
The evidence shows that at around seven oclock in the evening of 26 November
1989, within the vicinity of Pier 14 at North Harbor along Marcos Road, Manila, a
fistfight ensued between Jaime Tonog on one hand and the accused Ricardo San
Gabriel together with Ramon Doe on the other. The fight was eventually broken up
when onlookers pacified the protagonists. Ricardo and Ramon then hastened
towards Marcos Road but in no time were back with bladed weapons. They approached
Tonog surreptitiously, surrounded him and simultaneously stabbed him in the stomach
and at the back, after which the assailants ran towards the highway leaving Tonog
behind on the ground. He was then brought to Mary JohnstonHospital where he was
pronounced dead on arrival.
Dr. Marcial G. Cenido, Medico-Legal Officer of the Western Police District,
autopsied the cadaver of the victim and reported that it sustained two (2) penetrating
stab wounds each caused by a single-bladed instrument. He opined that both wounds
were fatal.[3]
The accused has a different version. He testified that he saw Tonog drunk; Tonog
even attempted to box him but he parried his blow; Tonog continued walking but when
he chanced upon Ramon he suddenly and without provocation boxed and kicked
Ramon; Ramon fought back but was subdued by his bigger assailant so the former ran
towards the highway; when Tonog met a certain Mando he boxed the latter who
however fought back despite his (accused) warning not to; at this moment he saw
Ramon return with a bolo on hand; he warned Ramon not to fight but his advice went
unheeded; instead, with bolo on hand Ramon struck Tonog on the belly; when Mando

saw what happened he (Mando) pulled out his knife and also stabbed Tonog at the
back; Ramon and Mando then fled towards the highway.
The accused further claimed that he even stayed with the victim and called out the
latters companions to bring him to the hospital; that prosecution witness Brenda
Gonzales only arrived at the crime scene after Tonog was already taken to the hospital;
that Brenda even inquired from him what happened and then prodded him to testify; that
his refusal coupled with the fact that he owed Gonzales some money earned him the ire
of the latter and that was why he was charged for the death of Tonog.
Accused-appellant claims in this appeal that the trial court erred: (a) in giving
credence to the testimonies of prosecution witnesses Brenda Gonzales and Pio
Ochobillo, and for discrediting his; (b) in finding that the killing was attended with evident
premeditation; (c) in ruling that he committed treachery and, (d) in convicting him of
murder.[4]
We sustain the conviction of the accused for murder. It is settled that findings of fact
of the trial court are accorded greatest respect by the appellate court absent any abuse
of discretion,[5] and none is perceivable in the case at bench; hence we affirm the factual
findings of the trial court.
The accused contends that the testimonies of the prosecution witnesses are
incredible and conflicting. We however find otherwise. Gonzales and Ochobillo, as
observed by the trial court, testified in a direct and candid manner. No evil motive is
attributed to them as to testify falsely against the accused. That Gonzales harbored a
grudge against the accused because he owed her some money, and even enticed her
customers into patronizing another carinderia, can hardly be believed. We are not
convinced that Brenda Gonzales would testify against accused-appellant for a crime so
grave simply because he owed her a measly sum of P300.00. That he enticed the
customers of Gonzales into patronizing another carinderia is belied by the fact that on
the night of the incident he was, as he claimed, eating at the carinderia of Gonzales. If
there be any testimony that should be considered incredible and illogical it must be that
of the accused. His assertion that Mando stabbed the victim should not receive any
evidentiary value when weighed against the positive assertion of the prosecution
witnesses that the accused was the assailant of Jaime Tonog.
Quite interestingly, the accused did not offer any information regarding the person
and circumstances of Mando. Up to this date Mando remains a myth. Not a single
witness was presented by the defense to prove who Mando was, nor even a hint of his
personal circumstances. During the entire proceedings in the court below Mando was
never mentioned by the prosecution witnesses. Nobody ever implicated him except the
accused. In fact, there should have been no difficulty procuring witnesses to testify on
the part of the accused as the incident was viewed openly by a multitude of

bystanders. His failure to present any witness pointing to Mando as the perpetrator of
the crime convinces us that Mando in fact existed only as a figment of the mind.
The accused also asserts that Gonzales arrived at the crime scene only after the
victim was brought to the hospital and that she even inquired from him about what
happened.
Again we are not persuaded. The statement contradicts the earlier version of the
accused that Gonzales was prejudiced against him as he owed her some money. For,
granting that Gonzales had a grudge against him it was not likely that she would inquire
from him about the incident as there were other persons then present who could shed
light on the startling occurrence.
Equally dubious is the avowal of the accused that Gonzales arrived at the crime
scene only after the victim was rushed to the hospital considering that the incident took
place just in front of her store. Besides, this claim was easily demolished by Gonzales
detailed account of the fight.
The fact that the witnesses did not immediately report the incident to the police does
not necessarily discredit them. After all, reports were made albeit by different
persons. The accused banks on the apparent inconsistency as to why Gonzales failed
to give immediately her account of the killing to the authorities. But the discrepancy is so
minor that it cannot undermine her credibility nor detract from the truth that she
personally witnessed the incident and positively identified the accused.
The accused leans heavily on the Advance Information Sheet[6] prepared by Pat.
Steve Casimiro which did not mention him at all and named only Ramon Doe as the
principal suspect.Unfortunately this cannot defeat the positive and candid testimonies of
the prosecution witnesses. Entries in official records, as in the case of a police blotter,
are only prima facie evidence of the facts therein stated. They are not conclusive. The
entry in the police blotter is not necessarily entitled to full credit for it could be
incomplete and inaccurate, sometimes from either partial suggestions or for want of
suggestions or inquiries, without the aid of which the witness may be unable to recall
the connected collateral circumstances necessary for the correction of the first
suggestion of his memory and for his accurate recollection of all that pertain to the
subject. It is understandable that the testimony during the trial would be more lengthy
and detailed than the matters stated in the police blotter.[7] Significantly, the Advance
Information Sheet was never formally offered by the defense during the proceedings in
the court below.Hence any reliance by the accused on the document must fail since the
court cannot consider any evidence which has not been formally offered. [8]
Parenthetically, the Advance Information Sheet was prepared by the police officer
only after interviewing Camba, an alleged eyewitness. The accused then could have

compelled the attendance of Camba as a witness. The failure to exert the slightest effort
to present Camba on the part of the accused should militate against his cause.
Entries in official records made in the performance of his duty by a public officer or
by a person in the performance of a duty specially enjoined by law are prima
facie evidence of the facts therein stated. [9] But to be admissible in evidence three (3)
requisites must concur: (a) The entry was made by a police officer or by another person
specially enjoined by law to do so; (b) It was made by the public officer in the
performance of his duties or by such other person in the performance of a duty specially
enjoined by law; and, (c) The public officer or other person had sufficient knowledge of
the facts by him stated, which must have been acquired by him personally or through
official information.[10]
The Advance Information Sheet does not constitute an exception to the hearsay
rule, hence, inadmissible. The public officer who prepared the document had no
sufficient and personal knowledge of the stabbing incident. Any information possessed
by him was acquired from Camba which therefore could not be categorized as official
information because in order to be classified as such the persons who made the
statements not only must have personal knowledge of the facts stated but must have
the duty to give such statements for the record. [11] In the case of Camba, he was not
legally so obliged to give such statements.
The accused enumerates discrepancies in the testimonies of the prosecution
witnesses. Thus, according to him, it was testified that the victim was stabbed by the
accused at the back but failed to point out its precise location. The stabbing admittedly
occurred at around seven oclock in the evening but the Advance Information Sheet
reported 6:30 p.m. One witness testified that the fistfight was only between the victim
and Ramon Doe, while another reported that it involved the victim, Ramon Doe and the
accused. Further, it was not accurately determined whether Ramon and the accused
returned to the scene of the crime within five (5) minutes or after the lapse thereof.
As previously stated, the discrepancies do not militate against the fact firmly
established by the prosecution that Tonog was stabbed at the back by the accused and
by Ramon Doe in the abdomen. Any discordance noted is so minor and insignificant
that no further consideration is essential. The most honest witnesses make mistakes
sometimes, but such innocent lapses do not necessarily impair their credibility. The
testimony of a witness must be considered and calibrated in its entirety and not by
truncated portions thereof or isolated passages therein. [12]
The presence of the accused in the vicinity even after the commission of the crime
does not in any way extricate him from his dilemma. Certainly, it is no proof of his
innocence.

The court a quo properly considered the aggravating circumstance of treachery in

convicting the accused of murder. Treachery is present when the offender commits any
of the crimes against person, employing means, methods or forms in the execution
thereof which tend directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make. [13] Alevosia or treachery
presumes an attack that is deliberate and unexpected. There is no treachery when the
victim is placed on guard, as when a heated argument preceded the attack, especially
when the victim was standing face to face with his assailants, and the initial assault
could not have been unforeseen.[14]
It is true that in the case at bench the attack was preceded by a fistfight. It was
however established that they were already pacified by onlookers when the accused
and Ramon returned. Lulled into complacency the victim simply stayed where he was
before the fistfight when after a brief moment the accused together with Ramon
returned with bladed weapons.Both approached the victim and circled him
surreptitiously. The attack was sudden and simultaneous that the victim was never
given a chance to defend himself. As we have held in People v. Balisteros,[15] where a
victim was totally unprepared for the unexpected attack from behind and had no
weapon to resist it, the stabbing could not but be considered as treacherous. The
evidence proved that the victim was caught unaware by the sudden assault. No weapon
was found, nor even intimated to be, in his possession.
Conversely the court a quo should have disregarded evident premeditation. Evident
premeditation requires a showing that the execution of the criminal act was preceded by
cool thought and reflection upon the resolution to carry out the criminal intent during a
space of time sufficient to arrive at a calm judgment. [16] Evidence for the prosecution
showed that after the fight was broken up the accused and Ramon Doe proceeded
towards the highway. They returned only after a lapse of approximately
five (5) minutes. From the foregoing we cannot conclude that the accused had sufficient
time within which to meditate on the consequences of his acts. Meditation necessitates
that it be evident and proven. Be that as it may, treachery as a qualifying circumstance
having attended the killing, the conviction of the accused for murder still holds.
WHEREFORE,. the decision of the court a quo in Crim. Case No. 90-81744
dated 25 July 1991 convicting accused-appellant RICARDO SAN GABRIEL Y ORTIZ of
murder is AFFIRMED. The penalty of life imprisonment however is MODIFIED
to reclusion perpetua,[17] while the award of P30,000.00 as indemnity is INCREASED to
P50,000.00 conformably with existing jurisprudence. Costs against accused-appellant.
SO ORDERED.
FIRST DIVISION

BARCELON,
ROXAS
SECURITIES, INC. (now known as
UBP Securities, Inc.)
Petitioner,

G. R. No. 157064

Present:

PANGANIBAN, C.J.,
- versus -

Chairman,
YNARES-SANTIAGO
AUSTRIA-MARTINEZ,
CALLEJO, SR., and

COMMISSIONER OF INTERNAL
REVENUE,

CHICO-NAZARIO, JJ.

Respondent.

Promulgated:

August 7, 2006
x--------------------------------------------------x

DECISION

CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari, under Rule 45 of the Rules of Court, seeking
to set aside the Decision of the Court of Appeals in CA-G.R. SP No. 60209 dated 11
July 2002,[1] ordering the petitioner to pay the Government the amount
of P826,698.31 as deficiency income tax for the year 1987 plus 25% surcharge and
20% interest per annum. The Court of Appeals, in its assailed Decision, reversed the
Decision of the Court of Tax Appeals (CTA) dated 17 May 2000[2] in C.T.A. Case No.
5662.

Petitioner Barcelon, Roxas Securities Inc. (now known as UBP Securities, Inc.) is a
corporation engaged in the trading of securities. On 14 April 1988, petitioner filed its
Annual Income Tax Return for taxable year 1987. After an audit investigation conducted
by the Bureau of Internal Revenue (BIR), respondent Commissioner of Internal
Revenue (CIR) issued an assessment for deficiency income tax in the amount
of P826,698.31 arising from the disallowance of the item on salaries, bonuses and
allowances in the amount ofP1,219,093,93 as part of the deductible business expense
since petitioner failed to subject the salaries, bonuses and allowances to withholding
taxes. This assessment was covered by Formal Assessment Notice No. FAN-1-87-91000649 dated 1 February 1991, which, respondent alleges, was sent to petitioner
through registered mail on 6 February 1991.However, petitioner denies receiving the
formal assessment notice.[3]

On 17 March 1992, petitioner was served with a Warrant of Distraint and/or Levy to
enforce collection of the deficiency income tax for the year 1987. Petitioner filed a
formal protest, dated 25 March 1992, against the Warrant of Distraint and/or Levy,
requesting for its cancellation. On 3 July 1998, petitioner received a letter dated 30 April
1998 from the respondent denying the protest with finality.[4]

On 31 July 1998, petitioner filed a petition for review with the CTA. After due notice and
hearing, the CTA rendered a decision in favor of petitioner on 17 May 2000. The CTA ruled on
the primary issue of prescription and found it unnecessary to decide the issues on the validity
and propriety of the assessment. It maintained that while a mailed letter is deemed received by
the addressee in the course of mail, this is merely a disputable presumption. It reasoned that
the direct denial of the petitioner shifts the burden of proof to the respondent that the mailed
letter was actually received by the petitioner. The CTA found the BIR records submitted by the
respondent immaterial, self-serving, and therefore insufficient to prove that the assessment
notice was mailed and duly received by the petitioner.[5] The dispositive portion of this decision
reads:

WHEREFORE, in view of the foregoing, the 1988 deficiency tax

assessment against petitioner is hereby CANCELLED. Respondent is
hereby ORDERED TO DESIST from collecting said deficiency tax. No
pronouncement as to costs.[6]

On 6 June 2000, respondent moved for reconsideration of the aforesaid decision but
was denied by the CTA in a Resolution dated 25 July 2000. Thereafter, respondent appealed to
the Court of Appeals on 31 August 2001. In reversing the CTA decision, the Court of Appeals
found the evidence presented by the respondent to be sufficient proof that the tax assessment
notice was mailed to the petitioner, therefore the legal presumption that it was received should
apply.[7] Thus, the Court of Appeals ruled that:

WHEREFORE, the petition is hereby GRANTED. The

decision dated May 17, 2000 as well as the Resolution dated July
25, 2000 are hereby REVERSED and SET ASIDE, and a new on
entered ordering the respondent to pay the amount
of P826,698.31 as deficiency income tax for the year 1987 plus
25% surcharge and 20% interest per annum from February 6, 1991
until fully paid pursuant to Sections 248 and 249 of the Tax Code. [8]

Petitioner moved for reconsideration of the said decision but the same was denied by
the Court of Appeals in its assailed Resolution dated 30 January 2003.[9]

Hence, this Petition for Review on Certiorari raising the following issues:

W HETHER OR NOT LEGAL BASES EXIST FOR THE COURT OF

APPEALS FINDING THAT THE COURT OF TAX APPEALS
COMMITT ED GROSS ERROR IN THE APPRECIATION OF FACT S.

II

WHETHER OR NOT THE COURT OF APPEALS WAS CORRECT IN

REVERSING THE SUBJECT DECISION OF THE COURT OF TAX
APPEALS.

III

WHETHER OR NOT THE RIGHT OF THE BUREAU OF INTERNAL

REVENUE TO ASSESS PETITIONER FOR ALLEGED DEFICIENCY
INCOME TAX FOR 1987 HAS PRESCRIBED.

IV

WHETHER OR NOT THE RIGHT OF THE BUREAU OF INTERNAL

REVENUE TO COLLECT THE SUBJECT ALLEGED DEFICIENCY
INCOME TAX FOR 1987 HAS PRESCRIBED.

WHETHER OR NOT PETITIONER IS LIABLE FOR THE ALLEGED

DEFICIENCY INCOME TAX ASSESSMENT FOR 1987.

VI

WHETHER OR NOT THE SUBJECT ASSESSMENT IS VIOLATIVE OF

THE RIGHT OF PETITIONER TO DUE PROCESS.[10]

This Court finds the instant Petition meritorious.

The core issue in this case is whether or not respondents right to assess petitioners
alleged deficiency income tax is barred by prescription, the resolution of which depends on
reviewing the findings of fact of the Court of Appeals and the CTA.

While the general rule is that factual findings of the Court of Appeals are binding
on this Court, there are, however, recognized exceptions [11] thereto, such as when the
findings are contrary to those of the trial court or, in this case, the CTA. [12]

In its Decision, the CTA resolved the issues raised by the parties thus:

Jurisprudence is replete with cases holding that if the taxpayer

denies ever having received an assessment from the BIR, it is incumbent
upon the latter to prove by competent evidence that such notice was
indeed received by the addressee. The onus probandi was shifted to
respondent to prove by contrary evidence that the Petitioner received the
assessment in the due course of mail. The Supreme Court has
consistently held that while a mailed letter is deemed received by the
addressee in the course of mail, this is merely a disputable presumption
subject tocontroversion and a direct denial thereof shifts the burden to the
party favored by the presumption to prove that the mailed letter was
indeed received by the addressee (Republic vs. Court of Appeals, 149
SCRA 351). Thus as held by the Supreme Court in Gonzalo P. Nava vs.
Commissioner of Internal Revenue, 13 SCRA 104, January 30, 1965:

The facts to be proved to raise this presumption are (a)

that the letter was properly addressed with postage prepaid,
and (b) that it was mailed. Once these facts are proved, the
presumption is that the letter was received by the addressee
as soon as it could have been transmitted to him in the

ordinary course of the mail. But if one of the said facts fails
to appear, the presumption does not lie. (VI, Moran,
Comments on the Rules of Court, 1963 ed, 56-57
citing Enriquez vs. Sunlife Assurance of Canada, 41 Phil
269).

In the instant case, Respondent utterly failed to discharge this

duty. No substantial evidence was ever presented to prove that the
assessment notice No. FAN-1-87-91-000649 or other supposed notices
subsequent thereto were in fact issued or sent to the taxpayer. As a matter
of fact, it only submitted the BIR record book which allegedly contains the
list of taxpayers names, the reference number, the year, the nature of tax,
the city/municipality and the amount (see Exh. 5-a for the
Respondent). Purportedly, Respondent intended to show to this Court that
all assessments made are entered into a record book in chronological
order outlining the details of the assessment and the taxpayer liable
thereon. However, as can be gleaned from the face of the exhibit, all
entries thereon appears to be immaterial and impertinent in proving that
the assessment notice was mailed and duly received by
Petitioner. Nothing indicates therein all essential facts that could sustain
the burden of proof being shifted to the Respondent. What is essential to
prove the fact of mailing is the registry receipt issued by the Bureau of
Posts or the Registry return card which would have been signed by the
Petitioner or its authorized representative. And if said documents cannot
be located, Respondent at the very least, should have submitted to the
Court a certification issued by the Bureau of Posts and any other pertinent
document which is executed with the intervention of the Bureau of
Posts. This Court does not put much credence to the self serving
documentations made by the BIR personnel especially if they are
unsupported by substantial evidence establishing the fact of mailing. Thus:

While we have held that an assessment is made

when sent within the prescribed period, even if received by
the taxpayer after its expiration (Coll. of Int. Rev. vs.
Bautista, L-12250 and L-12259, May 27, 1959), this ruling
makes it the more imperative that the release, mailing or
sending of the notice be clearly and satisfactorily
proved. Mere notations made without the taxpayers
intervention, notice or control, without adequate supporting
evidence cannot suffice; otherwise, the taxpayer would be at
the mercy of the revenue offices, without adequate

protection or defense. (Nava vs. CIR, 13 SCRA 104,

January 30, 1965).

xxxx

The failure of the respondent to prove receipt of the assessment by

the Petitioner leads to the conclusion that no assessment was
issued. Consequently, the governments right to issue an assessment for
the said period has already prescribed. (Industrial Textile Manufacturing
Co. of the Phils., Inc. vs. CIR CTA Case 4885, August 22, 1996).[13]

Jurisprudence has consistently shown that this Court accords the findings of fact
by the CTA with the highest respect. In Sea-Land Service Inc. v. Court of Appeals [14] this
Court recognizes that the Court of Tax Appeals, which by the very nature of its function
is dedicated exclusively to the consideration of tax problems, has necessarily developed
an expertise on the subject, and its conclusions will not be overturned unless there has
been an abuse or improvident exercise of authority. Such findings can only be disturbed
on appeal if they are not supported by substantial evidence or there is a showing of
gross error or abuse on the part of the Tax Court. [15] In the absence of any clear and
convincing proof to the contrary, this Court must presume that the CTA rendered a
decision which is valid in every respect.

Under Section 203[16] of the National Internal Revenue Code (NIRC), respondent
had three (3) years from the last day for the filing of the return to send an assessment
notice to petitioner. In the case of Collector of Internal Revenue v. Bautista, [17] this Court
held that an assessment is made within the prescriptive period if notice to this effect is
released, mailed or sent by the CIR to the taxpayer within said period. Receipt thereof
by the taxpayer within the prescriptive period is not necessary. At this point, it should be
clarified that the rule does not dispense with the requirement that the taxpayer should
actually receive, even beyond the prescriptive period, the assessment notice which was
timely released, mailed and sent.

In the present case, records show that petitioner filed its Annual Income Tax
Return for taxable year 1987 on 14 April 1988.[18] The last day for filing by petitioner of
its return was on 15 April 1988,[19] thus, giving respondent until 15 April 1991 within
which to send an assessment notice. While respondent avers that it sent the

assessment notice dated 1 February 1991 on 6 February 1991, within the three (3)-year
period prescribed by law, petitioner denies having received an assessment notice from
respondent. Petitioner alleges that it came to know of the deficiency tax assessment
only on 17 March 1992 when it was served with the Warrant of Distraint and Levy.[20]

In Protectors Services, Inc. v. Court of Appeals,[21] this Court ruled that when a
mail matter is sent by registered mail, there exists a presumption, set forth under
Section 3(v), Rule 131 of the Rules of Court, [22] that it was received in the regular course
of mail. The facts to be proved in order to raise this presumption are: (a) that the letter
was properly addressed with postage prepaid; and (b) that it was mailed. While a mailed
letter is deemed received by the addressee in the ordinary course of mail, this is still
merely a disputable presumption subject to controversion, and a direct denial of the
receipt thereof shifts the burden upon the party favored by the presumption to prove that
the mailed letter was indeed received by the addressee. [23]
In the present case, petitioner denies receiving the assessment notice, and the
respondent was unable to present substantial evidence that such notice was, indeed,
mailed or sent by the respondent before the BIRs right to assess had prescribed and
that said notice was received by the petitioner. The respondent presented the BIR
record book where the name of the taxpayer, the kind of tax assessed, the registry
receipt number and the date of mailing were noted. The BIR records custodian,
Ingrid Versola, also testified that she made the entries therein. Respondent offered the
entry in the BIR record book and the testimony of its record custodian as entries in
official records in accordance with Section 44, Rule 130 of the Rules of Court, [24] which
states that:

Section 44. Entries in official records. - Entries in official records

made in the performance of his duty by a public officer of
the Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein stated.

The foregoing rule on evidence, however, must be read in accordance with this
Courts pronouncement in Africa v. Caltex (Phil.), Inc.,[25] where it has been held that an
entrant must have personal knowledge of the facts stated by him or such facts were
acquired by him from reports made by persons under a legal duty to submit the same.

There are three requisites for admissibility under the rule just
mentioned: (a) that the entry was made by a public officer, or by
another person specially enjoined by law to do so; (b) that it was
made by the public officer in the performance of his duties, or by
such other person in the performance of a duty specially enjoined by
law; and (c) that the public officer or other person had sufficient
knowledge of the facts by him stated, which must have been
acquired by him personally or through official information x x x.

In this case, the entries made by Ingrid Versola were not based on her personal
knowledge as she did not attest to the fact that she personally prepared and mailed the
assessment notice. Nor was it stated in the transcript of stenographic notes [26] how and from
whom she obtained the pertinent information. Moreover, she did not attest to the fact that she
acquired the reports from persons under a legal duty to submit the same. Hence, Rule 130,
Section 44 finds no application in the present case. Thus, the evidence offered by respondent
does not qualify as an exception to the rule against hearsay evidence.

Furthermore, independent evidence, such as the registry receipt of the assessment

notice, or a certification from the Bureau of Posts, could have easily been obtained. Yet
respondent failed to present such evidence.

In the case of Nava v. Commissioner of Internal Revenue, [27] this Court stressed
on the importance of proving the release, mailing or sending of the notice.

While we have held that an assessment is made when sent within the
prescribed period, even if received by the taxpayer after its expiration
(Coll. of Int. Rev. vs. Bautista, L-12250 and L-12259, May 27, 1959), this
ruling makes it the more imperative that the release, mailing, or sending of
the notice be clearly and satisfactorily proved. Mere notations made
without the taxpayers intervention, notice, or control, without adequate
supporting evidence, cannot suffice; otherwise, the taxpayer would be at
the mercy of the revenue offices, without adequate protection or defense.

In the present case, the evidence offered by the respondent fails to convince this Court
that Formal Assessment Notice No. FAN-1-87-91-000649 was released, mailed, or sent
before 15 April 1991, or before the lapse of the period of limitation upon assessment and
collection prescribed by Section 203 of the NIRC. Such evidence, therefore, is insufficient to
give rise to the presumption that the assessment notice was received in the regular course of
mail. Consequently, the right of the government to assess and collect the alleged deficiency tax
is barred by prescription.

IN VIEW OF THE FOREGOING, the instant Petition is GRANTED. The assailed

Decision of the Court of Appeals in CA-G.R. SP No. 60209 dated 11 July 2002, is
hereby REVERSED and SET ASIDE, and the Decision of the Court of Tax Appeals in C.T.A.
Case No. 5662, dated 17 May 2000, cancelling the 1988 Deficiency Tax Assessment
against Barcelon, Roxas Securitites, Inc. (now known as UPB Securities, Inc.) for being barred
by prescription, is hereby REINSTATED. No costs.

SO ORDERED.
THIRD DIVISION
[G.R. No. 107518. October 8, 1998]
PNOC SHIPPING AND TRANSPORT CORPORATION, petitioner, vs. HONORABLE
COURT
OF
APPEALS
and
MARIA
EFIGENIA
FISHING
CORPORATION, respondents.
DECISION
ROMERO, J.:
A party is entitled to adequate compensation only for such pecuniary loss actually
suffered and duly proved.[1] Indeed, basic is the rule that to recover actual damages, the

amount of loss must not only be capable of proof but must actually be proven with a
reasonable degree of certainty, premised upon competent proof or best evidence
obtainable of the actual amount thereof. [2] The claimant is duty-bound to point out
specific facts that afford a basis for measuring whatever compensatory damages are
borne.[3] A court cannot merely rely on speculations, conjectures, or guesswork as to the
fact and amount of damages [4] as well as hearsay[5] or uncorroborated testimony whose
truth is suspect.[6] Such are the jurisprudential precepts that the Court now applies in
resolving the instant petition.
The records disclose that in the early morning of September 21, 1977, the M/V
Maria Efigenia XV, owned by private respondent Maria Efigenia Fishing Corporation,
was navigating the waters near Fortune Island in Nasugbu, Batangas on its way to
Navotas, Metro Manila when it collided with the vessel Petroparcel which at the time
was owned by the Luzon Stevedoring Corporation (LSC).
After investigation was conducted by the Board of Marine Inquiry, Philippine Coast
Guard Commandant Simeon N. Alejandro rendered a decision finding the Petroparcel at
fault. Based on this finding by the Board and after unsuccessful demands on petitioner,
[7]
private respondent sued the LSC and the Petroparcel captain, Edgardo Doruelo,
before the then Court of First Instance of Caloocan City, paying thereto the docket fee of
one thousand two hundred fifty-two pesos (P1,252.00) and the legal research fee of two
pesos (P2.00).[8] In particular, private respondent prayed for an award of P692,680.00,
allegedly representing the value of the fishing nets, boat equipment and cargoes of M/V
Maria Efigenia XV, with interest at the legal rate plus 25% thereof as attorneys
fees. Meanwhile, during the pendency of the case, petitioner PNOC Shipping and
Transport Corporation sought to be substituted in place of LSC as it had already
acquired ownership of the Petroparcel.[9]
For its part, private respondent later sought the amendment of its complaint on the
ground that the original complaint failed to plead for the recovery of the lost value of the
hull of M/V Maria Efigenia XV.[10] Accordingly, in the amended complaint, private
respondent averred that M/V Maria Efigenia XV had an actual value of P800,000.00 and
that, after deducting the insurance payment of P200,000.00, the amount of P600,000.00
should likewise be claimed. The amended complaint also alleged that inflation resulting
from the devaluation of the Philippine peso had affected the replacement value of the
hull of the vessel, its equipment and its lost cargoes, such that there should be a
reasonable determination thereof. Furthermore, on account of the sinking of the vessel,
private respondent supposedly incurred unrealized profits and lost business
opportunities that would thereafter be proven. [11]
Subsequently, the complaint was further amended to include petitioner as a
defendant[12] which the lower court granted in its order of September 16, 1985. [13] After
petitioner had filed its answer to the second amended complaint, on February 5, 1987,

the lower court issued a pre-trial order [14] containing, among other things, a stipulations
of facts, to wit:
1. On 21 September 1977, while the fishing boat `M/V MARIA EFIGENIA owned
by plaintiff was navigating in the vicinity of Fortune Island in Nasugbu, Batangas,
on its way to Navotas, Metro Manila, said fishing boat was hit by the LSCO
tanker Petroparcel causing the former to sink.
2. The Board of Marine Inquiry conducted an investigation of this marine
accident and on 21 November 1978, the Commandant of the Philippine Coast
Guard, the Honorable Simeon N. Alejandro, rendered a decision finding the
cause of the accident to be the reckless and imprudent manner in which
Edgardo Doruelo navigated the LSCO Petroparcel and declared the latter
vessel at fault.
3. On 2 April 1978, defendant Luzon Stevedoring Corporation (LUSTEVECO),
executed in favor of PNOC Shipping and Transport Corporation a Deed of
Transfer involving several tankers, tugboats, barges and pumping stations,
among which was the LSCO Petroparcel.
4. On the same date on 2 April 1979 (sic), defendant PNOC STC again entered
into an Agreement of Transfer with co-defendant Lusteveco whereby all the
business properties and other assets appertaining to the tanker and bulk oil
departments including the motor tanker LSCO Petroparcel of defendant
Lusteveco were sold to PNOC STC.
5. The aforesaid agreement stipulates, among others, that PNOC-STC
assumes, without qualifications, all obligations arising from and by virtue of all
rights it obtained over the LSCO `Petroparcel.
6. On 6 July 1979, another agreement between defendant LUSTEVECO and
PNOC-STC was executed wherein Board of Marine Inquiry Case No. 332
(involving the sea accident of 21 September 1977) was specifically identified
and assumed by the latter.
7. On 23 June 1979, the decision of Board of Marine Inquiry was affirmed by the
Ministry of National Defense, in its decision dismissing the appeal of Capt.
Edgardo Doruelo and Chief mate Anthony Estenzo of LSCO `Petroparcel.
8. LSCO `Petroparcel is presently owned and operated by PNOC-STC and
likewise Capt. Edgardo Doruelo is still in their employ.
9. As a result of the sinking of M/V Maria Efigenia caused by the reckless and
imprudent manner in which LSCO Petroparcel was navigated by defendant

Doruelo, plaintiff suffered actual damages by the loss of its fishing nets, boat
equipments (sic) and cargoes, which went down with the ship when it sank the
replacement value of which should be left to the sound discretion of this
Honorable Court.
After trial, the lower court[15] rendered on November 18, 1989 its decision disposing
of Civil Case No. C-9457 as follows:
WHEREFORE, and in view of the foregoing, judgment is hereby rendered in
favor of the plaintiff and against the defendant PNOC Shipping & Transport
Corporation, to pay the plaintiff:
a. The sum of P6,438,048.00 representing the value of the fishing boat with
interest from the date of the filing of the complaint at the rate of 6% per annum;
b. The sum of P50,000.00 as and for attorneys fees; and
c. The costs of suit.
The counterclaim is hereby DISMISSED for lack of merit. Likewise, the case
against defendant Edgardo Doruelo is hereby DISMISSED, for lack of
jurisdiction.
SO ORDERED.
In arriving at the above disposition, the lower court cited the evidence presented by
private respondent consisting of the testimony of its general manager and sole witness,
Edilberto del Rosario. Private respondents witness testified that M/V Maria Efigenia
XV was owned by private respondent per Exhibit A, a certificate of ownership issued by
the Philippine Coast Guard showing that M/V Maria Efigenia XV was a wooden motor
boat constructed in 1965 with 128.23 gross tonnage. According to him, at the time the
vessel sank, it was then carrying 1,060 tubs (baeras) of assorted fish the value of which
was never recovered. Also lost with the vessel were two cummins engines (250
horsepower), radar, pathometer and compass. He further added that with the loss of his
flagship vessel in his fishing fleet of fourteen (14) vessels, he was constrained to hire
the services of counsel whom he paid P10,000 to handle the case at the Board of
Marine Inquiry and P50,000.00 for commencing suit for damages in the lower court.
As to the award of P6,438,048.00 in actual damages, the lower court took into
account the following pieces of documentary evidence that private respondent proffered
during trial:
(a) Exhibit A certified xerox copy of the certificate of ownership of M/V Maria
Efigenia XV;

(b) Exhibit B a document titled Marine Protest executed by Delfin Villarosa,

Jr. on September 22, 1977 stating that as a result of the collision,
the M/V Maria Efigenia XVsustained a hole at its left side that caused it
to sink with its cargo of 1,050 baeras valued at P170,000.00;
(c) Exhibit C a quotation for the construction of a 95-footer trawler issued by
Isidoro A. Magalong of I. A. Magalong Engineering and Construction
on January 26, 1987 to Del Rosario showing that construction of such
trawler would cost P2,250,000.00;
(d) Exhibit D pro forma invoice No. PSPI-05/87-NAV issued by E.D. Daclan
of Power Systems, Incorporated on January 20, 1987 to Del Rosario
showing that two (2) units of CUMMINS Marine Engine model N855-M,
195 bhp. at 1800 rpm. would cost P1,160,000.00;
(e) Exhibit E quotation of prices issued by Scan Marine Inc. on January 20,
1987 to Del Rosario showing that a unit of Furuno Compact Daylight
Radar, Model FR-604D, would cost P100,000.00 while a unit of Furuno
Color Video Sounder, Model FCV-501 would cost P45,000.00 so that
the two units would cost P145,000.00;
(f) Exhibit F quotation of prices issued by Seafgear Sales, Inc. on January
21, 1987 to Del Rosario showing that two (2) rolls of nylon rope (5 cir.
X 300fl.) would costP140,000.00; two (2) rolls of nylon rope (3 cir. X
240fl.), P42,750.00; one (1) binocular (7 x 50), P1,400.00, one (1)
compass (6), P4,000.00 and 50 pcs. of floats, P9,000.00 or a total
of P197, 150.00;
(g) Exhibit G retainer agreement between Del Rosario and F. Sumulong
Associates Law Offices stipulating an acceptance fee of P5,000.00,
per appearance fee of P400.00, monthly retainer of P500.00,
contingent fee of 20% of the total amount recovered and that attorneys
fee to be awarded by the court should be given to Del Rosario; and
(h) Exhibit H price quotation issued by Seafgear Sales, Inc. dated April 10,
1987 to Del Rosario showing the cost of poly nettings as: 50 rolls of
400/18 3kts. 100md x 100mtrs.,P70,000.00; 50 rolls of 400/18 5kts.
100md x 100mtrs., P81,500.00; 50 rolls of 400/18 8kts. 100md x
100mtrs., P116,000.00, and 50 rolls of 400/18 10kts. 100md x
100mtrs., P146,500 and banera (tub) at P65.00 per piece or a total
of P414,065.00

The lower court held that the prevailing replacement value of P6,438,048.00 of the
fishing boat and all its equipment would regularly increase at 30% every year from the
date the quotations were given.
On the other hand, the lower court noted that petitioner only presented Lorenzo
Lazaro, senior estimator at PNOC Dockyard & Engineering Corporation, as sole witness
and it did not bother at all to offer any documentary evidence to support its
position. Lazaro testified that the price quotations submitted by private respondent were
excessive and that as an expert witness, he used the quotations of his suppliers in
making his estimates. However, he failed to present such quotations of prices from his
suppliers, saying that he could not produce a breakdown of the costs of his estimates as
it was a sort of secret scheme. For this reason, the lower court concluded:
Evidently, the quotation of prices submitted by the plaintiff relative to the
replacement value of the fishing boat and its equipments in the tune
of P6,438,048.00 which were lost due to the recklessness and imprudence of
the herein defendants were not rebutted by the latter with sufficient
evidence. The defendants through their sole witness Lorenzo Lazaro relied
heavily on said witness bare claim that the amount afore-said is excessive or
bloated, but they did not bother at all to present any documentary evidence to
substantiate such claim. Evidence to be believed, must not only proceed from
the mouth of the credible witness, but it must be credible in itself. (Vda. de
Bonifacio vs. B. L. T. Bus Co., Inc. L-26810, August 31, 1970).
Aggrieved, petitioner filed a motion for the reconsideration of the lower courts
decision contending that: (1) the lower court erred in holding it liable for damages; that
the lower court did not acquire jurisdiction over the case by paying only P1,252.00 as
docket fee; (2) assuming that plaintiff was entitled to damages, the lower court erred in
awarding an amount greater than that prayed for in the second amended complaint; and
(3) the lower court erred when it failed to resolve the issues it had raised in its
memorandum.[16] Petitioner likewise filed a supplemental motion for reconsideration
expounding on whether the lower court acquired jurisdiction over the subject matter of
the case despite therein plaintiffs failure to pay the prescribed docket fee. [17]
On January 25, 1990, the lower court declined reconsideration for lack of merit.
Apparently not having received the order denying its motion for reconsideration,
petitioner still filed a motion for leave to file a reply to private respondents opposition to
said motion.[19] Hence, on February 12, 1990, the lower court denied said motion for
leave to file a reply on the ground that by the issuance of the order of January 25, 1990,
said motion had become moot and academic.[20]
[18]

Unsatisfied with the lower courts decision, petitioner elevated the matter to the
Court of Appeals which, however, affirmed the same in toto on October 14, 1992.[21] On

petitioners assertion that the award of P6,438,048.00 was not convincingly proved by
competent and admissible evidence, the Court of Appeals ruled that it was not
necessary to qualify Del Rosario as an expert witness because as the owner of the lost
vessel, it was well within his knowledge and competency to identify and determine the
equipment installed and the cargoes loaded on the vessel. Considering the
documentary evidence presented as in the nature of market reports or quotations, trade
journals, trade circulars and price lists, the Court of Appeals held, thus:
Consequently, until such time as the Supreme Court categorically rules on the
admissibility or inadmissibility of this class of evidence, the reception of these
documentary exhibits (price quotations) as evidence rests on the sound
discretion of the trial court. In fact, where the lower court is confronted with
evidence which appears to be of doubtful admissibility, the judge should declare
in favor of admissibility rather than of non-admissibility (The Collector of
Palakadhari, 124 [1899], p. 43, cited in Francisco, Revised Rules of Court,
Evidence, Volume VII, Part I, 1990 Edition, p. 18). Trial courts are enjoined to
observe the strict enforcement of the rules of evidence which crystallized
through constant use and practice and are very useful and effective aids in the
search for truth and for the effective administration of justice. But in connection
with evidence which may appear to be of doubtful relevancy or incompetency or
admissibility, it is the safest policy to be liberal, not rejecting them on doubtful or
technical grounds, but admitting them unless plainly irrelevant, immaterial or
incompetent, for the reason that their rejection places them beyond the
consideration of the court. If they are thereafter found relevant or competent,
can easily be remedied by completely discarding or ignoring them. (Banaria vs.
Banaria, et al., C.A. No. 4142, May 31, 1950; cited in Francisco,
Supra). [Underscoring supplied].
Stressing that the alleged inadmissible documentary exhibits were never
satisfactorily rebutted by appellants own sole witness in the person of Lorenzo Lazaro,
the appellate court found that petitioner ironically situated itself in an inconsistent
posture by the fact that its own witness, admittedly an expert one, heavily relies on the
very same pieces of evidence (price quotations) appellant has so vigorously objected to
as inadmissible evidence. Hence, it concluded:
x x x. The amount of P6,438,048.00 was duly established at the trial on the
basis of appellees documentary exhibits (price quotations) which stood
uncontroverted, and which already included the amount by way of adjustment
as prayed for in the amended complaint. There was therefore no need for
appellee to amend the second amended complaint in so far as to the claim for
damages is concerned to conform with the evidence presented at the trial. The
amount of P6,438,048.00 awarded is clearly within the relief prayed for in
appellees second amended complaint.

On the issue of lack of jurisdiction, the respondent court held that following the
ruling in Sun Insurance Ltd. v. Asuncion,[22] the additional docket fee that may later on be
declared as still owing the court may be enforced as a lien on the judgment.
Hence, the instant recourse.
In assailing the Court of Appeals decision, petitioner posits the view that the award
of P6,438,048 as actual damages should have been in light of these considerations,
namely: (1) the trial court did not base such award on the actual value of the vessel and
its equipment at the time of loss in 1977; (2) there was no evidence on extraordinary
inflation that would warrant an adjustment of the replacement cost of the lost vessel,
equipment and cargo; (3) the value of the lost cargo and the prices quoted in
respondents documentary evidence only amount toP4,336,215.00; (4) private
respondents failure to adduce evidence to support its claim for unrealized profit and
business opportunities; and (5) private respondents failure to prove the extent and
actual value of damages sustained as a result of the 1977 collision of the vessels. [23]
Under Article 2199 of the Civil Code, actual or compensatory damages are those
awarded in satisfaction of, or in recompense for, loss or injury sustained. They proceed
from a sense of natural justice and are designed to repair the wrong that has been
done, to compensate for the injury inflicted and not to impose a penalty. [24] In actions
based on torts or quasi-delicts, actual damages include all the natural and probable
consequences of the act or omission complained of. [25] There are two kinds of actual or
compensatory damages: one is the loss of what a person already possesses (dao
emergente), and the other is the failure to receive as a benefit that which would have
pertained to him (lucro cesante).[26] Thus:
Where goods are destroyed by the wrongful act of the defendant the plaintiff is
entitled to their value at the time of destruction, that is, normally, the sum of
money which he would have to pay in the market for identical or essentially
similar goods, plus in a proper case damages for the loss of use during the
period before replacement. In other words, in the case of profit-earning chattels,
what has to be assessed is the value of the chattel to its owner as a going
concern at the time and place of the loss, and this means, at least in the case of
ships, that regard must be had to existing and pending engagements.x x x.
x x x. If the market value of the ship reflects the fact that it is in any case virtually
certain of profitable employment, then nothing can be added to that value in
respect of charters actually lost, for to do so would be pro tanto to compensate
the plaintiff twice over. On the other hand, if the ship is valued without reference
to its actual future engagements and only in the light of its profit-earning
potentiality, then it may be necessary to add to the value thus assessed the
anticipated profit on a charter or other engagement which it was unable to

fulfill. What the court has to ascertain in each case is the `capitalised value of
the vessel as a profit-earning machine not in the abstract but in view of the
actual circumstances, without, of course, taking into account considerations
which were too remote at the time of the loss.[27] [Underscoring supplied].
As stated at the outset, to enable an injured party to recover actual or compensatory
damages, he is required to prove the actual amount of loss with reasonable degree of
certainty premised upon competent proof and on the best evidence available. [28] The
burden of proof is on the party who would be defeated if no evidence would be
presented on either side. He must establish his case by a preponderance of evidence
which means that the evidence, as a whole, adduced by one side is superior to that of
the other.[29] In other words, damages cannot be presumed and courts, in making an
award must point out specific facts that could afford a basis for measuring whatever
compensatory or actual damages are borne. [30]
In this case, actual damages were proven through the sole testimony of private
respondents general manager and certain pieces of documentary evidence. Except for
Exhibit B where the value of the 1,050 baeras of fish were pegged at their September
1977 value when the collision happened, the pieces of documentary evidence proffered
by private respondent with respect to items and equipment lost show similar items and
equipment with corresponding prices in early 1987 or approximately ten (10) years after
the collision. Noticeably, petitioner did not object to the exhibits in terms of the time
index for valuation of the lost goods and equipment. In objecting to the same pieces of
evidence, petitioner commented that these were not duly authenticated and that the
witness (Del Rosario) did not have personal knowledge on the contents of the writings
and neither was he an expert on the subjects thereof. [31] Clearly ignoring petitioners
objections to the exhibits, the lower court admitted these pieces of evidence and gave
them due weight to arrive at the award of P6,438,048.00 as actual damages.
The exhibits were presented ostensibly in the course of Del Rosarios
testimony. Private respondent did not present any other witnesses especially those
whose signatures appear in the price quotations that became the bases of the award.
We hold, however, that the price quotations are ordinary private writings which under
the Revised Rules of Court should have been proffered along with the testimony of the
authors thereof. Del Rosario could not have testified on the veracity of the contents of
the writings even though he was the seasoned owner of a fishing fleet because he was
not the one who issued the price quotations. Section 36, Rule 130 of the Revised Rules
of Court provides that a witness can testify only to those facts that he knows of his
personal knowledge.
For this reason, Del Rosarios claim that private respondent incurred losses in the
total amount of P6,438,048.00 should be admitted with extreme caution considering
that, because it was a bare assertion, it should be supported by independent

evidence. Moreover, because he was the owner of private respondent

corporation[32] whatever testimony he would give with regard to the value of the lost
vessel, its equipment and cargoes should be viewed in the light of his self-interest
therein. We agree with the Court of Appeals that his testimony as to the equipment
installed and the cargoes loaded on the vessel should be given credence [33] considering
his familiarity thereto. However, we do not subscribe to the conclusion that
his valuationof such equipment, cargo and the vessel itself should be accepted as
gospel truth.[34] We must, therefore, examine the documentary evidence presented to
support Del Rosarios claim as regards the amount of losses.
The price quotations presented as exhibits partake of the nature of hearsay
evidence considering that the persons who issued them were not presented as
witnesses.[35] Any evidence, whether oral or documentary, is hearsay if its probative
value is not based on the personal knowledge of the witness but on the knowledge of
another person who is not on the witness stand. Hearsay evidence, whether objected to
or not, has no probative value unless the proponent can show that the evidence falls
within the exceptions to the hearsay evidence rule. [36] On this point, we believe that the
exhibits do not fall under any of the exceptions provided under Sections 37 to 47 of Rule
130.[37]
It is true that one of the exceptions to the hearsay rule pertains to commercial lists
and the like under Section 45, Rule 130 of the Revised Rules on Evidence. In this
respect, the Court of Appeals considered private respondents exhibits as commercial
lists. It added, however, that these exhibits should be admitted in evidence until such
time as the Supreme Court categorically rules on the admissibility or inadmissibility of
this class of evidence because the reception of these documentary exhibits (price
quotations) as evidence rests on the sound discretion of the trial court. [38] Reference to
Section 45, Rule 130, however, would show that the conclusion of the Court of Appeals
on the matter was arbitrarily arrived at. This rule states:
Commercial lists and the like. Evidence of statements of matters of interest to
persons engaged in an occupation contained in a list, register, periodical, or
other published compilation is admissible as tending to prove the truth of any
relevant matter so stated if that compilation is published for use by persons
engaged in that occupation and is generally used and relied upon by them
there.
Under Section 45 of the aforesaid Rule, a document is a commercial list if: (1) it is
a statement of matters of interest to persons engaged in an occupation; (2) such
statement is contained in a list, register, periodical or other published compilation; (3)
said compilation is published for the use of persons engaged in that occupation, and
(4) it is generally used and relied upon by persons in the same occupation.

Based on the above requisites, it is our considered view that Exhibits B, C, D, E, F

and H[39] are not commercial lists for these do not belong to the category of other
published compilations under Section 45 aforequoted. Under the principle of ejusdem
generis, (w)here general words follow an enumeration of persons or things, by words of
a particular and specific meaning, such general words are not to be construed in their
widest extent, but are to be held as applying only to persons or things of the same kind
or class as those specifically mentioned. [40] The exhibits mentioned are mere price
quotations issued personally to Del Rosario who requested for them from dealers of
equipment similar to the ones lost at the collision of the two vessels. These are not
published in any list, register, periodical or other compilation on the relevant subject
matter. Neither are these market reports or quotations within the purview of commercial
lists as these are not standard handbooks or periodicals, containing data of everyday
professional need and relied upon in the work of the occupation. [41] These are simply
letters responding to the queries of Del Rosario. Thus, take for example Exhibit D which
reads:
January 20, 1987
PROFORMA INVOICE NO. PSPI-05/87-NAV
MARIA EFIGINIA FISHING CORPORATION
Navotas, Metro Manila
Attention: MR. EDDIE DEL ROSARIO
Gentlemen:
In accordance to your request, we are pleased to quote our Cummins Marine
Engine, to wit.
Two (2) units CUMMINS Marine Engine model N855-M, 195 bhp.
at 1800 rpm., 6-cylinder in-line, 4-stroke cycle, natural
aspirated, 5 in. x 6 in. bore and stroke, 855 cu. In.
displacement, keel-cooled, electric starting coupled with TwinDisc Marine gearbox model MG-509, 4.5:1 reduction ratio,
includes oil cooler, companion flange, manual and standard
accessories as per attached sheet.
Price FOB Manila - - - - - - - - - - - - - - - P 580,000.00/unit
Total FOB Manila - - - - - - - - - - - - - - - P 1,160,000.00

vvvvvvvvv
T E R M S : CASH
DELIVERY : 60-90 days from date of order.
VALIDITY : Subject to our final confirmation.
WARRANTY : One (1) full year against factory defect.
Very truly yours,
POWER SYSTEMS, INC.
(Sgd.)
E. D. Daclan
To be sure, letters and telegrams are admissible in evidence but these are,
however, subject to the general principles of evidence and to various rules relating to
documentary evidence.[42] Hence, in one case, it was held that a letter from an
automobile dealer offering an allowance for an automobile upon purchase of a new
automobile after repairs had been completed, was not a price current or commercial list
within the statute which made such items presumptive evidence of the value of the
article specified therein. The letter was not admissible in evidence as a commercial list
even though the clerk of the dealer testified that he had written the letter in due course
of business upon instructions of the dealer.[43]
But even on the theory that the Court of Appeals correctly ruled on
the admissibility of those letters or communications when it held that unless plainly
irrelevant, immaterial or incompetent, evidence should better be admitted rather than
rejected on doubtful or technical grounds, [44] the same pieces of evidence, however,
should not have been given probative weight. This is a distinction we wish to point
out. Admissibility of evidence refers to the question of whether or not the circumstance
(or evidence) is to considered at all. [45] On the other hand, the probative value of
evidence refers to the question of whether or not it proves an issue. [46] Thus, a letter
may be offered in evidence and admitted as such but its evidentiary weight depends
upon the observance of the rules on evidence. Accordingly, the author of the letter
should be presented as witness to provide the other party to the litigation the
opportunity to question him on the contents of the letter. Being mere hearsay evidence,
failure to present the author of the letter renders its contents suspect. As earlier stated,
hearsay evidence, whether objected to or not, has no probative value. Thus:

The courts differ as to the weight to be given to hearsay evidence admitted

without objection. Some hold that when hearsay has been admitted without
objection, the same may be considered as any other properly admitted
testimony. Others maintain that it is entitled to no more consideration than if it
had been excluded.
The rule prevailing in this jurisdiction is the latter one. Our Supreme Court held
that although the question of admissibility of evidence can not be raised for the
first time on appeal, yet if the evidence is hearsay it has no probative value and
should be disregarded whether objected to or not. `If no objection is made
quoting Jones on Evidence - `it (hearsay) becomes evidence by reason of the
want of such objection even though its admission does not confer upon it any
new attribute in point of weight. Its nature and quality remain the same, so far as
its intrinsic weakness and incompetency to satisfy the mind are concerned, and
as opposed to direct primary evidence, the latter always prevails.
The failure of the defense counsel to object to the presentation of incompetent
evidence, like hearsay evidence or evidence that violates the rules of res inter
alios acta, or his failure to ask for the striking out of the same does not give such
evidence any probative value. But admissibility of evidence should not be
equated with weight of evidence. Hearsay evidence whether objected to or not
has no probative value.[47]
Accordingly, as stated at the outset, damages may not be awarded on the basis of
hearsay evidence.[48]
Nonetheless, the non-admissibility of said exhibits does not mean that it totally
deprives private respondent of any redress for the loss of its vessel. This is because
in Lufthansa German Airlines v. Court of Appeals,[49] the Court said:
In the absence of competent proof on the actual damage suffered, private
respondent is `entitled to nominal damages which, as the law says, is
adjudicated in order that a right of the plaintiff, which has been violated or
invaded by defendant, may be vindicated and recognized, and not for the
purpose of indemnifying the plaintiff for any loss suffered. [Underscoring
supplied].
Nominal damages are awarded in every obligation arising from law, contracts,
quasi-contracts, acts or omissions punished by law, and quasi-delicts, or in every case
where property right has been invaded. [50] Under Article 2223 of the Civil Code, (t)he
adjudication of nominal damages shall preclude further contest upon the right involved
and all accessory questions, as between the parties to the suit, or their respective heirs
and assigns.

Actually, nominal damages are damages in name only and not in fact. Where these
are allowed, they are not treated as an equivalent of a wrong inflicted but simply in
recognition of the existence of a technical injury.[51] However, the amount to be awarded
as nominal damages shall be equal or at least commensurate to the injury sustained by
private respondent considering the concept and purpose of such damages. [52] The
amount of nominal damages to be awarded may also depend on certain special
reasons extant in the case.[53]
Applying now such principles to the instant case, we have on record the fact that
petitioners vessel Petroparcel was at fault as well as private respondents complaint
claiming the amount of P692,680.00 representing the fishing nets, boat equipment and
cargoes that sunk with the M/V Maria Efigenia XV. In its amended complaint, private
respondent alleged that the vessel had an actual value of P800,000.00 but it had been
paid insurance in the amount of P200,000.00 and, therefore, it claimed only the amount
of P600,000.00. Ordinarily, the receipt of insurance payments should diminish the total
value of the vessel quoted by private respondent in his complaint considering that such
payment is causally related to the loss for which it claimed compensation. This Court
believes that such allegations in the original and amended complaints can be the basis
for determination of a fair amount of nominal damages inasmuch as a complaint alleges
the ultimate facts constituting the plaintiff's cause of action. [54] Private respondent should
be bound by its allegations on the amount of its claims.
With respect to petitioners contention that the lower court did not acquire jurisdiction
over the amended complaint increasing the amount of damages claimed
to P600,000.00, we agree with the Court of Appeals that the lower court acquired
jurisdiction over the case when private respondent paid the docket fee corresponding to
its claim in its original complaint. Its failure to pay the docket fee corresponding to its
increased claim for damages under the amended complaint should not be considered
as having curtailed the lower courts jurisdiction. Pursuant to the ruling in Sun
Insurance Office, Ltd. (SIOL) v. Asuncion,[55] the unpaid docket fee should be
considered as a lien on the judgment even though private respondent specified the
amount of P600,000.00 as its claim for damages in its amended complaint.
Moreover, we note that petitioner did not question at all the jurisdiction of the lower
court on the ground of insufficient docket fees in its answers to both the amended
complaint and the second amended complaint. It did so only in its motion for
reconsideration of the decision of the lower court after it had received an adverse
decision. As this Court held in Pantranco North Express, Inc. v. Court of Appeals,
[56]
participation in all stages of the case before the trial court, that included invoking its
authority in asking for affirmative relief, effectively barred petitioner by estoppel from
challenging the courts jurisdiction. Notably, from the time it filed its answer to the second
amended complaint on April 16, 1985, [57] petitioner did not question the lower courts
jurisdiction. It was only on December 29, 1989[58] when it filed its motion for

reconsideration of the lower courts decision that petitioner raised the question of the
lower courts lack of jurisdiction. Petitioner thus foreclosed its right to raise the issue of
jurisdiction by its own inaction.
WHEREFORE, the challenged decision of the Court of Appeals dated October 14,
1992 in CA-G. R. CV No. 26680 affirming that of the Regional Trial Court of Caloocan
City, Branch 121, is hereby MODIFIED insofar as it awarded actual damages to private
respondent Maria Efigenia Fishing Corporation in the amount of P6,438,048.00 for lack
of evidentiary bases therefor. Considering the fact, however, that: (1) technically
petitioner sustained injury but which, unfortunately, was not adequately and properly
proved, and (2) this case has dragged on for almost two decades, we believe that an
award of Two Million (P2,000,000.00)[59] in favor of private respondent as and for
nominal damages is in order.
No pronouncement as to costs.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. No. L-22793

May 16, 1967

CARMELITA
TAN
and
RODOLFO
TAN, petitioners,
vs.
COURT OF APPEALS and FRANCISCO TAN (alias Tan Uh Bak and Tan Seng
Ka), respondents.
Amando
Asis
Taada, Teehankee and Carreon for respondents.

for

petitioners.

SANCHEZ, J.:
The present is a suit aimed at establishing a children-to-father, illegitimate relationship
between petitioners and the principal respondent Francisco Tan, and to compel the
latter to support petitioners.
The background facts follow:

On July 22, 1955, petitioners, thru their mother Celestina Daldo as guardian ad litem,
sued respondent Tan in the Court of First Instance of Manila for acknowledgment and
support (Civil Case 26909). 1wph1.t
On March 26, 1956, Celestina Daldo after petitioners had already presented oral and
documentary evidence and were about to rest their case moved to dismiss the
foregoing civil case upon the ground that the parties had come to an amicable
settlement, and prayed that the same be dismissed with prejudice and without recourse
of appeal.
On the same day, March 26, 1956, Celestina Daldo subscribed before the clerk of the
Court of First Instance of Manila to an affidavit categorically stating that respondent
Francisco Tan, defendant in Civil Case 26909, "is not the father of my said minor
children named Carmelita and Rodolfo (herein petitioners) but another person whose
name I cannot divulge"; and that she prepared said affidavit precisely "to record what is
true and to correct what misinterpretation may arise in the future".
On March 26, 1956, the Court of First Instance of Manila issued the following order:
As prayed for by plaintiffs in their motion filed today for the dismissal of their
complaint, on the ground that the parties have already come to an amicable
settlement, with the conformity of counsel for defendant, the Court hereby orders
this case dismissed with prejudice and without pronouncement as to costs.
On November 25, 1957 one year and eight months after Civil Case 26909 was
dismissed petitioners, this time thru their maternal grandfather Servillano Daldo as
guardian ad litem, commenced the present action before the Juvenile & Domestic
Relations Court (Civil Case 00855) for acknowledgment and support, involving the
same parties, cause of action and subject matter.
On September 10, 1960, then Judge Juan P. Enriquez (Judge of the Court of First
Instance of Manila detailed to preside over the Juvenile & Domestic Relations Court in
the absence of the presiding Judge thereof who was on leave rendered judgment
declaring that "the present case is res judicata by reason of the dismissal with prejudice
of Civil Case 26909 of the Court of First Instance of Manila; and that, even on the
merits, plaintiffs [the present petitioners] have not made out their case with sufficient
evidence," and dismissed the complaint, without costs.
On October 8, 1960, petitioners herein, plaintiffs below, moved to reconsider.
On January 31, 1961, then Judge Natividad Almeda Lopez reconsidered the decision of
Judge Enriquez of September 10, 1960, and rendered judgment, viz:

In view of the foregoing considerations, this Court reconsider its decision of

September 10, 1960, and declares the minors Carmelita and Rodolfo Tan to be
the illegitimate children of the defendant Francisco Tan alias Tan Uh Bak and
Tang Seng Ka; and hereby orders the defendant to support said minors in the
amount of P200.00 a month, said amount to be paid within the first five (5) days
of each month directly to Carmelita Tan, for herself and for her younger brother
Rodolfo; and to help them defray their matriculation expenses, to pay semiannually, on June and November of such year, an additional sum of P300; to
reimburse Servillano Daldo his expenses in supporting plaintiff minors during the
pendency of this case in the amount of P2,000, or at the rate of P50 a month
from November 25, 1957; to pay plaintiff minors' attorney's fees of P500; and to
pay the costs of this proceedings.
Respondent Francisco Tan appealed to the Court of Appeals.
On February 21, 1964, the Court of Appeals in turn reversed the last-named judgment
of Judge Natividad Almeda Lopez, and dismissed the complaint with costs against
appellees in both instances.
Petitioners now come to this Court in forma pauperis on appeal by way of certiorari.
1. Threshold question is the admissibility of Exhibits H and I, testimony of petitioners'
witnesses in the former case. Petitioners balk at the ruling denying admissibility.
The controlling statute is Section 37, Rule 123 of the 1940 Rules of Court, now Section
41, Rule 130, viz:
SEC. 41. Testimony at a former trial. The testimony of a witness deceased or
out of the Philippines, or unable to testify, given in a former case between the
same parties, relating to the same matter, the adverse party having had an
opportunity to cross-examine him, may be given in evidence.
Concededly, the witnesses at the former trial were subpoenaed by the Juvenile &
Domestic Relations Court a number of times. These witnesses did not appear to testify.
But are their testimonies in the former trial within the coverage of the rule of admissibility
set forth in Section 41, Rule 130? These witnesses are not dead. They are not outside
of the Philippines. Can they be categorized as witnesses of the class unable to testify?
The Court of Appeals, construing this term, held that "subsequent failure or refusal to
appear thereat [second trial] or hostility since testifying at the first trial does not amount
to inability to testify, but such inability proceeding from a grave cause, almost amounting
to death, as when the witness is old and has lost the power of speech. (Griffith vs.
Sauls, 77 Tex 630, 14 S.W. 230, 231; section 37 of Rule 123, Rules of Court)."

Here, the witnesses in question were available. Only, they refused to testify. No other
person that prevented them from testifying, is cited. Certainly, they do not come within
the legal purview of those unable to testify.
Besides in the situation here presented, petitioners are not at all bereft of remedy. They
could have urged the court to have said witnesses arrested, punished for
contempt.1 After all, these remedies are in the statute books to help litigants in the
prosecution of their cases. Petitioners failed to avail of these remedies, went ahead and
submitted their case.
We note petitioners' argument that to follow strictly the law of admissibility of testimony
in former trials, is to permit party litigants to buy witnesses to dissuade them from
testifying again. Nothing extant in the record will as much as intimate that respondent
was responsible for the non-appearance of these witnesses. The danger of tampering
with witnesses is a problem that attends trials in many a time and in number of
imaginable situations. And, petitioners argument works both ways. Because, witnesses
at the former trial can be bought not to testify at the second trial, in just the same way
that they could have been bought to give their original testimony. Solution of this
problem lies elsewhere, not in the non-enforcement of Section 41, Rule 130 of the
Rules of Court.
2. The procedural problem out of the way, we go direct to the merits.
Petitioners tried to prove that Celestina Daldo and respondent Francisco Tan lived
together as husband and wife for more than eight years commencing from 1936 to
1944. Petitioners Carmelita Tan and Rodolfo Tan are allegedly the fruits of such
cohabitation. Respondent stoutly denies this claim, avers that he is very much a married
man with children. Celestina Daldo, by her own admission, had been a nursemaid
(yaya) in respondent's residence but for l short period of not less than one year in 1939.
Carmelita was born on May 8, 1942 and Rodolfo, on September 11, 1944. The validity
of the testimony of petitioners' witnesses in the present case was considerably
downgraded by the affidavit of Celestina Daldo, heretofore adverted to, attached to the
record of the former Case 26909. In that affidavit, Celestina deposed that petitioners
were not fathered by Francisco Tan, but, in Celestina's own words, by "another person
whose name I cannot divulge." Striking is the fact that this affidavit was executed after
petitioners in the former case had finished with their oral and documentary evidence
and were about to submit their case. By then, their counsel had a grasp of the situation.
Petitioners and their guardian ad litem could have known whether they had reasonably
made out a case against respondent.
Correctly then did the Court of Appeals rule out the probative value of petitioners'
evidence and found for respondent. On this point the Court of Appeals said:

... we now come to the resolution of the second point; i.e., whether or not the
plaintiffs have sufficiently proved their case. We have gone over and examined
thoroughly the arguments and evidence of the parties, and we find that the
evidence for the plaintiffs-appellees fall short of the requirement of clear strong
and convincing evidence. Such evidence is necessary whether to prove
legitimate or illigitimate paternity and filiation, considering the seriousness of the
relationship and its far-reaching consequences. As aptly expressed in the case
of Serrano v. Aragon, (22 Phil. 10),
"Public policy, indeed public necessity, demands that before an illegitimate child
be admitted into a legitimate family, every requisite of the law be completely and
fully complied with. No one should ever be permitted upon doubtful evidence to
take from legitimate children the property which they and their parents have, by
industry, fidelity, and frugality, acquired. ..."
We agree with the findings of the trial court in its original correctly appreciating
the evidence of the plaintiffs as unsatisfactory and insufficient, in view of the
following considerations;
(1) That Exhibits H and I, former testimonies of witnesses in Civil Case No.
26909, are inadmissible. ...
(2) That the baptismal certificates, Exhs. A and C are not admissible proofs of
filiation (Malonda vs. Malonda, 45 O.G. 5468; Pareja vs. Pareja, G.R. L-3824,
prom. May 31, 1954; Capistrano vs. Gabino, 8 Phil. 135; Adriano vs. De Jesus,
23 Phil. 350; Madridejo vs. Leon, 55 Phil. 1) The birth certificate Exhibit B is
likewise inadmissible against the defendant because it failed to comply with
Section 5 of Act 3753. The alleged illegitimate father did not sign under oath the
said birth certificate (Roces vs. Local Civil Registrar of Manila, G.R. L-10598,
prom. February 14, 1958; Crisolo vs. Macadaeg, G.R. L-7017 prom. April 29,
1954).
It should be noted that said baptismal certificates are also useless to prove the
dates of birth of the appellees-minors, considering that the period of cohabitation
or any intimate relations at all between their mother and the appellant has been
denied and that same has not been satisfactorily proved. Stated in another way,
the date of birth as appearing in the birth certificate would be material only if it
coincides with the period of cohabitation as admitted or sufficiently proved. To
reason otherwise would be to put the cart before the horse, so to speak.
(3) The oral evidence for the plaintiffs, consisting principally of the testimonies of
the grandfather and of the mother of the minors, are unsatisfactory, being
inconsistent and contradictory on material points, and unbelievable. The loose

character of the mother of the minors who admittedly had lived and begotten
children with several men of different nationalities, cannot also be overlooked.
Weighed against each other, the evidence for the plaintiffs do not tip the scales in
their favor as against the defendant-appellant. We are not convinced, by
preponderance of evidence, that appellant is the father of the minor appellees. ...
Section 2, Rule 45 of the Rules of Court, formerly Section 2, Rule 46 of the 1940 Rules,
employs the commanding language that "[o]nly questions of law may be raised" in an
appeal by certiorari from a judgment of the Court of Appeals. That judgment,
jurisprudence teaches, is conclusive as to the facts. We are not to alter said facts
they bind us, or to review the questions of fact.2
Having reached the conclusion that, on the merits, petitioners made no case, it is
unnecessary for us to pass upon the other questions raised on appeal.
For the reasons given, we vote to affirm the judgment of the Court of Appeals under
review. No costs in all instances. So ordered.
Republic
SUPREME
Manila

of

the

Philippines
COURT

THIRD DIVISION
G.R. No. 150157

January 25, 2007

MAURICIO MANLICLIC and PHILIPPINE RABBIT BUS LINES, INC., Petitioners,

vs.
MODESTO CALAUNAN, Respondent.
DECISION
CHICO-NAZARIO, J.:
Assailed before Us is the decision 1 of the Court of Appeals in CA-G.R. CV No. 55909
which affirmed in toto the decision 2 of the Regional Trial Court (RTC) of Dagupan City,
Branch 42, in Civil Case No. D-10086, finding petitioners Mauricio Manliclic and
Philippine Rabbit Bus Lines, Inc. (PRBLI) solidarily liable to pay damages and attorneys
fees to respondent Modesto Calaunan.
The factual antecedents are as follows:
The vehicles involved in this case are: (1) Philippine Rabbit Bus No. 353 with plate
number CVD-478, owned by petitioner PRBLI and driven by petitioner Mauricio

Manliclic; and (2) owner-type jeep with plate number PER-290, owned by respondent
Modesto Calaunan and driven by Marcelo Mendoza.
At around 6:00 to 7:00 oclock in the morning of 12 July 1988, respondent Calaunan,
together with Marcelo Mendoza, was on his way to Manila from Pangasinan on board
his owner-type jeep. The Philippine Rabbit Bus was likewise bound for Manila from
Concepcion, Tarlac. At approximately Kilometer 40 of the North Luzon Expressway in
Barangay Lalangan, Plaridel, Bulacan, the two vehicles collided. The front right side of
the Philippine Rabbit Bus hit the rear left side of the jeep causing the latter to move to
the shoulder on the right and then fall on a ditch with water resulting to further extensive
damage. The bus veered to the left and stopped 7 to 8 meters from point of collision.
Respondent suffered minor injuries while his driver was unhurt. He was first brought for
treatment to the Manila Central University Hospital in Kalookan City by Oscar Buan, the
conductor of the Philippine Rabbit Bus, and was later transferred to the Veterans
Memorial Medical Center.
By reason of such collision, a criminal case was filed before the RTC of Malolos,
Bulacan, charging petitioner Manliclic with Reckless Imprudence Resulting in Damage
to Property with Physical Injuries, docketed as Crim. Case No. 684-M-89. Subsequently
on 2 December 1991, respondent filed a complaint for damages against petitioners
Manliclic and PRBLI before the RTC of Dagupan City, docketed as Civil Case No. D10086. The criminal case was tried ahead of the civil case. Among those who testified in
the criminal case were respondent Calaunan, Marcelo Mendoza and Fernando Ramos.
In the civil case (now before this Court), the parties admitted the following:
1. The parties agreed on the capacity of the parties to sue and be sued as well
as the venue and the identities of the vehicles involved;
2. The identity of the drivers and the fact that they are duly licensed;
3. The date and place of the vehicular collision;
4. The extent of the injuries suffered by plaintiff Modesto Calaunan and the
existence of the medical certificate;
5. That both vehicles were going towards the south; the private jeep being ahead
of the bus;
6. That the weather was fair and the road was well paved and straight, although
there was a ditch on the right side where the jeep fell into. 3

When the civil case was heard, counsel for respondent prayed that the transcripts of
stenographic notes (TSNs)4of the testimonies of respondent Calaunan, Marcelo
Mendoza and Fernando Ramos in the criminal case be received in evidence in the civil
case in as much as these witnesses are not available to testify in the civil case.
Francisco Tuliao testified that his brother-in-law, respondent Calaunan, left for abroad
sometime in November, 1989 and has not returned since then. Rogelio Ramos took the
stand and said that his brother, Fernando Ramos, left for Amman, Jordan, to work.
Rosalia Mendoza testified that her husband, Marcelo Mendoza, left their residence to
look for a job. She narrated that she thought her husband went to his hometown in
Panique, Tarlac, when he did not return after one month. She went to her husbands
hometown to look for him but she was informed that he did not go there.1awphil.net
The trial court subpoenaed the Clerk of Court of Branch 8, RTC, Malolos, Bulacan, the
court where Criminal Case No. 684-M-89 was tried, to bring the TSNs of the testimonies
of respondent Calaunan,5 Marcelo Mendoza6 and Fernando Ramos7 in said case,
together with other documentary evidence marked therein. Instead of the Branch Clerk
of Court, it was Enrique Santos Guevara, Court Interpreter, who appeared before the
court and identified the TSNs of the three afore-named witnesses and other pertinent
documents he had brought.8 Counsel for respondent wanted to mark other TSNs and
documents from the said criminal case to be adopted in the instant case, but since the
same were not brought to the trial court, counsel for petitioners compromised that said
TSNs and documents could be offered by counsel for respondent as rebuttal evidence.
For the defendants, petitioner Manliclic and bus conductor Oscar Buan testified. The
TSN9 of the testimony of Donato Ganiban, investigator of the PRBLI, in Criminal Case
No. 684-M-89 was marked and allowed to be adopted in the civil case on the ground
that he was already dead.
Respondent further marked, among other documents, as rebuttal evidence, the
TSNs10 of the testimonies of Donato Ganiban, Oscar Buan and petitioner Manliclic in
Criminal Case No. 684-M-89.
The disagreement arises from the question: Who is to be held liable for the collision?
Respondent insists it was petitioner Manliclic who should be liable while the latter is
resolute in saying it was the former who caused the smash up.
The versions of the parties are summarized by the trial court as follows:
The parties differed only on the manner the collision between the two (2) vehicles took
place. According to the plaintiff and his driver, the jeep was cruising at the speed of 60
to 70 kilometers per hour on the slow lane of the expressway when the Philippine
Rabbit Bus overtook the jeep and in the process of overtaking the jeep, the Philippine

Rabbit Bus hit the rear of the jeep on the left side. At the time the Philippine Rabbit Bus
hit the jeep, it was about to overtake the jeep. In other words, the Philippine Rabbit Bus
was still at the back of the jeep when the jeep was hit. Fernando Ramos corroborated
the testimony of the plaintiff and Marcelo Mendoza. He said that he was on another jeep
following the Philippine Rabbit Bus and the jeep of plaintiff when the incident took place.
He said, the jeep of the plaintiff overtook them and the said jeep of the plaintiff was
followed by the Philippine Rabbit Bus which was running very fast. The bus also
overtook the jeep in which he was riding. After that, he heard a loud sound. He saw the
jeep of the plaintiff swerved to the right on a grassy portion of the road. The Philippine
Rabbit Bus stopped and they overtook the Philippine Rabbit Bus so that it could not
moved (sic), meaning they stopped in front of the Philippine Rabbit Bus. He testified that
the jeep of plaintiff swerved to the right because it was bumped by the Philippine Rabbit
bus from behind.
Both Mauricio Manliclic and his driver, Oscar Buan admitted that the Philippine Rabbit
Bus bumped the jeep in question. However, they explained that when the Philippine
Rabbit bus was about to go to the left lane to overtake the jeep, the latter jeep swerved
to the left because it was to overtake another jeep in front of it. Such was their testimony
before the RTC in Malolos in the criminal case and before this Court in the instant case.
[Thus, which of the two versions of the manner how the collision took place was correct,
would be determinative of who between the two drivers was negligent in the operation
of their respective vehicles.]11
Petitioner PRBLI maintained that it observed and exercised the diligence of a good
father of a family in the selection and supervision of its employee, specifically petitioner
Manliclic.
On 22 July 1996, the trial court rendered its decision in favor of respondent Calaunan
and against petitioners Manliclic and PRBLI. The dispositive portion of its decision
reads:
WHEREFORE, judgment is rendered in favor of the plaintiff and against the defendants
ordering the said defendants to pay plaintiff jointly and solidarily the amount
of P40,838.00 as actual damages for the towing as well as the repair and the materials
used for the repair of the jeep in question; P100,000.00 as moral damages and
another P100,000.00 as exemplary damages and P15,000.00 as attorneys fees,
including appearance fees of the lawyer. In addition, the defendants are also to pay
costs.12
Petitioners appealed the decision via Notice of Appeal to the Court of Appeals. 13
In a decision dated 28 September 2001, the Court of Appeals, finding no reversible error
in the decision of the trial court, affirmed it in all respects. 14

Petitioners are now before us by way of petition for review assailing the decision of the
Court of Appeals. They assign as errors the following:
I
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE
TRIAL COURTS QUESTIONABLE ADMISSION IN EVIDENCE OF THE TSNs AND
OTHER DOCUMENTS PRESENTED IN THE CRIMINAL CASE.
II
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE
TRIAL COURTS RELIANCE ON THE VERSION OF THE RESPONDENT ON HOW
THE ACCIDENT SUPPOSEDLY OCCURRED.
III
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE
TRIAL COURTS UNFAIR DISREGARD OF HEREIN PETITIONER PRBLs DEFENSE
OF EXERCISE OF DUE DILIGENCE IN THE SELECTION AND SUPERVISION OF ITS
EMPLOYEES.
IV
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE
TRIAL COURTS QUESTIONABLE AWARD OF DAMAGES AND ATTORNEYS FEE.
With the passing away of respondent Calaunan during the pendency of this appeal with
this Court, we granted the Motion for the Substitution of Respondent filed by his wife,
Mrs. Precila Zarate Vda. De Calaunan, and children, Virgilio Calaunan, Carmelita
Honeycomb, Evelyn Calaunan, Marko Calaunan and Liwayway Calaunan. 15
In their Reply to respondents Comment, petitioners informed this Court of a
Decision16 of the Court of Appeals acquitting petitioner Manliclic of the charge 17 of
Reckless Imprudence Resulting in Damage to Property with Physical Injuries attaching
thereto a photocopy thereof.
On the first assigned error, petitioners argue that the TSNs containing the testimonies of
respondent Calaunan,18Marcelo Mendoza19 and Fernando Ramos20 should not be
admitted in evidence for failure of respondent to comply with the requisites of Section
47, Rule 130 of the Rules of Court.
For Section 47, Rule 13021 to apply, the following requisites must be satisfied: (a) the
witness is dead or unable to testify; (b) his testimony or deposition was given in a former

case or proceeding, judicial or administrative, between the same parties or those

representing the same interests; (c) the former case involved the same subject as that
in the present case, although on different causes of action; (d) the issue testified to by
the witness in the former trial is the same issue involved in the present case; and (e) the
adverse party had an opportunity to cross-examine the witness in the former case. 22
Admittedly, respondent failed to show the concurrence of all the requisites set forth by
the Rules for a testimony given in a former case or proceeding to be admissible as an
exception to the hearsay rule. Petitioner PRBLI, not being a party in Criminal Case No.
684-M-89, had no opportunity to cross-examine the three witnesses in said case. The
criminal case was filed exclusively against petitioner Manliclic, petitioner PRBLIs
employee. The cases dealing with the subsidiary liability of employers uniformly declare
that, strictly speaking, they are not parties to the criminal cases instituted against their
employees.23
Notwithstanding the fact that petitioner PRBLI was not a party in said criminal case, the
testimonies of the three witnesses are still admissible on the ground that petitioner
PRBLI failed to object on their admissibility.
It is elementary that an objection shall be made at the time when an alleged
inadmissible document is offered in evidence; otherwise, the objection shall be treated
as waived, since the right to object is merely a privilege which the party may waive.
Thus, a failure to except to the evidence because it does not conform to the statute is a
waiver of the provisions of the law. Even assuming ex gratia argumenti that these
documents are inadmissible for being hearsay, but on account of failure to object
thereto, the same may be admitted and considered as sufficient to prove the facts
therein asserted.24 Hearsay evidence alone may be insufficient to establish a fact in a
suit but, when no objection is made thereto, it is, like any other evidence, to be
considered and given the importance it deserves. 25
In the case at bar, petitioner PRBLI did not object to the TSNs containing the
testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos in the
criminal case when the same were offered in evidence in the trial court. In fact, the
TSNs of the testimonies of Calaunan and Mendoza were admitted by both
petitioners.26Moreover, petitioner PRBLI even offered in evidence the TSN containing
the testimony of Donato Ganiban in the criminal case. If petitioner PRBLI argues that
the TSNs of the testimonies of plaintiffs witnesses in the criminal case should not be
admitted in the instant case, why then did it offer the TSN of the testimony of Ganiban
which was given in the criminal case? It appears that petitioner PRBLI wants to have its
cake and eat it too. It cannot argue that the TSNs of the testimonies of the witnesses of
the adverse party in the criminal case should not be admitted and at the same time
insist that the TSN of the testimony of the witness for the accused be admitted in its
favor. To disallow admission in evidence of the TSNs of the testimonies of Calaunan,

Marcelo Mendoza and Fernando Ramos in the criminal case and to admit the TSN of
the testimony of Ganiban would be unfair.
We do not subscribe to petitioner PRBLIs argument that it will be denied due process
when the TSNs of the testimonies of Calaunan, Marcelo Mendoza and Fernando
Ramos in the criminal case are to be admitted in the civil case. It is too late for petitioner
PRBLI to raise denial of due process in relation to Section 47, Rule 130 of the Rules of
Court, as a ground for objecting to the admissibility of the TSNs. For failure to object at
the proper time, it waived its right to object that the TSNs did not comply with Section
47.
In Mangio v. Court of Appeals,27 this Court, through Associate Justice Reynato S.
Puno,28 admitted in evidence a TSN of the testimony of a witness in another case
despite therein petitioners assertion that he would be denied due process. In admitting
the TSN, the Court ruled that the raising of denial of due process in relation to Section
47, Rule 130 of the Rules of Court, as a ground for objecting to the admissibility of the
TSN was belatedly done. In so doing, therein petitioner waived his right to object based
on said ground.
Petitioners contend that the documents in the criminal case should not have been
admitted in the instant civil case because Section 47 of Rule 130 refers only to
"testimony or deposition." We find such contention to be untenable. Though said section
speaks only of testimony and deposition, it does not mean that documents from a
former case or proceeding cannot be admitted. Said documents can be admitted they
being part of the testimonies of witnesses that have been admitted. Accordingly, they
shall be given the same weight as that to which the testimony may be entitled. 29
On the second assigned error, petitioners contend that the version of petitioner Manliclic
as to how the accident occurred is more credible than respondents version. They
anchor their contention on the fact that petitioner Manliclic was acquitted by the Court of
Appeals of the charge of Reckless Imprudence Resulting in Damage to Property with
Physical Injuries.
To be resolved by the Court is the effect of petitioner Manliclics acquittal in the civil
case.
From the complaint, it can be gathered that the civil case for damages was one arising
from, or based on, quasi-delict. 30 Petitioner Manliclic was sued for his negligence or
reckless imprudence in causing the collision, while petitioner PRBLI was sued for its
failure to exercise the diligence of a good father in the selection and supervision of its
employees, particularly petitioner Manliclic. The allegations read:

"4. That sometime on July 12, 1988 at around 6:20 A.M. plaintiff was on board
the above-described motor vehicle travelling at a moderate speed along the
North Luzon Expressway heading South towards Manila together with
MARCELO MENDOZA, who was then driving the same;
"5. That approximately at kilometer 40 of the North Luzon Express Way, the
above-described motor vehicle was suddenly bumped from behind by a
Philippine Rabbit Bus with Body No. 353 and with plate No. CVD 478 then being
driven by one Mauricio Manliclic of San Jose, Concepcion, Tarlac, who was then
travelling recklessly at a very fast speed and had apparently lost control of his
vehicle;
"6. That as a result of the impact of the collision the above-described motor
vehicle was forced off the North Luzon Express Way towards the rightside where
it fell on its drivers side on a ditch, and that as a consequence, the abovedescribed motor vehicle which maybe valued at EIGHTY THOUSAND PESOS
(P80,000) was rendered a total wreck as shown by pictures to be presented
during the pre-trial and trial of this case;
"7. That also as a result of said incident, plaintiff sustained bodily injuries which
compounded plaintiffs frail physical condition and required his hospitalization
from July 12, 1988 up to and until July 22, 1988, copy of the medical certificate is
hereto attached as Annex "A" and made an integral part hereof;
"8. That the vehicular collision resulting in the total wreckage of the abovedescribed motor vehicle as well as bodily (sic) sustained by plaintiff, was solely
due to the reckless imprudence of the defendant driver Mauricio Manliclic who
drove his Philippine Rabbit Bus No. 353 at a fast speed without due regard or
observance of existing traffic rules and regulations;
"9. That defendant Philippine Rabbit Bus Line Corporation failed to exercise the
diligence of a good father of (sic) family in the selection and supervision of its
drivers; x x x"31
Can Manliclic still be held liable for the collision and be found negligent notwithstanding
the declaration of the Court of Appeals that there was an absence of negligence on his
part?
In exonerating petitioner Manliclic in the criminal case, the Court of Appeals said:
To the following findings of the court a quo, to wit: that accused-appellant was negligent
"when the bus he was driving bumped the jeep from behind"; that "the proximate cause
of the accident was his having driven the bus at a great speed while closely following
the jeep"; x x x

We do not agree.
The swerving of Calaunans jeep when it tried to overtake the vehicle in front of it was
beyond the control of accused-appellant.
xxxx
Absent evidence of negligence, therefore, accused-appellant cannot be held liable for
Reckless Imprudence Resulting in Damage to Property with Physical Injuries as defined
in Article 365 of the Revised Penal Code. 32
From the foregoing declaration of the Court of Appeals, it appears that petitioner
Manliclic was acquitted not on reasonable doubt, but on the ground that he is not the
author of the act complained of which is based on Section 2(b) of Rule 111 of the Rules
of Criminal Procedure which reads:
(b) Extinction of the penal action does not carry with it extinction of the civil, unless the
extinction proceeds from a declaration in a final judgment that the fact from which the
civil might arise did not exist.
In spite of said ruling, petitioner Manliclic can still be held liable for the mishap. The
afore-quoted section applies only to a civil action arising from crime or ex delicto and
not to a civil action arising from quasi-delict or culpa aquiliana. The extinction of civil
liability referred to in Par. (e) of Section 3, Rule 111 [now Section 2 (b) of Rule 111],
refers exclusively to civil liability founded on Article 100 of the Revised Penal Code,
whereas the civil liability for the same act considered as a quasi-delict only and not as a
crime is not extinguished even by a declaration in the criminal case that the criminal act
charged has not happened or has not been committed by the accused. 33
A quasi-delict or culpa aquiliana is a separate legal institution under the Civil Code with
a substantivity all its own, and individuality that is entirely apart and independent from a
delict or crime a distinction exists between the civil liability arising from a crime and
the responsibility for quasi-delicts or culpa extra-contractual. The same negligence
causing damages may produce civil liability arising from a crime under the Penal Code,
or create an action for quasi-delicts or culpa extra-contractual under the Civil Code. 34 It
is now settled that acquittal of the accused, even if based on a finding that he is not
guilty, does not carry with it the extinction of the civil liability based on quasi delict. 35
In other words, if an accused is acquitted based on reasonable doubt on his guilt, his
civil liability arising from the crime may be proved by preponderance of evidence only.
However, if an accused is acquitted on the basis that he was not the author of the act or
omission complained of (or that there is declaration in a final judgment that the fact from
which the civil might arise did not exist), said acquittal closes the door to civil liability
based on the crime or ex delicto. In this second instance, there being no crime or delict

to speak of, civil liability based thereon or ex delicto is not possible. In this case, a civil
action, if any, may be instituted on grounds other than the delict complained of.
As regards civil liability arising from quasi-delict or culpa aquiliana, same will not be
extinguished by an acquittal, whether it be on ground of reasonable doubt or that
accused was not the author of the act or omission complained of (or that there is
declaration in a final judgment that the fact from which the civil liability might arise did
not exist). The responsibility arising from fault or negligence in a quasi-delict is entirely
separate and distinct from the civil liability arising from negligence under the Penal
Code.36 An acquittal or conviction in the criminal case is entirely irrelevant in the civil
case37 based on quasi-delict or culpa aquiliana.
Petitioners ask us to give credence to their version of how the collision occurred and to
disregard that of respondents. Petitioners insist that while the PRBLI bus was in the
process of overtaking respondents jeep, the latter, without warning, suddenly swerved
to the left (fast) lane in order to overtake another jeep ahead of it, thus causing the
collision.
As a general rule, questions of fact may not be raised in a petition for review. The
factual findings of the trial court, especially when affirmed by the appellate court, are
binding and conclusive on the Supreme Court. 38 Not being a trier of facts, this Court will
not allow a review thereof unless:
(1) the conclusion is a finding grounded entirely on speculation, surmise and conjecture;
(2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4)
the judgment is based on a misapprehension of facts; (5) the findings of fact are
conflicting; (6) the Court of Appeals went beyond the issues of the case and its findings
are contrary to the admissions of both appellant and appellees; (7) the findings of fact of
the Court of Appeals are contrary to those of the trial court; (8) said findings of fact are
conclusions without citation of specific evidence on which they are based; (9) the facts
set forth in the petition as well as in the petitioner's main and reply briefs are not
disputed by the respondents; and (10) the findings of fact of the Court of Appeals are
premised on the supposed absence of evidence and contradicted by the evidence on
record.39
After going over the evidence on record, we do not find any of the exceptions that would
warrant our departure from the general rule. We fully agree in the finding of the trial
court, as affirmed by the Court of Appeals, that it was petitioner Manliclic who was
negligent in driving the PRBLI bus which was the cause of the collision. In giving
credence to the version of the respondent, the trial court has this say:

x x x Thus, which of the two versions of the manner how the collision took place was
correct, would be determinative of who between the two drivers was negligent in the
operation of their respective vehicle.
In this regard, it should be noted that in the statement of Mauricio Manliclic (Exh. 15)
given to the Philippine Rabbit Investigator CV Cabading no mention was made by him
about the fact that the driver of the jeep was overtaking another jeep when the collision
took place. The allegation that another jeep was being overtaken by the jeep of
Calaunan was testified to by him only in Crim. Case No. 684-M-89 before the Regional
Trial Court in Malolos, Bulacan and before this Court. Evidently, it was a product of an
afterthought on the part of Mauricio Manliclic so that he could explain why he should not
be held responsible for the incident. His attempt to veer away from the truth was also
apparent when it would be considered that in his statement given to the Philippine
Rabbit Investigator CV Cabading (Exh. 15), he alleged that the Philippine Rabbit Bus
bumped the jeep of Calaunan while the Philippine Rabbit Bus was behind the said jeep.
In his testimony before the Regional Trial Court in Malolos, Bulacan as well as in this
Court, he alleged that the Philippine Rabbit Bus was already on the left side of the jeep
when the collision took place. For this inconsistency between his statement and
testimony, his explanation regarding the manner of how the collision between the jeep
and the bus took place should be taken with caution. It might be true that in the
statement of Oscar Buan given to the Philippine Rabbit Investigator CV Cabading, it
was mentioned by the former that the jeep of plaintiff was in the act of overtaking
another jeep when the collision between the latter jeep and the Philippine Rabbit Bus
took place. But the fact, however, that his statement was given on July 15, 1988, one
day after Mauricio Manliclic gave his statement should not escape attention. The oneday difference between the giving of the two statements would be significant enough to
entertain the possibility of Oscar Buan having received legal advise before giving his
statement. Apart from that, as between his statement and the statement of Manliclic
himself, the statement of the latter should prevail. Besides, in his Affidavit of March 10,
1989, (Exh. 14), the unreliability of the statement of Oscar Buan (Exh. 13) given to CV
Cabading rear its "ugly head" when he did not mention in said affidavit that the jeep of
Calaunan was trying to overtake another jeep when the collision between the jeep in
question and the Philippine Rabbit bus took place.
xxxx
If one would believe the testimony of the defendant, Mauricio Manliclic, and his
conductor, Oscar Buan, that the Philippine Rabbit Bus was already somewhat parallel to
the jeep when the collision took place, the point of collision on the jeep should have
been somewhat on the left side thereof rather than on its rear. Furthermore, the jeep
should have fallen on the road itself rather than having been forced off the road.
Useless, likewise to emphasize that the Philippine Rabbit was running very fast as
testified to by Ramos which was not controverted by the defendants. 40

Having ruled that it was petitioner Manliclics negligence that caused the smash up,
there arises the juris tantum presumption that the employer is negligent, rebuttable only
by proof of observance of the diligence of a good father of a family. 41 Under Article
218042 of the New Civil Code, when an injury is caused by the negligence of the
employee, there instantly arises a presumption of law that there was negligence on the
part of the master or employer either in the selection of the servant or employee, or in
supervision over him after selection or both. The liability of the employer under Article
2180 is direct and immediate; it is not conditioned upon prior recourse against the
negligent employee and a prior showing of the insolvency of such employee. Therefore,
it is incumbent upon the private respondents to prove that they exercised the diligence
of a good father of a family in the selection and supervision of their employee. 43
In the case at bar, petitioner PRBLI maintains that it had shown that it exercised the
required diligence in the selection and supervision of its employees, particularly
petitioner Manliclic. In the matter of selection, it showed the screening process that
petitioner Manliclic underwent before he became a regular driver. As to the exercise of
due diligence in the supervision of its employees, it argues that presence of ready
investigators (Ganiban and Cabading) is sufficient proof that it exercised the required
due diligence in the supervision of its employees.
In the selection of prospective employees, employers are required to examine them as
to their qualifications, experience and service records. In the supervision of employees,
the employer must formulate standard operating procedures, monitor their
implementation and impose disciplinary measures for the breach thereof. To fend off
vicarious liability, employers must submit concrete proof, including documentary
evidence, that they complied with everything that was incumbent on them. 44
In Metro Manila Transit Corporation v. Court of Appeals, 45 it was explained that:
Due diligence in the supervision of employees on the other hand, includes the
formulation of suitable rules and regulations for the guidance of employees and the
issuance of proper instructions intended for the protection of the public and persons with
whom the employer has relations through his or its employees and the imposition of
necessary disciplinary measures upon employees in case of breach or as may be
warranted to ensure the performance of acts indispensable to the business of and
beneficial to their employer. To this, we add that actual implementation and monitoring
of consistent compliance with said rules should be the constant concern of the
employer, acting through dependable supervisors who should regularly report on their
supervisory functions.
In order that the defense of due diligence in the selection and supervision of employees
may be deemed sufficient and plausible, it is not enough to emptily invoke the existence
of said company guidelines and policies on hiring and supervision. As the negligence of

the employee gives rise to the presumption of negligence on the part of the employer,
the latter has the burden of proving that it has been diligent not only in the selection of
employees but also in the actual supervision of their work. The mere allegation of the
existence of hiring procedures and supervisory policies, without anything more, is
decidedly not sufficient to overcome such presumption.
We emphatically reiterate our holding, as a warning to all employers, that "the
formulation of various company policies on safety without showing that they were being
complied with is not sufficient to exempt petitioner from liability arising from negligence
of its employees. It is incumbent upon petitioner to show that in recruiting and
employing the erring driver the recruitment procedures and company policies on
efficiency and safety were followed." x x x.
The trial court found that petitioner PRBLI exercised the diligence of a good father of a
family in the selection but not in the supervision of its employees. It expounded as
follows:
From the evidence of the defendants, it seems that the Philippine Rabbit Bus Lines has
a very good procedure of recruiting its driver as well as in the maintenance of its
vehicles. There is no evidence though that it is as good in the supervision of its
personnel. There has been no iota of evidence introduced by it that there are rules
promulgated by the bus company regarding the safe operation of its vehicle and in the
way its driver should manage and operate the vehicles assigned to them. There is no
showing that somebody in the bus company has been employed to oversee how its
driver should behave while operating their vehicles without courting incidents similar to
the herein case. In regard to supervision, it is not difficult to observe that the Philippine
Rabbit Bus Lines, Inc. has been negligent as an employer and it should be made
responsible for the acts of its employees, particularly the driver involved in this case.
We agree. The presence of ready investigators after the occurrence of the accident is
not enough to exempt petitioner PRBLI from liability arising from the negligence of
petitioner Manliclic. Same does not comply with the guidelines set forth in the cases
above-mentioned. The presence of the investigators after the accident is not enough
supervision. Regular supervision of employees, that is, prior to any accident, should
have been shown and established. This, petitioner failed to do. The lack of supervision
can further be seen by the fact that there is only one set of manual containing the rules
and regulations for all the drivers of PRBLI. 46 How then can all the drivers of petitioner
PRBLI know and be continually informed of the rules and regulations when only one
manual is being lent to all the drivers?
For failure to adduce proof that it exercised the diligence of a good father of a family in
the selection and supervision of its employees, petitioner PRBLI is held solidarily
responsible for the damages caused by petitioner Manliclics negligence.

We now go to the award of damages. The trial court correctly awarded the amount
of P40,838.00 as actual damages representing the amount paid by respondent for the
towing and repair of his jeep. 47 As regards the awards for moral and exemplary
damages, same, under the circumstances, must be modified. The P100,000.00
awarded by the trial court as moral damages must be reduced
to P50,000.00.48 Exemplary damages are imposed by way of example or correction for
the public good.49 The amount awarded by the trial court must, likewise, be lowered
to P50,000.00.50 The award of P15,000.00 for attorneys fees and expenses of litigation
is in order and authorized by law.51
WHEREFORE, premises considered, the instant petition for review is DENIED. The
decision of the Court of Appeals in CA-G.R. CV No. 55909 is AFFIRMED with the
MODIFICATION that (1) the award of moral damages shall be reduced to P50,000.00;
and (2) the award of exemplary damages shall be lowered to P50,000.00. Costs against
petitioners.
SO ORDERED.
EN BANC
G.R. No. 182498
Present:
GEN. AVELINO I. RAZON, JR.,
Chief,
Philippine
National
Police (PNP); Police Chief
Superintendent
RAUL
CASTAEDA, Chief, Criminal
Investigation and Detection
Group (CIDG); Police Senior
Superintendent LEONARDO A.
ESPINA, Chief, Police AntiCrime
and
Emergency
Response (PACER); and GEN.
JOEL R. GOLTIAO, Regional
Director of ARMM, PNP,
Petitioners,
- versus -

PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,

MARY JEAN B. TAGITIS, herein

represented by ATTY. FELIPE

P. ARCILLA, JR., Attorney-inFact,

ABAD, and
VILLARAMA, JR., JJ.

Respondent.

Promulgated:

December 3, 2009

x-----------------------------------------------------------------------------------------x
DECISION
BRION, J.:

We review in this petition for review on certiorari[1] the decision dated March 7,
2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.[2] This CA decision
confirmed the enforced disappearance of Engineer Morced N. Tagitis (Tagitis) and
granted the Writ of Amparo at the petition of his wife, Mary Jean B. Tagitis
(respondent). The dispositive portion of the CA decision reads:

WHEREFORE,
premises
considered,
petition
is
hereby GRANTED. The Court hereby FINDS that this is an enforced
disappearance within the meaning of the United Nations instruments, as

used in the Amparo Rules. The privileges of the writ of amparo are
hereby extended to Engr. Morced Tagitis.

Consequently: (1) respondent GEN. EDGARDO M. DOROMAL,

Chief, Criminal Investigation and Detention Group (CIDG) who should
order COL. JOSE VOLPANE PANTE, CIDG-9 Chief, Zamboanga City, to
aid him; (2) respondent GEN. AVELINO I. RAZON, Chief, PNP, who
should order his men, namely: (a) respondent GEN. JOEL GOLTIAO,
Regional Director of ARMM PNP, (b) COL. AHIRON AJIRIM, both head of
TASK FORCE TAGITIS, and (c) respondent SR. SUPERINTENDENT
LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency
Response, to aid him as their superior- are hereby DIRECTED to
exert extraordinary diligence and efforts, not only to protect the life,
liberty and security of Engr. Morced Tagitis, but also to extend
the privileges of the writ of amparo to Engr. Morced Tagitis and his family,
and to submit a monthly report of their actions to this Court, as a way
ofPERIODIC REVIEW to enable this Court to monitor the action of
respondents.

This amparo case is hereby DISMISSED as to respondent LT.

GEN. ALEXANDER YANO, Commanding General, Philippine Army, and
as to respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task Force
Comet, Zamboanga City, both being with the military, which is a separate
and distinct organization from the police and the CIDG, in terms of
operations, chain of command and budget.
This Decision reflects the nature of the Writ of Amparo a protective remedy against
violations or threats of violation against the rights to life, liberty and security. [3] It
embodies, as a remedy, the courts directive to police agencies to undertake
specified courses of action to address the disappearance of an individual, in this
case, Engr. Morced N. Tagitis.It does not determine guilt nor pinpoint criminal
culpability for the disappearance; rather, it determines responsibility, or at
least accountability, for the enforced disappearance for purposes of imposing the
appropriate remedies to address the disappearance. Responsibility refers to the
extent the actors have been established by substantial evidence to have participated
in whatever way, by action or omission, in an enforced disappearance, as a measure
of the remedies this Court shall craft, among them, the directive to file the
appropriate criminal and civil cases against the responsible parties in the proper
courts. Accountability, on the other hand, refers to the measure of remedies that
should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with knowledge relating to the

enforced disappearance and who carry the burden of disclosure; or those who carry,
but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the issuance of the
Writ of Amparo is justified by our primary goal of addressing the disappearance, so
that the life of the victim is preserved and his liberty and security are restored.
We highlight this nature of a Writ of Amparo case at the outset to stress that the
unique situations that call for the issuance of the writ, as well as the considerations
and measures necessary to address these situations, may not at all be the same as
the standard measures and procedures in ordinary court actions and proceedings. In
this sense, the Rule on the Writ of Amparo[4] (Amparo Rule) issued by this Court is
unique. The Amparo Rule should be read, too, as a work in progress, as its
directions and finer points remain to evolve through time and jurisprudence and
through the substantive laws that Congress may promulgate.
THE FACTUAL ANTECEDENTS
The background facts, based on the petition and the records of the case, are
summarized below.
The established facts show that Tagitis, a consultant for the World Bank and the
Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship
Programme, was last seen in Jolo, Sulu. Together with Arsimin Kunnong (Kunnong),
an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of October 31,
2007 from a seminar in Zamboanga City. They immediately checked-in at ASY
Pension House. Tagitis asked Kunnong to buy him a boat ticket for his return trip the
following day to Zamboanga.When Kunnong returned from this errand, Tagitis was
no longer around.[5] The receptionist related that Tagitis went out to buy food at
around 12:30 in the afternoon and even left his room key with the desk. [6] Kunnong
looked for Tagitis and even sent a text message to the latters Manila-based
secretary who did not know of Tagitis whereabouts and activities either; she advised
Kunnong to simply wait.[7]
On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP
professor of Muslim studies and Tagitis fellow student counselor at the IDB, reported
Tagitis disappearance to the Jolo Police Station. [8] On November 7, 2007, Kunnong
executed a sworn affidavit attesting to what he knew of the circumstances
surrounding Tagitis disappearance.[9]
More than a month later (on December 28, 2007), the respondent filed a Petition for
the Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty. Felipe P.
Arcilla.[10] The petition was directed against Lt. Gen. Alexander Yano, Commanding
General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National Police
(PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation and Detention
Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-Crime and
Emergency Response; Gen. Joel Goltiao, Regional Director, ARMM-PNP; and Gen.
Ruben Rafael, Chief, Anti-Terror Task Force Comet [collectively referred to

as petitioners]. After reciting Tagitis personal circumstances and the facts outlined
above, the petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension
house to take his early lunch but while out on the street, a couple of burly
men believed to be police intelligence operatives, forcibly took him
and boarded the latter on a motor vehicle then sped away without the
knowledge of his student, Arsimin Kunnong;
8. As instructed, in the late afternoon of the same day, Kunnong returned to the
pension house, and was surprised to find out that subject Engr. Tagitis
cannot [sic] be contacted by phone and was not also around and his room
was closed and locked;
9. Kunnong requested for the key from the desk of the pension house who [sic]
assisted him to open the room of Engr. Tagitis, where they discovered that
the personal belongings of Engr. Tagitis, including cell phones, documents
and other personal belongings were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of
another IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts
in trying to locate the whereabouts of Engr. Tagitis and when he reported
the matter to the police authorities in Jolo, he was immediately given a
ready answer that Engr. Tagitis could have been abducted by the Abu
Sayyaf group and other groups known to be fighting against the
government;
12. Being scared with [sic] these suggestions and insinuations of the police
officers, Kunnong reported the matter to the [respondent, wife of Engr.
Tagitis] by phone and other responsible officers and coordinators of the
IDB Scholarship Programme in the Philippines, who alerted the office of
the Governor of ARMM who was then preparing to attend the OIC meeting
in Jeddah, Saudi Arabia;
13. [Respondent], on the other hand, approached some of her co-employees with
the Land Bank in Digos branch, Digos City, Davao del Sur who likewise
sought help from some of their friends in the military who could help them
find/locate the whereabouts of her husband;

14. All of these efforts of the [respondent] did not produce any positive results
except the information from persons in the military who do not want to be
identified that Engr. Tagitis is in the hands of the uniformed men;
15. According to reliable information received by the [respondent], subject Engr.
Tagitis is in the custody of police intelligence operatives, specifically
with the CIDG, PNP Zamboanga City,being held against his will in an
earnest attempt of the police to involve and connect Engr. Tagitis
with the different terrorist groups;
xxxx
17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to
find her husband, but [respondents] request and pleadings failed to
produce any positive results;
18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by
the police that her husband, subject of the petition, was not missing but
was with another woman having good time somewhere, which is a clear
indication of the [petitioners] refusal to help and provide police assistance
in locating her missing husband;
19. The continued failure and refusal of the [petitioners] to release and/or turnover subject Engr. Tagitis to his family or even to provide truthful
information to [the respondent] of the subjects whereabouts, and/or allow
[the respondent] to visit her husband Engr. Morced Tagitis, caused so
much sleepless nights and serious anxieties;
20. Lately, [the respondent] was again advised by one of the [petitioners] to go to
the ARMM Police Headquarters again in Cotobato City and also to the
different Police Headquarters including [those] in Davao City, in
Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all these
places have been visited by the [respondent] in search for her husband,
which entailed expenses for her trips to these places thereby resorting her
to borrowings and beggings [sic] for financial help from friends and
relatives only to try complying [sic] to the different suggestions of these
police officers, despite of which, her efforts produced no positive results up
to the present time;
21. In fact at times, some police officers, who [sympathized with] the sufferings
undergone by the [respondent], informed her that they are not the proper
persons that she should approach, but assured her not to worry because
her husband is [sic] in good hands;

22. The unexplained uncooperative behavior of the [petitioners] to the

[respondents] request for help and failure and refusal of the [petitioners] to
extend the needed help, support and assistance in locating the
whereabouts of Engr. Tagitis who had been declared missing since
October 30, 2007 which is almost two (2) months now, clearly indicates
that the [petitioners] are actually in physical possession and custody of
[respondents] husband, Engr. Tagitis;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies
but to no avail, and under the circumstances, [the respondent] has no
other plain, speedy and adequate remedy to protect and get the release of
subject Engr. Morced Tagitis from the illegal clutches of the [petitioners],
their intelligence operatives and the like which are in total violation of the
subjects human and constitutional rights, except the issuance of a WRIT
OF AMPARO. [Emphasis supplied]
On the same day the petition was filed, the CA immediately issued the Writ
of Amparo, set the case for hearing on January 7, 2008, and directed the petitioners
to file their verified return within seventy-two (72) hours from service of the writ. [11]
In their verified Return filed during the hearing of January 27, 2008, the
petitioners denied any involvement in or knowledge of Tagitis alleged
abduction. They argued that the allegations of the petition were incomplete and did
not constitute a cause of action against them; were baseless, or at best speculative;
and were merely based on hearsay evidence. [12]
The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return,
stated that: he did not have any personal knowledge of, or any participation in, the
alleged disappearance; that he had been designated by President Gloria Macapagal
Arroyo as the head of a special body called TASK FORCE USIG, to address
concerns about extralegal killings and enforced disappearances; the Task
Force, inter alia, coordinated with the investigators and local police, held case
conferences, rendered legal advice in connection to these cases; and gave the
following summary:[13]
xxxx
4.
a)
On November 5, 2007, the Regional Director, Police
Regional Office ARMM submitted a report on the alleged disappearance of
one Engr. Morced Tagitis. According to the said report, the victim checkedin at ASY Pension House on October 30, 2007 at about 6:00 in the

morning and then roamed around Jolo, Sulu with an unidentified

companion. It was only after a few days when the said victim did not return
that the matter was reported to Jolo MPS. Afterwards, elements of Sulu
PPO conducted a thorough investigation to trace and locate the
whereabouts of the said missing person, but to no avail. The said PPO is
still conducting investigation that will lead to the immediate findings of the
whereabouts of the person.
b)
Likewise, the Regional Chief, 9RCIDU submitted a
Progress Report to the Director, CIDG. The said report stated among
others that: subject person attended an Education Development Seminar
set on October 28, 2007 conducted at Ateneo de Zamboanga,
Zamboanga City together with a Prof. Matli. On October 30, 2007, at
around 5:00 oclock in the morning, Engr. Tagitis reportedly arrived at Jolo
Sulu wharf aboard M/V Bounty Cruise, he was then billeted at ASY
Pension House. At about 6:15 oclock in the morning of the same date, he
instructed his student to purchase a fast craft ticket bound for Zamboanga
City and will depart from Jolo, Sulu on October 31, 2007. That on or about
10:00 oclock in the morning, Engr. Tagitis left the premises of ASY
Pension House as stated by the cashier of the said pension house. Later
in the afternoon, the student instructed to purchase the ticket arrived at the
pension house and waited for Engr. Tagitis, but the latter did not return. On
its part, the elements of 9RCIDU is now conducting a continuous case
build up and information gathering to locate the whereabouts of Engr.
Tagitis.
c)
That the Director, CIDG directed the conduct of the
search in all divisions of the CIDG to find Engr. Tagitis who was allegedly
abducted or illegally detained by covert CIDG-PNP Intelligence Operatives
since October 30, 2007, but after diligent and thorough search, records
show that no such person is being detained in CIDG or any of its
department or divisions.
5. On this particular case, the Philippine National Police exhausted all
possible efforts, steps and actions available under the circumstances and
continuously search and investigate [sic] the instant case. This immense
mandate, however, necessitates the indispensable role of the citizenry, as
the PNP cannot stand alone without the cooperation of the victims and
witnesses to identify the perpetrators to bring them before the bar of
justice and secure their conviction in court.

The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his
affidavit, also attached to the Return of the Writ, attesting that upon receipt of the
Writ ofAmparo, he caused the following:[14]
xxxx
That immediately upon receipt on December 29, 2007 of the Resolution of the
Honorable Special Fourth Division of the Court of Appeals, I immediately
directed the Investigation Division of this Group [CIDG] to conduct urgent
investigation on the alleged enforced disappearance of Engineer Morced
Tagitis.
That based on record, Engr. Morced N. Tagitis attended an Education
Development Seminar on October 28, 2007 at Ateneo de Zamboanga at
Zamboanga City together with Prof. Abdulnasser Matli. On October 30,
2007, at around six oclock in the morning he arrived at Jolo, Sulu. He was
assisted by his student identified as Arsimin Kunnong of the Islamic
Development Bank who was also one of the participants of the said
seminar. He checked in at ASY pension house located [sic] Kakuyagan,
Patikul, Sulu on October 30, 2007 with [sic] unidentified companion. At
around six oclock in the morning of even date, Engr. Tagitis instructed his
student to purchase a fast craft ticket for Zamboanga City. In the afternoon
of the same date, Kunnong arrived at the pension house carrying the
ticket he purchased for Engr. Tagitis, but the latter was nowhere to be
found anymore. Kunnong immediately informed Prof. Abdulnasser Matli
who reported the incident to the police. The CIDG is not involved in the
disappearance of Engr. Morced Tagitis to make out a case of an enforced
disappearance which presupposes a direct or indirect involvement of the
government.
That herein [petitioner] searched all divisions and departments for a
person named Engr. Morced N. Tagitis, who was allegedly abducted or
illegally detained by covert CIDG-PNP Intelligence Operatives since
October 30, 2007 and after a diligent and thorough research records show
that no such person is being detained in CIDG or any of its department or
divisions.
That nevertheless, in order to determine the circumstances surrounding
Engr. Morced Tagitis [sic] alleged enforced disappearance, the
undersigned had undertaken immediate investigation and will pursue
investigations up to its full completion in order to aid in the prosecution of
the person or persons responsible therefore.
Likewise attached to the Return of the Writ was PNP-PACER [15] Chief PS Supt.
Leonardo A. Espinas affidavit which alleged that: [16]

xxxx
That, I and our men and women in PACER vehemently deny any
participation in the alleged abduction or illegally [sic] detention of ENGR.
MORCED N. TAGITS on October 30, 2007. As a matter of fact, nowhere in
the writ was mentioned that the alleged abduction was perpetrated by
elements of PACER nor was there any indication that the alleged
abduction or illegal detention of ENGR. TAGITIS was undertaken jointly by
our men and by the alleged covert CIDG-PNP intelligence
operatives alleged to have abducted or illegally detained ENGR. TAGITIS.
That I was shocked when I learned that I was implicated in the alleged
disappearance of ENGR. MORCED in my capacity as the chief PACER
[sic] considering that our office, the Police Anti-Crime and Emergency
Response (PACER), a special task force created for the purpose of
neutralizing or eradicating kidnap-for-ransom groups which until now
continue to be one of the menace of our society is a respondent in
kidnapping or illegal detention case. Simply put, our task is to go after
kidnappers and charge them in court and to abduct or illegally detain or
kidnap anyone is anathema to our mission.
That right after I learned of the receipt of the WRIT OF AMPARO, I
directed the Chief of PACER Mindanao Oriental (PACER-MOR) to conduct
pro-active measures to investigate, locate/search the subject, identify and
apprehend the persons responsible, to recover and preserve evidence
related to the disappearance of ENGR. MORCED TAGITIS, which may aid
in the prosecution of the person or persons responsible, to identify
witnesses and obtain statements from them concerning the disappearance
and to determine the cause, manner, location and time of disappearance
as well as any pattern or practice that may have brought about the
disappearance.
That I further directed the chief of PACER-MOR, Police Superintendent
JOSE ARNALDO BRIONES JR., to submit a written report regarding the
disappearance of ENGR. MORCED.
That in compliance with my directive, the chief of PACER-MOR sent
through fax his written report.
That the investigation and measures being undertaken to locate/search
the subject in coordination with Police Regional Office, Autonomous
Region of Muslim Mindanao (PRO-ARMM) and Jolo Police Provincial
Office (PPO) and other AFP and PNP units/agencies in the area are
ongoing with the instruction not to leave any stone unturned so to speak in

the investigation until the perpetrators in the instant case are brought to
the bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE in dealing with the
WRIT OF AMPARO just issued.

Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen.
Goltiao), also submitted his affidavit detailing the actions that he had taken upon
receipt of the report on Tagitis disappearance, viz:[17]
xxxx
3) For the record:
1.
I am the Regional Director of Police Regional Office
ARMM now and during the time of the incident;
xxxx
4. It is my duty to look into and take appropriate measures on any
cases of reported enforced disappearances and when they are being
alluded to my office;
5. On November 5, 2007, the Provincial Director of Sulu Police Provincial
Office reported to me through Radio Message Cite No. SPNP3-1105-072007 that on November 4, 2007 at around 3:30 p.m., a certain
Abdulnasser Matli, an employee of Islamic Development Bank, appeared
before the Office of the Chief of Police, Jolo Police Station, and reported
the disappearance of Engr. Morced Tagitis, scholarship coordinator of
Islamic Development Bank, Manila;
6. There was no report that Engr. Tagibis was last seen in the company of
or taken by any member of the Philippine National Police but rather he just
disappeared from ASY Pension House situated at Kakuyagan Village,
Village, Patikul, Sulu, on October 30, 2007, without any trace of forcible
abduction or arrest;
7. The last known instance of communication with him was when Arsimin
Kunnong, a student scholar, was requested by him to purchase a vessel
ticket at the Office of Weezam Express, however, when the student
returned back to ASY Pension House, he no longer found Engr. Tagitis
there and when he immediately inquired at the information counter
regarding his whereabouts [sic], the person in charge in the counter

informed him that Engr. Tagitis had left the premises on October 30, 2007
around 1 oclock p.m. and never returned back to his room;
8. Immediately after learning the incident, I called and directed the
Provincial Director of Sulu Police Provincial Office and other units through
phone call and text messages to conduct investigation [sic] to determine
the whereabouts of the aggrieved party and the person or persons
responsible for the threat, act or omission, to recover and preserve
evidence related to the disappearance of Engr. Tagitis, to identify
witnesses and obtain statements from them concerning his
disappearance, to determine the cause and manner of his disappearance,
to identify and apprehend the person or persons involved in the
disappearance so that they shall be brought before a competent court;
9. Thereafter, through my Chief of the Regional Investigation and
Detection Management Division, I have caused the following directives:
a)

Radio Message Cite No. RIDMD-1122-07-358 dated November

22, 2007 directing PD Sulu PPO to conduct joint investigation with
CIDG and CIDU ARMM on the matter;

b)

Radio Message Cite No. RIDMD-1128-07-361 dated November

28, 2007 directing PD Sulu PPO to expedite compliance to my
previous directive;

c)

Memorandum dated December 14, 2007 addressed to PD Sulu

PPO reiterating our series of directives for investigation and
directing him to undertake exhaustive coordination efforts with the
owner of ASY Pension House and student scholars of IDB in order
to secure corroborative statements regarding the disappearance
and whereabouts of said personality;

d)

Memorandum dated December 24, 2007 addressed to PD Sulu

PPO directing him to maximize efforts to establish clues on the
whereabouts of Engr. Tagitis by seeking the cooperation of Prof.
Abdulnasser Matli and Arsimin Kunnong and/or whenever
necessary, for them to voluntarily submit for polygraph examination
with the NBI so as to expunge all clouds of doubt that they may
somehow have knowledge or idea to his disappearance;

e)

Memorandum dated December 27, 2007 addressed to the

Regional Chief, Criminal Investigation and Detection Group, Police
Regional Office 9, Zamboanga City, requesting assistance to

investigate the cause and unknown disappearance of Engr. Tagitis

considering that it is within their area of operational jurisdiction;
f)

Memorandum from Chief, Intelligence Division, PRO ARMM dated

December 30, 2007 addressed to PD Sulu PPO requiring them to
submit complete investigation report regarding the case of Engr.
Tagitis;

10. In compliance to our directives, PD Sulu PPO has exerted his [sic]
efforts to conduct investigation [sic] on the matter to determine the
whereabouts of Engr. Tagitis and the circumstances related to his
disappearance and submitted the following:
a)

Progress Report dated November 6, 2007 through Radio Message

Cite No. SPNP3-1106-10-2007;

b)

Radio Message Cite No. SPIDMS-1205-47-07 informing this office

that they are still monitoring the whereabouts of Engr. Tagitis;

c)

Investigation Report dated December 31, 2007 from the Chief of

Police, Jolo Police Station, Sulu PPO;

11. This incident was properly reported to the PNP Higher Headquarters
as shown in the following:
a)

Memorandum dated November 6, 2007 addressed to the Chief, PNP

informing him of the facts of the disappearance and the action being
taken by our office;

b)

Memorandum dated November 6, 2007 addressed to the Director,

Directorate for Investigation and Detection Management, NHQ PNP;

c)

Memorandum dated December 30, 2007 addressed to the Director,

DIDM;

4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis

cannot be determined but our office is continuously intensifying the
conduct of information gathering, monitoring and coordination for the
immediate solution of the case.
Since the disappearance of Tagistis was practically admitted and taking note of
favorable actions so far taken on the disappearance, the CA directed Gen. Goltiao

as the officer in command of the area of disappearance to form TASK FORCE

TAGITIS.[18]
Task Force Tagitis
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt.
Ajirim) to head TASK FORCE TAGITIS.[19] The CA subsequently set three hearings
to monitor whether TASK FORCE TAGITIS was exerting extraordinary efforts in
handling the disappearance of Tagitis. [20] As planned, (1) the first hearing would be to
mobilize the CIDG, Zamboanga City; (2) the second hearing would be to mobilize
intelligence with Abu Sayyaf and ARMM; and (3) the third hearing would be to
mobilize the Chief of Police of Jolo, Sulu and the Chief of Police of Zamboanga City
and other police operatives.[21]
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA an
intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo Police
Station, stating a possible motive for Tagitis disappearance. [22] The intelligence report
was apparently based on the sworn affidavit dated January 4, 2008 of Muhammad
Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic Studies at the University of
the Philippines and an Honorary Student Counselor of the IDB Scholarship Program
in the Philippines, who told the Provincial Governor of Sulu that: [23]
[Based] on reliable information from the Office of Muslim Affairs in Manila,
Tagitis has reportedly taken and carried away more or less Five Million
Pesos (P5,000,000.00) deposited and entrusted to his [personal] bank
accounts by the Central Office of IDB, Jeddah, Kingdom of Saudi Arabia,
which [was] intended for the IDB Scholarship Fund.
In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to be
responsible, he personally went to the CIDG office in Zamboanga City to conduct an
ocular inspection/investigation, particularly of their detention cells. [24] PS Supt. Ajirim
stated that the CIDG, while helping TASK FORCE TAGITIS investigate the
disappearance of Tagitis, persistently denied any knowledge or complicity in any
abduction.[25] He further testified that prior to the hearing, he had already mobilized
and given specific instructions to their supporting units to perform their respective
tasks; that they even talked to, but failed to get any lead from the respondent in Jolo.
[26]
In his submitted investigation report dated January 16, 2008, PS Supt. Ajirim
concluded:[27]
9. Gleaned from the undersigned inspection and observation at the Headquarters
9 RCIDU and the documents at hand, it is my own initial conclusion that
the 9RCIDU and other PNP units in the area had no participation neither
[sic] something to do with [sic] mysterious disappearance of Engr. Morced
Tagitis last October 30, 2007. Since doubt has been raised regarding the
emolument on the Islamic Development Bank Scholar program of IDB that
was reportedly deposited in the personal account of Engr. Tagitis by the

IDB central office in Jeddah, Kingdom of Saudi Arabia.Secondly, it could

might [sic] be done by resentment or sour grape among students who are
applying for the scholar [sic] and were denied which was allegedly
conducted/screened by the subject being the coordinator of said program.
20. It is also premature to conclude but it does or it may and [sic] presumed that
the motive behind the disappearance of the subject might be due to the
funds he maliciously spent for his personal interest and wanted to elude
responsibilities from the institution where he belong as well as to the
Islamic student scholars should the statement of Prof. Matli be true or
there might be a professional jealousy among them.
xxxx
It is recommended that the Writ of Amparo filed against the respondents
be dropped and dismissed considering on [sic] the police and military
actions in the area particularly the CIDG are exerting their efforts and
religiously doing their tasked [sic] in the conduct of its intelligence
monitoring and investigation for the early resolution of this instant
case. But rest assured, our office, in coordination with other lawenforcement agencies in the area, are continuously and religiously
conducting our investigation for the resolution of this case.
On February 4, 2008, the CA issued an ALARM WARNING that TASK FORCE
TAGITIS did not appear to be exerting extraordinary efforts in resolving Tagitis
disappearance on the following grounds:[28]
(1)
This Court FOUND that it was only as late as January
28, 2008, after the hearing, that GEN. JOEL GOLTIAO and COL. AHIRON
AJIRIM had requested for clear photographs when it should have been
standard operating procedure in kidnappings or disappearances that the
first agenda was for the police to secure clear pictures of the missing
person, Engr. Morced Tagitis, for dissemination to all parts of the country
and to neighboring countries. It had been three (3) months since GEN.
JOEL GOLTIAO admitted having been informed on November 5, 2007 of
the alleged abduction of Engr. Morced Tagitis by alleged bad elements of
the CIDG. It had been more than one (1) month since the Writ of
Amparo had been issued on December 28, 2007. It had been three (3)
weeks when battle formation was ordered through Task Force Tagitis, on
January 17, 2008. It was only on January 28, 2008 when the Task Force
Tagitis requested for clear and recent photographs of the missing person,
Engr. Morced Tagitis, despite the Task Force Tagitis claim that they
already had an all points bulletin, since November 5, 2007, on the missing

person, Engr. Morced Tagitis. How could the police look for someone who
disappeared if no clear photograph had been disseminated?
(2)
Furthermore, Task Force Tagitis COL. AHIROM AJIRIM
informed this Court that P/Supt KASIM was designated as Col. Ahirom
Ajirims replacement in the latters official designated post. Yet, P/Supt
KASIMs subpoena was returned to this Court unserved. Since this Court
was made to understand that it was P/Supt KASIM who was the
petitioners unofficial source of the military intelligence information that
Engr. Morced Tagitis was abducted by bad elements of the CIDG (par. 15
of the Petition), the close contact between P/Supt KASIM and Col. Ahirom
Ajirim of TASK FORCE TAGITIS should have ensured the appearance of
Col. KASIM in response to this courts subpoena and COL. KASIM could
have confirmed the military intelligence information that bad elements of
the CIDG had abducted Engr. Morced Tagitis.

Testimonies for the Respondent

On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct
examination that she went to Jolo and Zamboanga in her efforts to locate her
husband. She said that a friend from Zamboanga holding a high position in the
military (whom she did not then identify) gave her information that allowed her to
specify her allegations, particularly paragraph 15 of the petition. [29] This friend also
told her that her husband [was] in good hands. [30] The respondent also testified that
she sought the assistance of her former boss in Davao City, Land Bank Bajada
Branch Manager Rudy Salvador, who told her that PNP CIDG is holding [her
husband], Engineer Morced Tagitis.[31] The respondent recounted that she went to
Camp Katitipan in Davao City where she met Col. Julasirim Ahadin Kasim (Col.
Kasim/Sr. Supt Kasim) who read to her and her friends (who were then with her) a
highly confidential report that contained the alleged activities of Engineer Tagitis and
informed her that her husband was abducted because he is under custodial
investigation for being a liaison for J.I. or Jemaah Islamiah. [32]
On January 17, 2008, the respondent on cross-examination testified that she is
Tagitis second wife, and they have been married for thirteen years; Tagitis was
divorced from his first wife. [33] She last communicated with her husband on October
29, 2007 at around 7:31 p.m. through text messaging; Tagitis was then on his way to
Jolo, Sulu, from Zamboanga City.[34]
The respondent narrated that she learned of her husbands disappearance on
October 30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her
that she had not heard from her father since the time they arranged to meet in
Manila on October 31, 2007.[35] The respondent explained that it took her a few days
(or on November 5, 2007) to personally ask Kunnong to report her husbands

disappearance to the Jolo Police Station, since she had the impression that her
husband could not communicate with her because his cellular phones battery did not
have enough power, and that he would call her when he had fully-charged his
cellular phones battery.[36]
The respondent also identified the high-ranking military friend, who gave her the
information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr
(Col. Ancanan). She met him in Camp Karingal, Zamboanga through her boss.
[37]
She also testified that she was with three other people, namely, Mrs. Marydel
Martin Talbin and her two friends from Mati City, Davao Oriental, when Col. Kasim
read to them the contents of the highly confidential report at Camp Katitipan, Davao
City. The respondent further narrated that the report indicated that her husband met
with people belonging to a terrorist group and that he was under custodial
investigation. She then told Col. Kasim that her husband was a diabetic taking
maintenance medication, and asked that the Colonel relay to the persons holding
him the need to give him his medication.[38]
On February 11, 2008, TASK FORCE TAGITIS submitted two narrative
reports,[39] signed by the respondent, detailing her efforts to locate her husband
which led to her meetings with Col. Ancanan of the Philippine Army and Col.
Kasim of the PNP. In her narrative report concerning her meeting with Col. Ancanan,
the respondent recounted, viz:[40]
On November 11, 2007, we went to Zamboanga City with my friend Mrs.
Marydel Talbin. Our flight from Davao City is 9:00 oclock in the morning;
we arrived at Zamboanga Airport at around 10:00 oclock. We [were]
fetched by the two staffs of Col. Ancanan. We immediately proceed [sic] to
West Mindanao Command (WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan. He
interviewed me and got information about the personal background of
Engr. Morced N. Tagitis. After he gathered all information, he revealed to
us the contents of text messages they got from the cellular phone of the
subject Engr. Tagitis. One of the very important text messages of Engr.
Tagitis sent to his daughter Zaynah Tagitis was that she was not allowed to
answer any telephone calls in his condominium unit.
While we were there he did not tell us any information of the whereabouts
of Engr. Tagitis. After the said meeting with Col. Ancanan, he treated us as
guests to the city. His two staffs accompanied us to the mall to purchase
our plane ticket going back to Davao City on November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00 in the
morning, Col. Ancanan and I were discussing some points through phone
calls. He assured me that my husband is alive and hes last looked [sic] in
Talipapao, Jolo, Sulu. Yet I did not believe his given statements of the
whereabouts of my husband, because I contacted some of my friends who
have access to the groups of MILF, MNLF and ASG. I called up Col.

Ancanan several times begging to tell me the exact location of my

husband and who held him but he refused.
While I was in Jolo, Sulu on November 30, 2007, I called him up again
because the PNP, Jolo did not give me any information of the whereabouts
of my husband. Col. Ancanan told me that Sana ngayon alam mo na kung
saan ang kinalalagyan ng asawa mo. When I was in Zamboanga, I was
thinking of dropping by the office of Col. Ancanan, but I was hesitant to
pay him a visit for the reason that the Chief of Police of Jolo told me not to
contact any AFP officials and he promised me that he can solve the case
of my husband (Engr. Tagitis) within nine days.
I appreciate the effort of Col. Ancanan on trying to solve the case of my
husband Engr. Morced Tagitis, yet failed to do so.

The respondent also narrated her encounter with Col. Kasim, as follows: [41]
On November 7, 2007, I went to Land Bank of the Philippines, Bajada
Branch, Davao City to meet Mr. Rudy Salvador. I told him that my
husband, Engineer Morced Tagitis was presumed to be abducted in Jolo,
Sulu on October 30, 2007. I asked him a favor to contact his connections
in the military in Jolo, Sulu where the abduction of Engr. Tagitis took
place. Mr. Salvador immediately called up Camp Katitipan located in
Davao City looking for high-ranking official who can help me gather
reliable information behind the abduction of subject Engineer Tagitis.
On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive
Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr.
Salvador introduced me to Col. Kasim and we had a short
conversation. And he assured me that hell do the best he can to help me
find my husband.
After a few weeks, Mr. Salvador called me up informing me up informing
me that I am to go to Camp Katitipan to meet Col. Kasim for he has an
urgent, confidential information to reveal.
On November 24, 2007, we went back to Camp Katitipan with my three
friends. That was the time that Col. Kasim read to us the confidential
report that Engr. Tagitis was allegedly connected [with] different terrorist
[groups], one of which he mentioned in the report was OMAR PATIK and a
certain SANTOS - a Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for the
injured terrorists as a supplier. These are the two information that I can still

remember. It was written in a long bond paper with PNP Letterhead. It was
not shown to us, yet Col. Kasim was the one who read it for us.
He asked a favor to me that Please dont quote my Name! Because this is
a raw report. He assured me that my husband is alive and he is in the
custody of the military for custodial investigation.I told him to please take
care of my husband because he has aliments and he recently took insulin
for he is a diabetic patient.
In my petition for writ of amparo, I emphasized the information that I got
from Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs.
Talbin) to corroborate her testimony regarding her efforts to locate her husband, in
relation particularly with the information she received from Col. Kasim. Mrs. Talbin
testified that she was with the respondent when she went to Zamboanga to see Col.
Ancanan, and to Davao City at Camp Katitipan to meet Col. Kasim. [42]
In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told
them that there was a report and that he showed them a series of text messages
from Tagitis cellular phone, which showed that Tagitis and his daughter would meet
in Manila on October 30, 2007.[43]
She further narrated that sometime on November 24, 2007, she went with the
respondent together with two other companions, namely, Salvacion Serrano and
Mini Leong, to Camp Katitipan to talk to Col. Kasim. [44] The respondent asked Col.
Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim told them that Tagitis
was in good hands, although he was not certain whether he was with the PNP or
with the Armed Forces of the Philippines (AFP). She further recounted that based on
the report Col. Kasim read in their presence, Tagitis was under custodial
investigation because he was being charged with terrorism; Tagitis in fact had been
under surveillance since January 2007 up to the time he was abducted when he was
seen talking to Omar Patik and a certain Santos of Bulacan, a Balik Islam charged
with terrorism. Col. Kasim also told them that he could not give a copy of the report
because it was a raw report.[45] She also related that the Col. Kasim did not tell them
exactly where Tagitis was being kept, although he mentioned Talipapao,
Sulu.Prof., lalabas din yan.[50] Prof. Matli also emphasized that despite what his January 4,
2008 affidavit indicated,[51] he never told PS Supt. Pingay, or made any accusation,
that Tagitis took away money entrusted to him. [52] Prof. Matli confirmed, however, that
that he had received an e-mail report [53] from Nuraya Lackian of the Office of Muslim
Affairs in Manila that the IDB was seeking assistance of the office in locating the
funds of IDB scholars deposited in Tagitis personal account. [54]
On cross-examination by the respondents counsel, Prof. Matli testified that his
January 4, 2008 affidavit was already prepared when PS Supt. Pingay asked him to
sign it.[55]Prof Matli clarified that although he read the affidavit before signing it, he
was not so much aware of [its] contents.[56]

On February 11, 2008, the petitioners presented Col. Kasim to rebut material
portions of the respondents testimony, particularly the allegation that he had stated
that Tagitis was in the custody of either the military or the PNP.[57] Col. Kasim
categorically denied the statements made by the respondent in her narrative report,
specifically: (1) that Tagitis was seen carrying boxes of medicines as supplier for the
injured terrorists; (2) that Tagitis was under the custody of the military, since he
merely said to the respondent that your husband is in good hands and is
probably taken cared of by his armed abductors; and (3) that Tagitis was under
custodial investigation by the military, the PNP or the CIDG Zamboanga City. [58] Col.
Kasim emphasized that the informal letter he received from his informant in Sulu did
not indicate that Tagitis was in the custody of the CIDG. [59] He also stressed that the
information he provided to the respondent was merely a raw report sourced from
barangay intelligence that still needed confirmation and follow-up as to its veracity.[60]
On cross-examination, Col. Kasim testified that the information he gave the
respondent was given to him by his informant, who was a civilian asset, through a
letter which he considered as unofficial. [61] Col. Kasim stressed that the letter was
only meant for his consumption and not for reading by others. [62] He testified further
that he destroyed the letter right after he read it to the respondent and her
companions because it was not important to him and also because the information it
contained had no importance in relation with the abduction of Tagitis. [63] He explained
that he did not keep the letter because it did not contain any information regarding
the whereabouts of Tagitis and the person(s) responsible for his abduction. [64]
In the same hearing on February 11, 2008, the petitioners also presented Police
Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to
disprove the respondents allegation that Tagitis was in the custody of CIDGZamboanga City.[65] Col. Pante clarified that the CIDG was the investigative arm of
the PNP, and that the CIDG investigates and prosecutes all cases involving
violations in the Revised Penal Code particularly those considered as heinous
crimes.[66] Col. Pante further testified that the allegation that 9 RCIDU personnel
were involved in the disappearance of Tagitis was baseless, since they did not
conduct any operation in Jolo, Sulu before or after Tagitis reported disappearance.
[67]
Col. Pante added that the four (4) personnel assigned to the Sulu CIDT had no
capability to conduct any operation, since they were only assigned to investigate
matters and to monitor the terrorism situation. [68] He denied that his office conducted
any surveillance on Tagitis prior to the latters disappearance. [69] Col. Pante further
testified that his investigation of Tagitis disappearance was unsuccessful; the
investigation was still facing a blank wall on the whereabouts of Tagitis. [70]
THE CA RULING
On March 7, 2008, the CA issued its decision [71] confirming that the disappearance of
Tagitis was an enforced disappearance under the United Nations (UN) Declaration
on the Protection of All Persons from Enforced Disappearances. [72] The CA ruled that
when military intelligence pinpointed the investigative arm of the PNP (CIDG) to be
involved in the abduction, the missing-person case qualified as an enforced

disappearance. The conclusion that the CIDG was involved was based on the
respondents testimony, corroborated by her companion, Mrs. Talbin. The CA noted
that the information that the CIDG, as the police intelligence arm, was involved in
Tagitis abduction came from no less than the military an independent agency of
government. The CA thus greatly relied on the raw report from Col. Kasims asset,
pointing to the CIDGs involvement in Tagitis abduction.The CA held that raw reports
from an asset carried great weight in the intelligence world. It also labeled as
suspect Col. Kasims subsequent and belated retraction of his statement that the
military, the police, or the CIDG was involved in the abduction of Tagitis.
The CA characterized as too farfetched and unbelievable and a bedlam of
speculation police theories painting the disappearance as intentional on the part of
Tagitis. He had no previous brushes with the law or any record of overstepping the
bounds of any trust regarding money entrusted to him; no student of the IDB
scholarship program ever came forward to complain that he or she did not get his or
her stipend. The CA also found no basis for the police theory that Tagitis was trying
to escape from the clutches of his second wife, on the basis of the respondents
testimony that Tagitis was a Muslim who could have many wives under the Muslim
faith, and that there was no issue at all when the latter divorced his first wife in order
to marry the second. Finally, the CA also ruled out kidnapping for ransom by the Abu
Sayyaf or by the ARMM paramilitary as the cause for Tagitis disappearance, since
the respondent, the police and the military noted that there was no
acknowledgement of Tagitis abduction or demand for payment of ransom the
usualmodus operandi of these terrorist groups.
Based on these considerations, the CA thus extended the privilege of the writ to
Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane Pante, PNP
Chief Avelino I. Razon, TASK FORCE TAGITIS heads Gen. Joel Goltiao and Col.
Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert extraordinary
diligence and efforts to protect the life, liberty and security of Tagitis, with the
obligation to provide monthly reports of their actions to the CA. At the same time, the
CA dismissed the petition against the then respondents from the military, Lt. Gen
Alexander Yano and Gen. Ruben Rafael, based on the finding that it was PNPCIDG, not the military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA
denied the motion in its Resolution of April 9, 2008. [73]
THE PETITION
In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the petitioners
mainly dispute the sufficiency in form and substance of the Amparo petition filed
before the CA; the sufficiency of the legal remedies the respondent took before
petitioning for the writ; the finding that the rights to life, liberty and security of Tagitis
had been violated; the sufficiency of evidence supporting the conclusion that Tagitis
was abducted; the conclusion that the CIDG Zamboanga was responsible for the
abduction; and, generally, the ruling that the respondent discharged the burden of
proving the allegations of the petition by substantial evidence. [74]

THE COURTS RULING

We do not find the petition meritorious.

Sufficiency in Form and Substance

In questioning the sufficiency in form and substance of the respondents Amparo petition,
the

petitioners

contend

that

the

petition

violated

Section

5(c),

(d),

and

(e)

of

theAmparo Rule. Specifically, the petitioners allege that the respondent failed to:

1)

allege any act or omission the petitioners committed in violation of Tagitis rights to
life, liberty and security;

2)

allege in a complete manner how Tagitis was abducted, the persons responsible for
his disappearance, and the respondents source of information;

3)

allege that the abduction was committed at the petitioners instructions or with their
consent;

4)

implead the members of CIDG regional office in Zamboanga alleged to have

custody over her husband;

5)

attach the affidavits of witnesses to support her accusations;

6)

allege any action or inaction attributable to the petitioners in the performance of their
duties in the investigation of Tagitis disappearance; and

7)

specify what legally available efforts she took to determine the fate or whereabouts
of her husband.

A petition for the Writ of Amparo shall be signed and verified and shall allege,
among others (in terms of the portions the petitioners cite): [75]

(c) The right to life, liberty and security of the aggrieved party
violated or threatened with violation by an unlawful act or omission
of the respondent, and how such threat or violation is committed
with the attendant circumstances detailed in supporting affidavits;

(d) The investigation conducted, if any, specifying the names,

personal circumstances, and addresses of the investigating
authority or individuals, as well as the manner and conduct of the
investigation, together with any report;

(e) The actions and recourses taken by the petitioner to determine

the fate or whereabouts of the aggrieved party and the identity of the
person responsible for the threat, act or omission; and

The framers of the Amparo Rule never intended Section 5(c) to be complete in every
detail in stating the threatened or actual violation of a victims rights. As in any other initiatory
pleading, the pleader must of course state the ultimate facts constituting the cause of action,
omitting the evidentiary details.[76] In an Amparo petition, however, this requirement must be
read in light of the nature and purpose of the proceeding, which addresses a situation of
uncertainty; the petitioner may not be able to describe with certainty how the victim exactly
disappeared, or who actually acted to kidnap, abduct or arrest him or her, or where the victim is
detained, because these information may purposely be hidden or covered up by those who
caused the disappearance. In this type of situation, to require the level of specificity, detail and
precision that the petitioners apparently want to read into the Amparo Rule is to make this Rule

a token gesture of judicial concern for violations of the constitutional rights to life, liberty and
security.

To read the Rules of Court requirement on pleadings while addressing the

unique Amparo situation, the test in reading the petition should be to determine whether it
contains the details available to the petitioner under the circumstances, while presenting a
cause of action showing a violation of the victims rights to life, liberty and security through State
or private party action. The petition should likewise be read in its totality, rather than in terms of
its isolated component parts, to determine if the required elements namely, of the
disappearance, the State or private action, and the actual or threatened violations of the rights
to life, liberty or security are present.

In the present case, the petition amply recites in its paragraphs 4 to 11 the
circumstances under which Tagitis suddenly dropped out of sight after engaging in normal
activities, and thereafter was nowhere to be found despite efforts to locate him. The petition
alleged, too, under its paragraph 7, in relation to paragraphs 15 and 16, that according to
reliable information, police operatives were the perpetrators of the abduction. It also clearly
alleged how Tagitis rights to life, liberty and security were violated when he was forcibly taken
and boarded on a motor vehicle by a couple of burly men believed to be police intelligence
operatives, and then taken into custody by the respondents police intelligence operatives since
October 30, 2007, specifically by the CIDG, PNP Zamboanga City, x x x held against his will in
an earnest attempt of the police to involve and connect [him] with different terrorist groups.[77]

These allegations, in our view, properly pleaded ultimate facts within the pleaders
knowledge about Tagitis disappearance, the participation by agents of the State in this
disappearance, the failure of the State to release Tagitis or to provide sufficient information

about his whereabouts, as well as the actual violation of his right to liberty. Thus, the petition
cannot be faulted for any failure in its statement of a cause of action.

If a defect can at all be attributed to the petition, this defect is its lack of supporting
affidavit, as required by Section 5(c) of the Amparo Rule. Owing to the summary nature of the
proceedings for the writ and to facilitate the resolution of the petition, the Amparo Rule
incorporated the requirement for supporting affidavits, with the annotation that these can be
used as the affiants direct testimony.[78] This requirement, however, should not be read as an
absolute one that necessarily leads to the dismissal of the petition if not strictly followed. Where,
as in this case, the petitioner has substantially complied with the requirement by submitting
a verified petition sufficiently detailing the facts relied upon, the strict need for the sworn
statement that an affidavit represents is essentially fulfilled. We note that the failure to attach the
required affidavits was fully cured when the respondent and her witness (Mrs. Talbin) personally
testified in the CA hearings held on January 7 and 17 and February 18, 2008 to swear to and
flesh out the allegations of the petition. Thus, even on this point, the petition cannot be faulted.

Section 5(d) of the Amparo Rule requires that prior investigation of an alleged
disappearance must have been made, specifying the manner and results of the
investigation.Effectively, this requirement seeks to establish at the earliest opportunity the level
of diligence the public authorities undertook in relation with the reported disappearance.[79]
We reject the petitioners argument that the respondents petition did not comply with the
Section 5(d) requirements of the Amparo Rule, as the petition specifies in its paragraph 11 that
Kunnong and his companions immediately reported Tagitis disappearance to the police
authorities in Jolo, Sulu as soon as they were relatively certain that he indeed had
disappeared. The police, however, gave them the ready answer that Tagitis could have been
abducted by the Abu Sayyaf group or other anti-government groups. The respondent also
alleged in paragraphs 17 and 18 of her petition that she filed a complaint with the PNP Police

Station in Cotobato and in Jolo, but she was told of an intriguing tale by the police that her
husband was having a good time with another woman. The disappearance was alleged to have
been reported, too, to no less than the Governor of the ARMM, followed by the respondents
personal inquiries that yielded the factual bases for her petition.[80]

These allegations, to our mind, sufficiently specify that reports have been made to the
police authorities, and that investigations should have followed. That the petition did not state
the manner and results of the investigation that the Amparo Rule requires, but rather generally
stated the inaction of the police, their failure to perform their duty to investigate, or at the very
least, their reported failed efforts, should not be a reflection on the completeness of the petition.
To require the respondent to elaborately specify the names, personal circumstances, and
addresses of the investigating authority, as well the manner and conduct of the investigation is
an overly strict interpretation of Section 5(d), given the respondents frustrations in securing an
investigation with meaningful results. Under these circumstances, we are more than satisfied
that the allegations of the petition on the investigations undertaken are sufficiently complete for
purposes of bringing the petition forward.

Section 5(e) is in the Amparo Rule to prevent the use of a petition that otherwise is not
supported by sufficient allegations to constitute a proper cause of action as a means to fish for
evidence.[81] The petitioners contend that the respondents petition did not specify what legally
available efforts were taken by the respondent, and that there was an undue haste in the filing
of the petition when, instead of cooperating with authorities, the respondent immediately
invoked the Courts intervention.

We do not see the respondents petition as the petitioners view it.

Section 5(e) merely requires that the Amparo petitioner (the respondent in the present
case) allege the actions and recourses taken to determine the fate or whereabouts of the
aggrieved party and the identity of the person responsible for the threat, act or omission. The
following allegations of the respondents petition duly outlined the actions she had taken and the
frustrations she encountered, thus compelling her to file her petition.

xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension
house to take his early lunch but while out on the street, a couple of burly
men believed to be police intelligence operatives, forcibly took him and
boarded the latter on a motor vehicle then sped away without the
knowledge of his student, Arsimin Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of
another IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong, including his friends and companions in Jolo, exerted
efforts in trying to locate the whereabouts of Engr. Tagitis and when he
reported the matter to the police authorities in Jolo, he was immediately
given a ready answer that Engr. Tagitis could [have been] abducted by the
Abu Sayyaf group and other groups known to be fighting against the
government;
12. Being scared with these suggestions and insinuations of the police officers,
Kunnong reported the matter to the [respondent](wife of Engr. Tagitis) by
phone and other responsible officers and coordinators of the IDB
Scholarship Programme in the Philippines who alerted the office of the
Governor of ARMM who was then preparing to attend the OIC meeting in
Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, approached some of her coemployees with the Land Bank in Digos branch, Digos City, Davao del Sur,
who likewise sought help from some of their friends in the military who
could help them find/locate the whereabouts of her husband;

xxxx

15. According to reliable information received by the [respondent], subject Engr.

Tagitis is in the custody of police intelligence operatives, specifically with
the CIDG, PNP Zamboanga City, being held against his will in an earnest
attempt of the police to involve and connect Engr. Tagitis with the different
terrorist groups;

xxxx
17. [The respondent] filed her complaint with the PNP Police Station at the
ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their
help to find her husband, but [the respondents] request and pleadings
failed to produce any positive results
xxxx
20. Lately, [respondent] was again advised by one of the [petitioners] to go to the
ARMM Police Headquarters again in Cotobato City and also to the
different Police Headquarters including the police headquarters in Davao
City, in Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all
these places have been visited by the [respondent] in search for her
husband, which entailed expenses for her trips to these places thereby
resorting her to borrowings and beggings [sic] for financial help from
friends and relatives only to try complying to the different suggestions of
these police officers, despite of which, her efforts produced no positive
results up to the present time;

xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but
to no avail, and under the circumstances, [respondent] has no other plain,
speedy and adequate remedy to protect and get the release of subject Engr.
Morced Tagitis from the illegal clutches of [the petitioners], their intelligence
operatives and the like which are in total violation of the subjects human and
constitutional rights, except the issuance of a WRIT OF AMPARO.

Based on these considerations, we rule that the respondents petition for the Writ
of Amparo is sufficient in form and substance and that the Court of Appeals had every reason to
proceed with its consideration of the case.

The Desaparecidos

The present case is one of first impression in the use and application of the Rule on the
Writ of Amparo in an enforced disappearance situation. For a deeper appreciation of the
application of this Rule to an enforced disappearance situation, a brief look at the historical
context of the writ and enforced disappearances would be very helpful.

The phenomenon of enforced disappearance arising from State action first attracted
notice in Adolf Hitlers Nact und Nebel Erlass or Night and Fog Decree of December 7, 1941.
[82]

The Third Reichs Night and Fog Program, a State policy, was directed at persons in occupied

territories endangering German security; they were transported secretly to Germany where they
disappeared without a trace. In order to maximize the desired intimidating effect, the policy
prohibited government officials from providing information about the fate of these targeted
persons.[83]

In the mid-1970s, the phenomenon of enforced disappearances resurfaced, shocking

and outraging the world when individuals, numbering anywhere from 6,000 to 24,000, were
reported to have disappeared during the military regime in Argentina. Enforced disappearances
spread in Latin America, and the issue became an international concern when the world noted
its widespread and systematic use by State security forces in that continent under Operation
Condor[84] and during the Dirty War[85] in the 1970s and 1980s. The escalation of the practice
saw political activists secretly arrested, tortured, and killed as part of governments counter-

insurgency campaigns. As this form of political brutality became routine elsewhere in the
continent, the Latin American media standardized the term disappearance to describe the
phenomenon. The victims of enforced disappearances were called the desaparecidos,[86] which
literally means the disappeared ones.[87] In general, there are three different kinds of
disappearance cases:

1)

those of people arrested without witnesses or without positive identification

of the arresting agents and are never found again;

2)

those of prisoners who are usually arrested without an appropriate warrant

and held in complete isolation for weeks or months while their families are
unable to discover their whereabouts and the military authorities deny having
them in custody until they eventually reappear in one detention center or
another; and

3)

those of victims of salvaging who have disappeared until their lifeless

bodies are later discovered.[88]

In the Philippines, enforced disappearances generally fall within the first two categories,
[89]

and 855 cases were recorded during the period of martial law from 1972 until 1986. Of this

number, 595 remained missing, 132 surfaced alive and 127 were found dead. During former
President Corazon C. Aquinos term, 820 people were reported to have disappeared and of
these, 612 cases were documented. Of this number, 407 remain missing, 108 surfaced alive
and 97 were found dead. The number of enforced disappearances dropped during former
President Fidel V. Ramos term when only 87 cases were reported, while the three-year term of
former President Joseph E. Estrada yielded 58 reported cases. KARAPATAN, a local nongovernmental organization, reports that as of March 31, 2008, the records show that there were
a total of 193 victims of enforced disappearance under incumbent President Gloria M. Arroyos

administration. The Commission on Human Rights records show a total of 636 verified cases of
enforced disappearances from 1985 to 1993. Of this number, 406 remained missing, 92
surfaced alive, 62 were found dead, and 76 still have undetermined status. [90] Currently, the
United Nations Working Group on Enforced or Involuntary Disappearance[91] reports 619
outstanding cases of enforced or involuntary disappearances covering the period December 1,
2007 to November 30, 2008.[92]

Enforced Disappearances
Under Philippine Law

The Amparo Rule expressly provides that the writ shall cover extralegal killings and
enforced disappearances or threats thereof.[93] We note that although the writ specifically covers
enforced disappearances, this concept is neither defined nor penalized in this jurisdiction. The
records of the Supreme Court Committee on the Revision of Rules (Committee) reveal that the
drafters of the Amparo Rule initially considered providing an elemental definition of the concept
of enforced disappearance:[94]

JUSTICE MARTINEZ: I believe that first and foremost we should come up or

formulate a specific definition [for] extrajudicial killings and enforced
disappearances. From that definition, then we can proceed to formulate the rules,
definite rules concerning the same.

CHIEF JUSTICE PUNO: As things stand, there is no law penalizing

extrajudicial killings and enforced disappearances so initially also we have
to [come up with] the nature of these extrajudicial killings and enforced
disappearances [to be covered by the Rule] because our concept of killings
and disappearances will define the jurisdiction of the courts. So well have to
agree among ourselves about the nature of killings and disappearances for
instance, in other jurisdictions, the rules only cover state actors. That is an
element incorporated in their concept of extrajudicial killings and enforced

disappearances. In other jurisdictions, the concept includes acts and omissions

not only of state actors but also of non state actors. Well, more specifically in the
case of the Philippines for instance, should these rules include the killings, the
disappearances which may be authored by let us say, the NPAs or the leftist
organizations and others. So, again we need to define the nature of the
extrajudicial killings and enforced disappearances that will be covered by these
rules. [Emphasis supplied] [95]

In the end, the Committee took cognizance of several bills filed in the House of
Representatives[96] and in the Senate[97] on extrajudicial killings and enforced disappearances,
and resolved to do away with a clear textual definition of these terms in the Rule. The
Committee instead focused on the nature and scope of the concerns within its power to
address and provided the appropriate remedy therefor, mindful that an elemental definition may
intrude into the ongoing legislative efforts.[98]

As the law now stands, extra-judicial killings and enforced disappearances in this
jurisdiction are not crimes penalized separately from the component criminal acts undertaken to
carry out these killings and enforced disappearances and are now penalized under the Revised
Penal Code and special laws.[99] The simple reason is that the Legislature has not spoken on the
matter; the determination of what acts are criminal and what the corresponding penalty these
criminal acts should carry are matters of substantive law that only the Legislature has the power
to enact under the countrys constitutional scheme and power structure.

Even without the benefit of directly applicable substantive laws on extra-judicial killings
and enforced disappearances, however, the Supreme Court is not powerless to act under its
own constitutional mandate to promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice and procedure in all courts, [100]since extrajudicial killings
and enforced disappearances, by their nature and purpose, constitute State or private party

violation of the constitutional rights of individuals to life, liberty and security. Although the Courts
power is strictly procedural and as such does not diminish, increase or modify substantive
rights, the legal protection that the Court can provide can be very meaningful through the
procedures it sets in addressing extrajudicial killings and enforced disappearances. The Court,
through its procedural rules, can set theprocedural standards and thereby directly compel the
public authorities to act on actual or threatened violations of constitutional rights. To state the
obvious, judicial intervention can make a difference even if only procedurally in a situation when
the very same investigating public authorities may have had a hand in the threatened or actual
violations of constitutional rights.

Lest this Court intervention be misunderstood, we clarify once again that we do not rule
on any issue of criminal culpability for the extrajudicial killing or enforced disappearance. This is
an issue that requires criminal action before our criminal courts based on our existing penal
laws. Our intervention is in determining whether an enforced disappearance has taken place
and who is responsible or accountable for this disappearance, and to define and impose the
appropriate remedies to address it. The burden for the public authorities to discharge in these
situations, under the Rule on the Writ of Amparo, is twofold. The first is to ensure that all efforts
at disclosure and investigation are undertaken under pain of indirect contempt from this Court
when governmental efforts are less than what the individual situations require. The second is to
address the disappearance, so that the life of the victim is preserved and his or her liberty and
security restored. In these senses, our orders and directives relative to the writ are continuing
efforts that are not truly terminated until the extrajudicial killing or enforced disappearance is
fully addressed by the complete determination of the fate and the whereabouts of the victim, by
the production of the disappeared person and the restoration of his or her liberty and security,
and, in the proper case, by the commencement of criminal action against the guilty parties.

Enforced Disappearance

Under International Law

From the International Law perspective, involuntary or enforced disappearance is

considered a flagrant violation of human rights. [101] It does not only violate the right to life, liberty
and security of the desaparecido; it affects their families as well through the denial of their right
to information regarding the circumstances of the disappeared family member. Thus, enforced
disappearances have been said to be a double form of torture, with doubly paralyzing impact for
the victims, as they are kept ignorant of their own fates, while family members are deprived of
knowing the whereabouts of their detained loved ones and suffer as well the serious economic
hardship and poverty that in most cases follow the disappearance of the household
breadwinner.[102]

The UN General Assembly first considered the issue of Disappeared Persons in

December 1978 under Resolution 33/173. The Resolution expressed the General Assemblys
deep concern arising from reports from various parts of the world relating to enforced or
involuntary disappearances, and requested the UN Commission on Human Rights to consider
the issue of enforced disappearances with a view to making appropriate recommendations.[103]

In 1992, in response to the reality that the insidious practice of enforced disappearance
had become a global phenomenon, the UN General Assembly adopted theDeclaration on the
Protection of All Persons from Enforced Disappearance (Declaration).[104] This Declaration,
for the first time, provided in its third preambular clause a working description of enforced
disappearance, as follows:

Deeply concerned that in many countries, often in a persistent manner,

enforced disappearances occur, in the sense that persons are arrested,
detained or abducted against their will or otherwise deprived of their liberty

by officials of different branches or levels of Government, or by organized

groups or private individuals acting on behalf of, or with the support, direct
or indirect, consent or acquiescence of the Government, followed by a
refusal to disclose the fate or whereabouts of the persons concerned or a
refusal to acknowledge the deprivation of their liberty, which places such
persons outside the protection of the law. [Emphasis supplied]

Fourteen years after (or on December 20, 2006), the UN General Assembly adopted the
International Convention for the Protection of All Persons from Enforced Disappearance
(Convention).[105] The Convention was opened for signature in Paris, France on February 6,
2007.[106] Article 2 of the Convention defined enforced disappearance as follows:

For the purposes of this Convention, enforced disappearance is

considered to be the arrest, detention, abduction or any other form of deprivation
of liberty by agents of the State or by persons or groups of persons acting with
the authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside the
protection of the law. [Emphasis supplied]

The Convention is the first universal human rights instrument to assert that there is a
right not to be subject to enforced disappearance [107] and that this right is non-derogable.
[108]
It provides that no one shall be subjected to enforced disappearance under any
circumstances, be it a state of war, internal political instability, or any other public
emergency. It obliges State Parties to codify enforced disappearance as an offense
punishable with appropriate penalties under their criminal law. [109] It also recognizes the
right of relatives of the disappeared persons and of the society as a whole to know the
truth on the fate and whereabouts of the disappeared and on the progress and results of
the investigation.[110] Lastly, it classifies enforced disappearance as a continuing offense,
such that statutes of limitations shall not apply until the fate and whereabouts of the
victim are established.[111]

Binding Effect of UN
Action on the Philippines

To date, the Philippines has neither signed nor ratified the Convention, so that the country is not
yet committed to enact any law penalizing enforced disappearance as a crime.The absence of a
specific penal law, however, is not a stumbling block for action from this Court, as heretofore
mentioned; underlying every enforced disappearance is a violation of the constitutional rights to
life, liberty and security that the Supreme Court is mandated by the Constitution to protect
through its rule-making powers.

Separately from the Constitution (but still pursuant to its terms), the Court is guided, in
acting on Amparo cases, by the reality that the Philippines is a member of the UN, bound by its
Charter and by the various conventions we signed and ratified, particularly the conventions
touching on humans rights. Under the UN Charter, the Philippines pledged to promote universal
respect for, and observance of, human rights and fundamental freedoms for all without
distinctions as to race, sex, language or religion. [112]Although no universal agreement has been
reached on the precise extent of the human rights and fundamental freedoms guaranteed to all
by the Charter,[113] it was the UN itself that issued the Declaration on enforced disappearance,
and this Declaration states:[114]

Any act of enforced disappearance is an offence to dignity. It is condemned as

a denial of the purposes of the Charter of the United Nations and as a grave
and flagrant violation of human rights and fundamental freedoms
proclaimed in the Universal Declaration of Human Rights and reaffirmed and
developed in international instruments in this field. [Emphasis supplied]

As a matter of human right and fundamental freedom and as a policy matter made in a UN
Declaration, the ban on enforced disappearance cannot but have its effects on the country,
given our own adherence to generally accepted principles of international law as part of the law
of the land.[115]

In the recent case of Pharmaceutical and Health Care Association of the Philippines v.
Duque III,[116] we held that:

Under the 1987 Constitution, international law can become part of the
sphere of domestic law either by transformation or incorporation. The
transformation method requires that an international law be transformed into a
domestic law through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law. [Emphasis
supplied]

We characterized generally accepted principles of international law as norms of general or

customary international law that are binding on all states. We held further:[117]

[G]enerally accepted principles of international law, by virtue of the

incorporation clause of the Constitution, form part of the laws of the land even if
they do not derive from treaty obligations. The classical formulation in
international law sees those customary rules accepted as binding result
from the combination [of] two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element
known as the opinion juris sive necessitates (opinion as to law or necessity).
Implicit in the latter element is abelief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it. [Emphasis in the
original]

The most widely accepted statement of sources of international law today is Article 38(1)
of the Statute of the International Court of Justice, which provides that the Court shall apply
international custom, as evidence of a general practice accepted as law.[118] The material
sources of custom include State practice, State legislation, international and national judicial
decisions, recitals in treaties and other international instruments, a pattern of treaties in the
same form, the practice of international organs, and resolutions relating to legal questions in the
UN General Assembly.[119] Sometimes referred to as evidence of international law,[120] these
sources identify the substance and content of the obligations of States and are indicative of the
State practice and opinio juris requirements of international law.[121] We note the following in
these respects:

First, barely two years from the adoption of the Declaration, the Organization of
American States (OAS) General Assembly adopted the Inter-American Convention on Enforced
Disappearance of Persons in June 1994.[122] State parties undertook under this Convention
not to practice, permit, or tolerate the forced disappearance of persons, even in states of
emergency or suspension of individual guarantees.[123] One of the key provisions includes the
States obligation to enact the crime of forced disappearance in their respective national criminal
laws and to establish jurisdiction over such cases when the crime was committed within their
jurisdiction, when the victim is a national of that State, and when the alleged criminal is within its
territory and it does not proceed to extradite him, which can be interpreted as establishing
universal jurisdiction among the parties to the Inter-American Convention. [124] At present,
Colombia, Guatemala, Paraguay, Peru and Venezuela have enacted separate laws in
accordance with the Inter-American Convention and have defined activities involving enforced
disappearance to be criminal.[125]

Second, in Europe, the European Convention on Human Rights has no explicit provision
dealing with the protection against enforced disappearance. The European Court of Human
Rights (ECHR), however, has applied the Convention in a way that provides ample protection

for the underlying rights affected by enforced disappearance through the Conventions Article 2
on the right to life; Article 3 on the prohibition of torture; Article 5 on the right to liberty and
security; Article 6, paragraph 1 on the right to a fair trial; and Article 13 on the right to an
effective remedy. A leading example demonstrating the protection afforded by the European
Convention is Kurt v. Turkey,[126] where the ECHR found a violation of the right to liberty and
security of the disappeared person when the applicants son disappeared after being taken into
custody by Turkish forces in the Kurdish village of Agilli in November 1993. It further found the
applicant (the disappeared persons mother) to be a victim of a violation of Article 3, as a result
of the silence of the authorities and the inadequate character of the investigations
undertaken. The ECHR also saw the lack of any meaningful investigation by the State as a
violation of Article 13.[127]

Third, in the United States, the status of the prohibition on enforced disappearance as
part of customary international law is recognized in the most recent edition ofRestatement of the
Law: The Third,[128] which provides that [a] State violates international law if, as a matter of State
policy, it practices, encourages, or condones (3) the murder or causing the disappearance of
individuals.[129] We significantly note that in a related matter that finds close identification with
enforced disappearance the matter of torture the United States Court of Appeals for the Second
Circuit Court held in Filartiga v. Pena-Irala[130] that the prohibition on torture had attained the
status of customary international law. The court further elaborated on the significance of UN
declarations, as follows:

These U.N. declarations are significant because they specify with great
precision the obligations of member nations under the Charter. Since their
adoption, "(m)embers can no longer contend that they do not know what human
rights they promised in the Charter to promote. Moreover, a U.N. Declaration is,
according to one authoritative definition, "a formal and solemn instrument,
suitable for rare occasions when principles of great and lasting importance are
being enunciated. Accordingly, it has been observed that the Universal
Declaration of Human Rights "no longer fits into the dichotomy of binding treaty
against non-binding pronouncement,' but is rather an authoritative statement of

the international community." Thus, a Declaration creates an expectation of

adherence, and "insofar as the expectation is gradually justified by State practice,
a declaration may by custom become recognized as laying down rules binding
upon the States." Indeed, several commentators have concluded that the
Universal Declaration has become, in toto, a part of binding, customary
international law. [Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the International
Convention on Civil and Political Rights (ICCPR), to which the Philippines is both a signatory
and a State Party, the UN Human Rights Committee, under the Office of the High Commissioner
for Human Rights, has stated that the act of enforced disappearance violates Articles 6 (right to
life), 7 (prohibition on torture, cruel, inhuman or degrading treatment or punishment) and 9 (right
to liberty and security of the person) of the ICCPR, and the act may also amount to a crime
against humanity.[131]

Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the

International Criminal Court (ICC) also covers enforced disappearances insofar as they
are defined as crimes against humanity,[132] i.e., crimes committed as part of a
widespread or systematic attack against any civilian population, with knowledge of the
attack. While more than 100 countries have ratified the Rome Statute, [133] the Philippines
is still merely a signatory and has not yet ratified it. We note that Article 7(1) of the
Rome Statute has been incorporated in the statutes of other international and hybrid
tribunals, including Sierra Leone Special Court, the Special Panels for Serious Crimes
in Timor-Leste, and the Extraordinary Chambers in the Courts of Cambodia. [134] In
addition, the implementing legislation of State Parties to the Rome Statute of the ICC
has given rise to a number of national criminal provisions also covering enforced
disappearance.[135]

While the Philippines is not yet formally bound by the terms of the Convention on
enforced disappearance (or by the specific terms of the Rome Statute) and has not formally
declared enforced disappearance as a specific crime, the above recital shows that enforced
disappearance as a State practice has been repudiated by the international community,

so that the ban on it is now a generally accepted principle of international law, which we
should consider a part of the law of the land, and which we should act upon to the extent
already allowed under our laws and the international conventions that bind us.

The following civil or political rights under the Universal Declaration of Human
Rights, the ICCPR and the International Convention on Economic, Social and Cultural
Rights (ICESR) may be infringed in the course of a disappearance: [136]

1) the right to recognition as a person before the law;

2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or
degrading treatment or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective
compensation;

remedy, including reparation and

8) the right to know the truth regarding the circumstances of a

disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]

Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein
recognized
are
violated shall
have
an
effective
remedy,
notwithstanding that the violation has been committed by persons
acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his
right thereto determined by competent judicial, administrative or
legislative authorities, or by any other competent authority provided for
by the legal system of the State, and to develop the possibilities of judicial
remedy;
(c) To ensure that the competent authorities shall enforce such remedies
when granted. [Emphasis supplied]

In General Comment No. 31, the UN Human Rights Committee opined that the right to
an effective remedy under Article 2 of the ICCPR includes the obligation of the State to
investigate ICCPR violations promptly, thoroughly, and effectively, viz:[137]

15. Article 2, paragraph 3, requires that in addition to effective protection

of Covenant rights, States Parties must ensure that individuals also
have accessible and effective remedies to vindicate those rights The
Committee attaches importance to States Parties' establishing appropriate
judicial and administrative mechanisms for addressing claims of rights
violations under domestic law Administrative mechanisms are
particularly required to give effect to the general obligation to
investigate allegations of violations promptly, thoroughly and
effectivelythrough independent and impartial bodies. A failure by a
State Party to investigate allegations of violations could in and of itself give
rise to a separate breach of the Covenant. Cessation of an ongoing
violation is an essential element of the right to an effective remedy.
[Emphasis supplied]

The UN Human Rights Committee further stated in the same General Comment
No. 31 that failure to investigate as well as failure to bring to justice the perpetrators of
ICCPR violations could in and of itself give rise to a separate breach of the Covenant,
thus:[138]

18. Where the investigations referred to in paragraph 15 reveal violations

of certain Covenant rights, States Parties must ensure that those
responsible are brought to justice. As with failure to investigate,
failure to bring to justice perpetrators of such violations could in and
of itself give rise to a separate breach of the Covenant. These
obligations arise notably in respect of those violations recognized as

criminal under either domestic or international law, such as torture

and similar cruel, inhuman and degrading treatment (article 7), summary
and arbitrary killing (article 6) and enforced disappearance (articles 7
and 9 and, frequently, 6). Indeed, the problem of impunity for these
violations, a matter of sustained concern by the Committee, may well be
an important contributing element in the recurrence of the violations.
When committed as part of a widespread or systematic attack on a civilian
population, these violations of the Covenant are crimes against humanity
(see Rome Statute of the International Criminal Court, article 7).
[Emphasis supplied]

In Secretary of National Defense v. Manalo,[139] this Court, in ruling that the right
to security of persons is a guarantee of the protection of ones right by the government,
held that:

The right to security of person in this third sense is a corollary of the policy
that the State guarantees full respect for human rights under Article II,
Section 11 of the 1987 Constitution. As the government is the chief
guarantor of order and security, the Constitutional guarantee of the rights
to life, liberty and security of person is rendered ineffective if government
does not affordprotection to these rights especially when they are under
threat. Protection includes conducting effective investigations,
organization of the government apparatus to extend protection to
victims of extralegal killings or enforced disappearances (or threats
thereof) and/or their families, and bringing offenders to the bar of
justice. The Inter-American Court of Human Rights stressed the
importance of investigation in the Velasquez Rodriguez Case, viz:
(The duty to investigate) must be undertaken in
a serious manner and not as a mere formality
preordained to be ineffective. An investigation must have
an objective and be assumed by the State as its own legal
duty, not as a step taken by private interests that
depends upon the initiative of the victim or his family or
upon their offer of proof, without an effective search for the
truth by the government. [Emphasis supplied]

Manalo significantly cited Kurt v. Turkey,[140] where the ECHR interpreted the right to
security not only as a prohibition on the State against arbitrary deprivation of liberty, but
also as the imposition of a positive duty to afford protection to the right to liberty. The
Court notably quoted the following ECHR ruling:
[A]ny deprivation of liberty must not only have been effected in conformity
with the substantive and procedural rules of national law but must equally
be in keeping with the very purpose of Article 5, namely to protect the
individual from arbitrariness... Having assumed control over that individual,
it is incumbent on the authorities to account for his or her
whereabouts. For this reason, Article 5 must be seen as requiring the
authorities to take effective measures to safeguard against the risk
of disappearance and to conduct a prompt effective investigation
into an arguable claim that a person has been taken into custody and
has not been seen since. [Emphasis supplied]

These rulings effectively serve as the backdrop for the Rule on the Writ of Amparo,
which the Court made effective on October 24, 2007. Although the Amparo Rule still has gaps
waiting to be filled through substantive law, as evidenced primarily by the lack of a concrete
definition of enforced disappearance, the materials cited above, among others, provide
ample guidance and standards on how, through the medium of the Amparo Rule, the
Court can provide remedies and protect the constitutional rights to life, liberty and
security that underlie every enforced disappearance.

Evidentiary Difficulties Posed

by the Unique Nature of an
Enforced Disappearance

Before going into the issue of whether the respondent has discharged the burden of
proving the allegations of the petition for the Writ of Amparo by the degree of proof required by
the Amparo Rule, we shall discuss briefly the unique evidentiary difficulties presented by
enforced disappearance cases; these difficulties form part of the setting that the implementation
of the Amparo Rule shall encounter.

These difficulties largely arise because the State itself the party whose involvement is
alleged investigates enforced disappearances. Past experiences in other jurisdictions show that
the evidentiary difficulties are generally threefold.

First, there may be a deliberate concealment of the identities of the direct

perpetrators.[141] Experts note that abductors are well organized, armed and usually members
of the military or police forces, thus:

The victim is generally arrested by the security forces or by persons acting

under some form of governmental authority. In many countries the units
that plan, implement and execute the program are generally specialized,
highly-secret bodies within the armed or security forces. They are
generally directed through a separate, clandestine chain of command, but
they have the necessary credentials to avoid or prevent any interference
by the "legal" police forces. These authorities take their victims to secret
detention centers where they subject them to interrogation and torture
without fear of judicial or other controls. [142]

In addition, there are usually no witnesses to the crime; if there are, these witnesses are
usually afraid to speak out publicly or to testify on the disappearance out of fear for their own
lives.[143] We have had occasion to note this difficulty in Secretary of Defense v. Manalo[144] when

we acknowledged that where powerful military officers are implicated, the hesitation of
witnesses to surface and testify against them comes as no surprise.

Second, deliberate
concealment
of
pertinent
evidence
of
the
disappearance is a distinct possibility; the central piece of evidence in an enforced
disappearance i.e., thecorpus delicti or the victims body is usually concealed to
effectively thwart the start of any investigation or the progress of one that may have
begun.[145] The problem for the victims family is the States virtual monopoly of access to
pertinent evidence. The Inter-American Court of Human Rights (IACHR) observed in the
landmark case of Velasquez Rodriguez[146] that inherent to the practice of enforced
disappearance is the deliberate use of the States power to destroy the pertinent
evidence. The IACHR described the concealment as a clear attempt by the State to
commit the perfect crime.[147]

Third is the element of denial; in many cases, the State authorities deliberately
deny that the enforced disappearance ever occurred. [148] Deniability is central to the
policy of enforced disappearances, as the absence of any proven disappearance makes
it easier to escape the application of legal standards ensuring the victims human rights.
[149]
Experience shows that government officials typically respond to requests for
information about desaparecidos by saying that they are not aware of any
disappearance, that the missing people may have fled the country, or that their names
have merely been invented.[150]

These considerations are alive in our minds, as these are the difficulties we confront, in
one form or another, in our consideration of this case.

Evidence and Burden of Proof in

Enforced Disappearances Cases

Sections 13, 17 and 18 of the Amparo Rule define the nature of

an Amparo proceeding and the degree and burden of proof the parties to the case
carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall
be summary. However, the court, justice or judge may call for a
preliminary conference to simplify the issues and determine the possibility
of obtaining stipulations and admissions from the parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence Required. The
parties shall establish their claims by substantial evidence.
The respondent who is a private individual must prove that ordinary
diligence as required by applicable laws, rules and regulations was
observed in the performance of duty.
The respondent who is a public official or employee must prove that
extraordinary diligence as required by applicable laws, rules and
regulations was observed in the performance of duty.
The respondent public official or employee cannot invoke the
presumption that official duty has been regularly performed or evade
responsibility or liability.
Section 18. Judgment. If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and
such reliefs as may be proper and appropriate;otherwise, the privilege
shall be denied. [Emphasis supplied]

These characteristics namely, of being summary and the use of substantial evidence as
the required level of proof (in contrast to the usual preponderance of evidence or proof beyond
reasonable doubt in court proceedings) reveal the clear intent of the framers of the Amparo Rule
to have the equivalent of an administrative proceeding, albeit judicially conducted, in
addressing Amparo situations. The standard of diligence required the duty of public officials and
employees to observe extraordinary diligence point, too, to the extraordinary measures
expected in the protection of constitutional rights and in the consequent handling and
investigation of extra-judicial killings and enforced disappearance cases.

Thus, in these proceedings, the Amparo petitioner needs only to properly comply with
the substance and form requirements of a Writ of Amparo petition, as discussed above, and
prove the allegations by substantial evidence. Once a rebuttable case has been proven, the
respondents must then respond and prove their defenses based on the standard of diligence
required. The rebuttable case, of course, must show that an enforced disappearance took place
under circumstances showing a violation of the victims constitutional rights to life, liberty or
security, and the failure on the part of the investigating authorities to appropriately respond.

The landmark case of Ang Tibay v. Court of Industrial Relations [151] provided the
Court its first opportunity to define the substantial evidence required to arrive at a valid
decision in administrative proceedings. To directly quote Ang Tibay:

Substantial evidence is more than a mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. [citations omitted] The statute provides that the rules of
evidence prevailing in courts of law and equity shall not be controlling. The
obvious purpose of this and similar provisions is to free administrative boards
from the compulsion of technical rules so that the mere admission of matter
which would be deemed incompetent in judicial proceedings would not invalidate
the administrative order. [citations omitted] But this assurance of a desirable
flexibility in administrative procedure does not go so far as to justify orders
without a basis in evidence having rational probative force. [Emphasis supplied]

In Secretary of Defense v. Manalo, [152] which was the Courts first petition for a Writ
of Amparo, we recognized that the full and exhaustive proceedings that the substantial evidence
standard

regularly

requires

do

of Amparo proceedings. We said:

not

need

to

apply

due

to

the

summary

nature

The remedy [of the writ of amparo] provides rapid judicial relief as it
partakes of a summary proceeding that requires only substantial evidence to
make the appropriate reliefs available to the petitioner; it is not an action to
determine criminal guilt requiring proof beyond reasonable doubt, or liability for
damages
requiring
preponderance
of
evidence, or
administrative
responsibility requiring substantial evidence that will require full and
exhaustive proceedings. [Emphasis supplied]
Not to be forgotten in considering the evidentiary aspects of Amparo petitions are the
unique difficulties presented by the nature of enforced disappearances, heretofore discussed,
which difficulties this Court must frontally meet if the Amparo Rule is to be given a chance to
achieve its objectives. These evidentiary difficulties compel the Court to adopt standards
appropriate and responsive to the circumstances, without transgressing the due process
requirements that underlie every proceeding.

In the seminal case of Velasquez Rodriguez,[153] the IACHR faced with a lack of direct
evidence that the government of Honduras was involved in Velasquez Rodriguez disappearance
adopted a relaxed and informal evidentiary standard, and established the rule that presumes
governmental responsibility for a disappearance if it can be proven that the government carries
out a general practice of enforced disappearances and the specific case can be linked to that
practice.[154] The IACHR took note of the realistic fact that enforced disappearances could be
proven only through circumstantial or indirect evidence or by logical inference; otherwise, it was
impossible to prove that an individual had been made to disappear. It held:

130. The practice of international and domestic courts shows that direct
evidence, whether testimonial or documentary, is not the only type of
evidence that may be legitimately considered in reaching a
decision. Circumstantial evidence, indicia, and presumptions may be
considered, so long as they lead to conclusions consistent with the
facts.

131. Circumstantial or presumptive evidence is especially important

in allegations of disappearances, because this type of repression is
characterized by an attempt to suppress all information about the
kidnapping or the whereabouts and fate of the victim. [Emphasis
supplied]
In concluding that the disappearance of Manfredo Velsquez (Manfredo) was
carried out by agents who acted under cover of public authority, the IACHR relied on
circumstantial evidence including the hearsay testimony of Zenaida Velsquez, the
victims sister, who described Manfredos kidnapping on the basis of conversations she
had with witnesses who saw Manfredo kidnapped by men in civilian clothes in broad
daylight. She also told the Court that a former Honduran military official had announced
that Manfredo was kidnapped by a special military squadron acting under orders of the
Chief of the Armed Forces. [155] The IACHR likewise considered the hearsay testimony of
a second witness who asserted that he had been told by a Honduran military officer
about the disappearance, and a third witness who testified that he had spoken in prison
to a man who identified himself as Manfredo.[156]

Velasquez stresses the lesson that flexibility is necessary under the unique
circumstances that enforced disappearance cases pose to the courts; to have an
effective remedy, the standard of evidence must be responsive to the evidentiary
difficulties faced. On the one hand, we cannot be arbitrary in the admission and
appreciation of evidence, as arbitrariness entails violation of rights and cannot be used
as an effective counter-measure; we only compound the problem if a wrong is
addressed by the commission of another wrong. On the other hand, we cannot be very
strict in our evidentiary rules and cannot consider evidence the way we do in the usual
criminal and civil cases; precisely, the proceedings before us are administrative in
nature where, as a rule, technical rules of evidence are not strictly observed. Thus,
while we must follow the substantial evidence rule, we must observe flexibility in
considering the evidence we shall take into account.

The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced
in their totality, and to consider any evidence otherwise inadmissible under our usual
rules to be admissible if it is consistent with the admissible evidence adduced. In other
words, we reduce our rules to the most basic test of reason i.e., to the relevance

of the evidence to the issue at hand and its consistency with all other pieces of
adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies
this basic minimum test.

We note in this regard that the use of flexibility in the consideration of evidence is not at all novel
in the Philippine legal system. In child abuse cases, Section 28 of the Rule on Examination of a
Child Witness[157] is expressly recognized as an exception to the hearsay rule. This Rule allows
the admission of the hearsay testimony of a child describing any act or attempted act of sexual
abuse in any criminal or non-criminal proceeding, subject to certain prerequisites and the right
of cross-examination by the adverse party. The admission of the statement is determined by the
court in light of specified subjective and objective considerations that provide sufficient indicia of
reliability of the child witness.[158] These requisites for admission find their counterpart in the
present case under the above-described conditions for the exercise of flexibility in the
consideration of evidence, including hearsay evidence, in extrajudicial killings and enforced
disappearance cases.

Assessment of the Evidence

The threshold question for our resolution is: was there an enforced disappearance within
the meaning of this term under the UN Declaration we have cited?

The Convention defines enforced disappearance as the arrest, detention, abduction or

any other form of deprivation of liberty by agents of the State or by persons or groups of
persons acting with the authorization, support or acquiescence of the State, followed by a
refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts
of the disappeared person, which place such a person outside the protection of the law.

[159]

Under this definition, the elements that constitute enforced disappearance are essentially

fourfold:[160]

(a) arrest, detention, abduction or any form of deprivation of liberty;

(b) carried out by agents of the State or persons or groups of persons

acting with the authorization, support or acquiescence of the State;
(c)

followed by a refusal to acknowledge the detention, or a concealment of the

fate of the disappeared person; and

(d) placement of the disappeared person outside the protection of the law.
[Emphasis supplied]

We find no direct evidence indicating how the victim actually disappeared. The direct
evidence at hand only shows that Tagitis went out of the ASY Pension House after depositing
his room key with the hotel desk and was never seen nor heard of again. The undisputed
conclusion, however, from all concerned the petitioner, Tagitis colleagues and even the police
authorities is that Tagistis disappeared under mysterious circumstances and was never seen
again. The respondent injected the causal element in her petition and testimony, as we shall
discuss below.

We likewise find no direct evidence showing that operatives of PNP CIDG Zamboanga
abducted or arrested Tagitis. If at all, only the respondents allegation that Tagistis was under
CIDG Zamboanga custody stands on record, but it is not supported by any other evidence,
direct or circumstantial.

In her direct testimony, the respondent pointed to two sources of information as her
bases for her allegation that Tagistis had been placed under government custody (in contrast
with CIDG Zamboanga custody). The first was an unnamed friend in Zamboanga (later
identified as Col. Ancanan), who occupied a high position in the military and who allegedly
mentioned that Tagitis was in good hands. Nothing came out of this claim, as both the
respondent herself and her witness, Mrs. Talbin, failed to establish that Col. Ancanan gave them
any information that Tagitis was in government custody. Col. Ancanan, for his part, admitted the
meeting with the respondent but denied giving her any information about the disappearance.

The more specific and productive source of information was Col. Kasim, whom the
respondent, together with her witness Mrs. Talbin, met in Camp Katitipan in Davao City. To
quote the relevant portions of the respondents testimony:

Q: Were you able to speak to other military officials regarding the

whereabouts of your husband particularly those in charge of any
records or investigation?

A: I went to Camp Katitipan in Davao City. Then one military officer, Col.
Casim, told me that my husband is being abducted
[sic] because he is under custodial investigation because he is
allegedly parang liason ng J.I., sir.

Q: What is J.I.?

A: Jemaah Islamiah, sir.

Q: Was there any information that was read to you during one of those
visits of yours in that Camp?

A: Col. Casim did not furnish me a copy of his report because he said
those reports are highly confidential, sir.

Q: Was it read to you then even though you were not furnished a
copy?

A: Yes, sir. In front of us, my friends.

Q: And what was the content of that highly confidential report?

A: Those alleged activities of Engineer Tagitis, sir.[161] [Emphasis supplied]

She confirmed this testimony in her cross-examination:

Q: You also mentioned that you went to Camp Katitipan in Davao City?

A: Yes, maam.

Q: And a certain Col. Kasim told you that your husband was
abducted and under custodial investigation?

A: Yes, maam.

Q: And you mentioned that he showed you a report?

A: Yes, maam.

Q: Were you able to read the contents of that report?

A: He did not furnish me a copy of those [sic] report because those

[sic] were highly confidential. That is a military report, maam.

Q: But you were able to read the contents?

A: No. But he read it in front of us, my friends, maam.

Q: How many were you when you went to see Col. Kasim?

A: There were three of us, maam.

Q: Who were your companions?

A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao
Oriental, maam.[162]
xxxx
Q: When you were told that your husband is in good hands, what was your
reaction and what did you do?

A: May binasa kasi sya that my husband has a parang meeting with
other people na parang mga terorista na mga tao. Tapos at the
end of the report is [sic] under custodial investigation.So I told
him Colonel, my husband is sick. He is diabetic at nagmemaintain
yun ng gamot. Pakisabi lang sa naghohold sa asawa ko na bigyan
siya ng gamot, maam.[163]

xxxx
Q: You mentioned that you received information that Engineer Tagitis is
being held by the CIDG in Zamboanga, did you go to CIDG
Zamboanga to verify that information?

A: I did not go to CIDG Zamboanga. I went to Camp Karingal

instead. Enough na yun na effort ko because I know that they would
deny it, maam.[164]

On February 11, 2008, the respondent presented Mrs. Talbin to corroborate her
testimony that her husband was abducted and held under custodial investigation by the
PNP-CIDG Zamboanga City, viz:

Q: You said that you went to Camp Katitipan in Davao City sometime
November 24, 2007, who was with you when you went there?

A: Mary Jean Tagitis, sir.

Q: Only the two of you?

A: No. We have some other companions. We were four at that time, sir.

Q: Who were they?

A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.

Q: Were you able to talk, see some other officials at Camp Katitipan during
that time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.

Q: Were you able to talk to him?

A: Yes, sir.

Q: The four of you?

A: Yes, sir.

Q: What information did you get from Col. Kasim during that time?

A: The first time we met with [him] I asked him if he knew of the exact
location, if he can furnish us the location of Engr. Tagitis. And he
was reading this report. He told us that Engr. Tagitis is in good
hands. He is with the military, but he is not certain whether he
is with the AFP or PNP. He has this serious case. He was
charged of terrorism because he was under surveillance from
January 2007 up to the time that he was abducted. He told us
that he was under custodial investigation. As Ive said earlier,
he was seen under surveillance from January. He was seen
talking to Omar Patik, a certain Santos of Bulacan who is also
a Balik Islam and charged with terrorism. He was seen carrying
boxes of medicines.Then we asked him how long will he be in
custodial investigation. He said until we can get some
information. But he also told us that he cannot give us that report
because it was a raw report. It was not official, sir.

Q: You said that he was reading a report, was that report in document
form, in a piece of paper or was it in the computer or what?

A: As far as I can see it, sir, it is written in white bond paper. I dont know if
it was computerized but Im certain that it was typewritten. Im not
sure if it used computer, fax or what, sir.

Q: When he was reading it to you, was he reading it line by line or he was

reading in a summary form?

A: Sometimes he was glancing to the report and talking to us, sir.[165]

xxxx
Q: Were you informed as to the place where he was being kept during that
time?

A: He did not tell us where he [Tagitis] was being kept. But he

mentioned this Talipapao, Sulu, sir.

Q: After that incident, what did you do if any?

A: We just left and as Ive mentioned, we just waited because that raw
information that he was reading to us [sic] after the custodial
investigation, Engineer Tagitis will be released. [Emphasis supplied]
[166]

Col. Kasim never denied that he met with the respondent and her friends, and that he
provided them information based on the input of an unnamed asset. He simply claimed in his
testimony that the informal letter he received from his informant in Sulu did not indicate that
Tagitis was in the custody of the CIDG. He also stressed that the information he provided the
respondent was merely a raw report from barangay intelligence that still needed confirmation
and follow up as to its veracity.[167]

To be sure, the respondents and Mrs. Talbins testimonies were far from perfect, as the
petitioners pointed out. The respondent mistakenly characterized Col. Kasim as a military officer
who told her that her husband is being abducted because he is under custodial investigation
because he is allegedly parang liason ng J.I. The petitioners also noted that Mrs. Talbins
testimony imputing certain statements to Sr. Supt. Kasim that Engr. Tagitis is with the military,
but he is not certain whether it is the PNP or AFP is not worthy of belief, since Sr. Supt. Kasim is
a high ranking police officer who would certainly know that the PNP is not part of the military.

Upon deeper consideration of these inconsistencies, however, what appears clear to us

is that the petitioners never really steadfastly disputed or presented evidence to refute the
credibility of the respondent and her witness, Mrs. Talbin. The inconsistencies the petitioners
point out relate, more than anything else, to details that should not affect the credibility of the
respondent and Mrs. Talbin; the inconsistencies are not on material points. [168] We note, for
example, that these witnesses are lay people in so far as military and police matters are
concerned, and confusion between the police and the military is not unusual. As a rule, minor
inconsistencies such as these indicate truthfulness rather than prevarication [169]and only tend to
strengthen their probative value, in contrast to testimonies from various witnesses dovetailing on
every detail; the latter cannot but generate suspicion that the material circumstances they
testified to were integral parts of a well thought of and prefabricated story.[170]

Based on these considerations and the unique evidentiary situation in enforced

disappearance cases, we hold it duly established that Col. Kasim informed the
respondent and her friends, based on the informants letter, that Tagitis, reputedly a
liaison for the JI and who had been under surveillance since January 2007, was in good
hands and under custodial investigation for complicity with the JI after he was seen
talking to one Omar Patik and a certain Santos of Bulacan, a Balik Islam charged with
terrorism. The respondents and Mrs. Talbins testimonies cannot simply be defeated by Col.
Kasims plain denial and his claim that he had destroyed his informants letter, the critical piece of
evidence that supports or negates the parties conflicting claims. Col. Kasims admitted
destruction of this letter effectively, a suppression of this evidence raises the presumption that
the letter, if produced, would be proof of what the respondent claimed. [171] For brevity, we shall
call the evidence of what Col. Kasim reported to the respondent to be the Kasim evidence.

Given this evidence, our next step is to decide whether we can accept this evidence, in
lieu of direct evidence, as proof that the disappearance of Tagitis was due to action with
government participation, knowledge or consent and that he was held for custodial
investigation. We note in this regard that Col. Kasim was never quoted to have said that the
custodial investigation was by the CIDG Zamboanga. The Kasim evidence only implies
government intervention through the use of the term custodial investigation, and does not at all
point to CIDG Zamboanga as Tagitis custodian.

Strictly speaking, we are faced here with a classic case of hearsay evidence i.e.,
evidence whose probative value is not based on the personal knowledge of the witnesses (the
respondent, Mrs. Talbin and Col. Kasim himself) but on the knowledge of some other person not
on the witness stand (the informant).[172]

To say that this piece of evidence is incompetent and inadmissible evidence of what it
substantively states is to acknowledge as the petitioners effectively suggest that in the absence
of any direct evidence, we should simply dismiss the petition. To our mind, an immediate
dismissal for this reason is no different from a statement that the Amparo Rule despite its terms
is ineffective, as it cannot allow for the special evidentiary difficulties that are unavoidably
present in Amparo situations, particularly in extrajudicial killings and enforced disappearances.
The Amparo Rule was not promulgated with this intent or with the intent to make it a token
gesture of concern for constitutional rights. It was promulgated to provide effective and timely
remedies, using and profiting from local and international experiences in extrajudicial killings
and enforced disappearances, as the situation may require. Consequently, we have no choice
but to meet the evidentiary difficulties inherent in enforced disappearances with the flexibility
that these difficulties demand.

To give full meaning to our Constitution and the rights it protects, we hold that, as
in Velasquez, we should at least take a close look at the available evidence to determine the
correct import of every piece of evidence even of those usually considered inadmissible under
the general rules of evidence taking into account the surrounding circumstances and the test of
reason that we can use as basic minimum admissibility requirement. In the present case, we
should at least determine whether the Kasim evidence before us is relevant and meaningful to
the disappearance of Tagistis and reasonably consistent with other evidence in the case.

The evidence about Tagitis personal circumstances surrounded him with an air of
mystery. He was reputedly a consultant of the World Bank and a Senior Honorary Counselor for
the IDB who attended a seminar in Zamboanga and thereafter proceded to Jolo for an overnight
stay, indicated by his request to Kunnong for the purchase of a return ticket to Zamboanga the
day after he arrived in Jolo. Nothing in the records indicates the purpose of his overnight
sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on informed the Jolo police that Tagitis
may have taken funds given to him in trust for IDB scholars. Prof Matli later on stated that he
never accused Tagitis of taking away money held in trust, although he confirmed that the IDB
was seeking assistance in locating funds of IDB scholars deposited in Tagitis personal
account. Other than these pieces of evidence, no other information exists in the records relating
to the personal circumstances of Tagitis.

The actual disappearance of Tagitis is as murky as his personal circumstances. While

the Amparo petition recited that he was taken away by burly men believed to be police
intelligence operatives, no evidence whatsoever was introduced to support this allegation. Thus,
the available direct evidence is that Tagitis was last seen at 12.30 p.m. of October 30, 2007 the
day he arrived in Jolo and was never seen again.

The Kasim evidence assumes critical materiality given the dearth of direct evidence on
the above aspects of the case, as it supplies the gaps that were never looked into and
clarified by police investigation. It is the evidence, too, that colors a simple missing person
report into an enforced disappearance case, as it injects the element of participation by agents
of the State and thus brings into question how the State reacted to the disappearance.

Denials on the part of the police authorities, and frustration on the part of the respondent,
characterize the attempts to locate Tagitis. Initially in Jolo, the police informed Kunnong that
Tagitis could have been taken by the Abu Sayyaf or other groups fighting the government. No
evidence was ever offered on whether there was active Jolo police investigation and how and
why the Jolo police arrived at this conclusion. The respondents own inquiry in Jolo yielded the
answer that he was not missing but was with another woman somewhere. Again, no evidence
exists that this explanation was arrived at based on an investigation. As already related above,
the inquiry with Col. Ancanan in Zamboanga yielded ambivalent results not useful for evidentiary
purposes. Thus, it was only the inquiry from Col. Kasim that yielded positive results. Col.
Kasims story, however, confirmed only the fact of his custodial investigation (and, impliedly, his
arrest or abduction), without identifying his abductor/s or the party holding him in custody. The
more significant part of Col. Kasims story is that the abduction came after Tagitis was seen
talking with Omar Patik and a certain Santos of Bulacan, a Balik Islam charged with terrorism.
Mrs. Talbin mentioned, too, that Tagitis was being held at Talipapao, Sulu. None of the police
agencies participating in the investigation ever pursued these leads.Notably, TASK FORCE
TAGITIS to which this information was relayed did not appear to have lifted a finger to pursue
these aspects of the case.

More denials were manifested in the Returns on the writ to the CA made by the
petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the directives he sent to the
ARMM Regional Director and the Regional Chief of the CIDG on Tagitis, and these reports
merely reiterated the open-ended initial report of the disappearance. The CIDG directed a

search in all of its divisions with negative results. These, to the PNP Chief, constituted the
exhaustion of all possible efforts. PNP-CIDG Chief General Edgardo M. Doromal, for his part,
also reported negative results after searching all divisions and departments [of the CIDG] for a
person named Engr. Morced N. Tagitis . . . and after a diligent and thorough research, records
show that no such person is being detained in the CIDG or any of its department or
divisions. PNP-PACER Chief PS Supt. Leonardo A. Espina and PNP PRO ARMM Regional
Director PC Superintendent Joel R. Goltiao did no better in their affidavits-returns, as they
essentially reported the results of their directives to their units to search for Tagitis.

The extent to which the police authorities acted was fully tested when the CA
constituted TASK FORCE TAGITIS, with specific directives on what to do. The negative results
reflected in the Returns on the writ were again replicated during the three hearings the CA
scheduled. Aside from the previously mentioned retraction that Prof. Matli made to correct his
accusation that Tagitis took money held in trust for students, PS Supt. Ajirim reiterated in his
testimony that the CIDG consistently denied any knowledge or complicity in any abduction and
said that there was no basis to conclude that the CIDG or any police unit had anything to do
with the disappearance of Tagitis; he likewise considered it premature to conclude that Tagitis
simply ran away with the money in his custody. As already noted above, the TASK
FORCE notably did not pursue any investigation about the personal circumstances of Tagitis,
his background in relation to the IDB and the background and activities of this Bank itself, and
the reported sighting of Tagistis with terrorists and his alleged custody in Talipapao, Sulu. No
attempt appears to have ever been made to look into the alleged IDB funds that Tagitis held in
trust, or to tap any of the assets who are indispensable in investigations of this nature. These
omissions and negative results were aggravated by the CA findings that it was only as late as
January 28, 2008 or three months after the disappearance that the police authorities requested
for clear pictures of Tagitis. Col. Kasim could not attend the trial because his subpoena was not
served, despite the fact that he was designated as Ajirims replacement in the latters last
post. Thus, Col. Kasim was not then questioned. No investigation even an internal one

appeared to have been made to inquire into the identity of Col. Kasims asset and what he
indeed wrote.

We glean from all these pieces of evidence and developments a consistency in the
governments denial of any complicity in the disappearance of Tagitis, disrupted only by
the report made by Col. Kasim to the respondent at Camp Katitipan. Even Col. Kasim,
however, eventually denied that he ever made the disclosure that Tagitis was under custodial
investigation for complicity in terrorism. Another distinctive trait that runs through these
developments is the governments dismissive approach to the disappearance, starting
from the initial response by the Jolo police to Kunnongs initial reports of the disappearance, to
the responses made to the respondent when she herself reported and inquired about her
husbands disappearance, and even at TASK FORCE TAGITIS itself.

As the CA found through TASK FORCE TAGITIS, the investigation was at best
haphazard since the authorities were looking for a man whose picture they initially did not even
secure. The returns and reports made to the CA fared no better, as the CIDG efforts themselves
were confined to searching for custodial records of Tagitis in their various departments and
divisions. To point out the obvious, if the abduction of Tagitis was a black operation because it
was unrecorded or officially unauthorized, no record of custody would ever appear in the CIDG
records; Tagitis, too, would not be detained in the usual police or CIDG detention places. In
sum, none of the reports on record contains any meaningful results or details on the
depth and extent of the investigation made. To be sure, reports of top police officials
indicating the personnel and units they directed to investigate can never constitute exhaustive
and meaningful investigation, or equal detailed investigative reports of the activities undertaken
to search for Tagitis. Indisputably, the police authorities from the very beginning failed to come
up to the extraordinary diligence that the Amparo Rule requires.

CONCLUSIONS AND THE AMPARO REMEDY

Based on these considerations, we conclude that Col. Kasims disclosure, made in an

unguarded

moment,

unequivocally

point

to

some

government

complicity

in

the

disappearance. The consistent but unfounded denials and the haphazard investigations cannot
but point to this conclusion. For why would the government and its officials engage in their
chorus of concealment if the intent had not been to deny what they already knew of the
disappearance? Would not an in-depth and thorough investigation that at least credibly
determined the fate of Tagitis be a feather in the governments cap under the circumstances of
the disappearance? From this perspective, the evidence and developments, particularly the
Kasim evidence, already establish a concrete case of enforced disappearance that
the Amparo Rule covers. From the prism of the UN Declaration, heretofore cited and quoted,
[173]

the evidence at hand and the developments in this case confirm the fact of the enforced

disappearance and government complicity, under a background of consistent and unfounded

government denials and haphazard handling. The disappearance as well effectively placed
Tagitis outside the protection of the law a situation that will subsist unless this Court acts.

This kind of fact situation and the conclusion reached are not without precedent in
international enforced disappearance rulings. While the facts are not exactly the same, the facts
of this case run very close to those of Timurtas v. Turkey,[174] a case decided by ECHR. The
European tribunal in that case acted on the basis of the photocopy of a post-operation report in
finding that Abdulvahap Timurtas (Abdulvahap) was abducted and later detained by agents
(gendarmes) of the government of Turkey. The victim's father in this case brought a claim
against Turkey for numerous violations of the European Convention, including the right to life
(Article 2) and the rights to liberty and security of a person (Article 5). The applicant contended
that on August 14, 1993, gendarmes apprehended his son, Abdulvahap for being a leader of the

Kurdish Workers Party (PKK) in the Silopi region. The petition was filed in southeast Turkey
nearly six and one half years after the apprehension. According to the father, gendarmes first
detained Abdulvahap and then transferred him to another detainment facility. Although there
was no eyewitness evidence of the apprehension or subsequent detainment, the
applicant presented evidence corroborating his version of events, including a photocopy
of a post-operation report signed by the commander of gendarme operations in Silopi,
Turkey. The report included a description of Abdulvahap's arrest and the result of a subsequent
interrogation during detention where he was accused of being a leader of the PKK in the Silopi
region. On this basis, Turkey was held responsible for Abdulvahaps enforced disappearance.

Following the lead of this Turkish experience - adjusted to the Philippine legal
setting and the Amparo remedy this Court has established, as applied to the unique facts
and developments of this case we believe and so hold that the government in general,
through the PNP and the PNP-CIDG, and in particular, the Chiefs of these organizations
together with Col. Kasim, should be held fully accountable for the enforced
disappearance of Tagitis.

The PNP and CIDG are accountable because Section 24 of Republic Act No. 6975,
otherwise known as the PNP Law,[175] specifies the PNP as the governmental officewith the
mandate to investigate and prevent crimes, effect the arrest of criminal offenders, bring
offenders to justice and assist in their prosecution. The PNP-CIDG, as Col. Jose Volpane Pante
(then Chief of CIDG Region 9) testified, is the investigative arm of the PNP and is mandated to
investigate and prosecute all cases involving violations of the Revised Penal Code, particularly
those considered as heinous crimes.[176] Under the PNP organizational structure, the PNP-CIDG
is tasked to investigate all major crimes involving violations of the Revised Penal Code and
operates against organized crime groups, unless the President assigns the case exclusively to
the National Bureau of Investigation (NBI).[177] No indication exists in this case showing that the

President ever directly intervened by assigning the investigation of Tagitis disappearance

exclusively to the NBI.

Given their mandates, the PNP and PNP-CIDG officials and members were the ones
who were remiss in their duties when the government completely failed to exercise the
extral'>To fully enforce the Amparo remedy, we refer this case back to the CA for appropriate
proceedings directed at the monitoring of the PNP and the PNP-CIDG investigations and
actions, and the validation of their results through hearings the CA may deem appropriate to
conduct. For purposes of these investigations, the PNP/PNP-CIDG shall initially present to the
CA a plan of action for further investigation, periodically reporting the detailed results of its
investigation to the CA for its consideration and action.On behalf of this Court, the CA shall pass
upon: the need for the PNP and the PNP-CIDG to make disclosures of matters known to them
as indicated in this Decision and as further CA hearings may indicate; the petitioners
submissions; the sufficiency of their investigative efforts; and submit to this Court a quarterly
report containing its actions and recommendations, copy furnished the petitioners and the
respondent, with the first report due at the end of the first quarter counted from the finality of
this Decision. The PNP and the PNP-CIDG shall have one (1) full year to undertake their
investigation. The CA shall submit its full report for the consideration of this Court at the end of
the 4th quarter counted from the finality of this Decision.

WHEREFORE, premises considered, we DENY the petitioners petition for review

on certiorari for lack of merit, and AFFIRM the decision of the Court of Appeals dated March 7,
2008 under the following terms:

a.

Recognition that the disappearance of Engineer Morced N. Tagitis is an

enforced disappearance covered by the Rule on the Writ of Amparo;

b.

Without any specific pronouncement on exact authorship and responsibility,

declaring the government (through the PNP and the PNP-CIDG) and Colonel
Julasirim Ahadin Kasim accountable for the enforced disappearance of Engineer
Morced N. Tagitis;

c.

Confirmation of the validity of the Writ of Amparo the Court of Appeals

issued;

d.

Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its
Chief, directly responsible for the disclosure of material facts known to the
government and to their offices regarding the disappearance of Engineer Morced
N. Tagitis, and for the conduct of proper investigations using extraordinary
diligence, with the obligation to show investigation results acceptable to this
Court;

e.

Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and

holding him accountable with the obligation to disclose information known to him
and to his assets in relation with the enforced disappearance of Engineer Morced
N. Tagitis;

f.

Referring this case back to the Court of Appeals for appropriate

proceedings directed at the monitoring of the PNP and PNP-CIDG investigations,
actions and the validation of their results; the PNP and the PNP-CIDG shall
initially present to the Court of Appeals a plan of action for further investigation,
periodically reporting their results to the Court of Appeals for consideration and
action;

g.

Requiring the Court of Appeals to submit to this Court a quarterly report with
its recommendations, copy furnished the incumbent PNP and PNP-CIDG Chiefs
as petitioners and the respondent, with the first report due at the end of the first
quarter counted from the finality of this Decision;

h.

The PNP and the PNP-CIDG shall have one (1) full year to undertake their
investigations; the Court of Appeals shall submit its full report for the
consideration of this Court at the end of the 4 th quarter counted from the finality of
this Decision;

These directives and those of the Court of Appeals made pursuant to this Decision shall
be given to, and shall be directly enforceable against, whoever may be the incumbent Chiefs of
the Philippine National Police and its Criminal Investigation and Detection Group, under pain of
contempt from this Court when the initiatives and efforts at disclosure and investigation
constitute less than the extraordinary diligence that the Rule on the Writ of Amparo and the
circumstances of this case demand. Given the unique nature of Amparo cases and their varying
attendant circumstances, these directives particularly, the referral back to and monitoring by the
CA are specific to this case and are not standard remedies that can be applied to
every Amparo situation.

The dismissal of the Amparo petition with respect to General Alexander Yano,
Commanding General, Philippine Army, and General Ruben Rafael, Chief, Anti-Terrorism Task
Force Comet, Zamboanga City, is hereby AFFIRMED.

SO ORDERED.

Republic
SUPREME
Manila

of

THIRD DIVISION
G.R. No. 153911

December 10, 2004

the

Philippines
COURT

MELANIO
MALLARI
vs.
PEOPLE OF THE PHILIPPINES, respondent.

LIBERATO, petitioner,

DECISION

PANGANIBAN, J.:
To warrant conviction based on circumstantial evidence, the totality of the
circumstances must eliminate beyond reasonable doubt the possibility of innocence;
otherwise, the accused must be acquitted.
The Case
Before us is a Petition for Review1 on Certiorari under Rule 45 in relation to Rule 125 of
the Rules of Court, seeking "to reverse, set aside, nullify and/or modify" the December
18, 2001 Decision2 of the Court of Appeals (CA) in CA-GR CR No. 18051. The
dispositive portion of that Decision states:
"WHEREFORE, foregoing premises considered, the decision appealed from
is MODIFIED. Accused-appellants Melanio Mallari and Zaldy Bontia, as well as
Leonardo Bontia are found guilty of Attempted Murder punishable under Article
248 in relation to Article 6 of the Revised Penal Code for which they
areSENTENCED to four (4) years and two (2) months of prision correccional, as
minimum, to ten (10) years ofprision mayor, as maximum. The award with
respect to damages and costs stand."3
In its May 14, 2002 Resolution, 4 the CA denied petitioners Motion for Reconsideration
of the assailed Decision.
The Facts
Version of the Prosecution
The factual background of the case, as related by the Court of Appeals 5 based on
prosecution evidence, is as follows:
"The records show that private complainant Erlinda Boyose was a teacher at the
Bustamante High School, Davao City from 1977 up to 1989. At the start, she had
a good working relationship with the school principal, appellant Melanio Mallari.

However, their relationship turned sour when she began to question appellant
Mallari on alleged unaccounted school funds.
"On June 29, 1989 at about 9:00 oclock in the morning, while Boyose was at the
Guidance Office, a man approached her and asked if he can still enroll his
nephew. As enrollment was already closed, she advised the man to see Mallari,
who is the school principal.
"Thereafter, Boyose went to her classroom. About twenty minutes later, the man
approached her again. Meeting him by the door, she asked the man if he was
able to talk to Mallari. The man answered that the principal was not in his office.
So, she advised the man to just return the following day.
"In the afternoon, Boyose rode on a jeepney bound for Sasa, Davao. She
observed that the man who talked to her in the morning was also in the same
jeepney. She then inquired from him if he was able to talk to the principal
regarding the enrollment of his nephew but the man just ignored her.
"While they were near Km. 13, Panacan, Davao City, the said man drew and
pointed a gun at Boyoses temple. Boyose heard two successive clicking sounds
of the gun but it did not fire. She heard the man utter in the Cebuano dialect,
Unsa man ni, dili man ni moboto, meaning Whats this, this will not fire. She
then grabbed the gun and grappled for its possession. But she failed. Eventually,
she was able to get out of the jeepney and ran away but the man followed her
and shot her repeatedly.
"Boyose was hit in the lower mouth and at her back. She shouted for help. A man
helped her and brought her to the San Pedro Hospital where she was treated
and confined.
"Policeman Remo Pagal of the Sasa Police Station was one of those who went to
the crime scene on June 29, 1989 to investigate. But nothing came out of it. He
was only able to get the description of the gunman the following day when he
interviewed the victim at the hospital.
"The police investigators were able to get the lead when a certain Andy
Magdadaro went to the Sasa Police Station and told Policeman Pagal that he
knew something about the shooting of Erlinda Boyose. He told the said police
investigator that he was asked by one Edwin Amparado to kill Boyose but the
plan was not carried out. He pointed to accused-appellant Zaldy Bontia as the
man who hired Amparado to look for a triggerman.
"Thus, Edwin Amparado was picked up by the police. While in the police station
where he was brought, he told the police investigators that in one occasion, he
went to the house of appellant Mallari and the latter asked him to kill Boyose who
used to be his neighbor at Doa Pilar Village but the same did not push thru. He

later offered this job to Andy Magdadaro who was his neighbor in Agdao. They
talked about the plan to kill Boyose and Magdadaro was only waiting for his gosignal. At the police station, he executed an affidavit regarding the offer of Mallari
to kill Boyose.
"On August 1, 1989, at around 3:00 p.m., Pagal together with other policemen
from the Sasa Police Station arrested appellant Zaldy Bontia near the house of
accused-appellant Mallari. Zaldy allegedly admitted participation in the incident
and implicated his brother Leonardo Bontia as the gunman. The police lost no
time in going to Asuncion, Davao del Norte to arrest Leonardo Bontia.
"Leonardo Bontia was brought to the Sasa Police Station at about 2:00 p.m. of
August 2, 1989. Later that day, a police line-up was conducted and Boyose
identified accused Leonardo Bontia as the gunman. She likewise identified
accused-appellant Zaldy Bontia to be the constant companion and protg of
accused-appellant Mallari.
"When the custodial investigation was about to start, the Bontia brothers were
apprised by police investigators Anastacio Naive of their rights under the
Constitution. When asked by Naive if they had a lawyer to assist them, they told
him that they had none. Naive then stopped the investigation and called the PAO
office for assistance. At around 5:00 p.m. on that day, Atty. Jonathan Jocum,** a
PAO lawyer arrived. Pfc. Naive then asked the Bontia brothers if they wanted to
be represented by Atty. Jocum and they said they are agreeable.
"During the custodial investigation, Leonardo Bontia admitted to be the gunman.
He pointed to appellant Mallari as the one who hired him to kill Boyose. On the
[other] hand, Zaldy Bontia admitted to have been hired by Mallari to look for a
gunman to kill Erlinda Boyose and that he was the one who recommended to
Mallari his brother Leonardo Bontia to do the job for a fee.
"Melanio Mallari, Leonardo Bontia and Zaldy Bontia, were accordingly charged
by Asst. City Prosecutor Jose Emmanuel M. Castillo of the crime of Frustrated
Murder, in an Information alleging
That on or about June 29, 1989, in the City of Davao, Philippines and
within the jurisdiction of this Honorable Court, the above-mentioned
accused Melanio Mallari, directly interested in the death of Erlinda P.
Boyose, conspiring, confederating and helping one another, accused
Melanio Mallari induced his co-accused Leonardo Bontia and Zaldy
Bontia, the latter convincing his brother Leonardo Bontia of the plan to kill
said Erlinda P. Boyose by giving price and/or offering a reward to kill said
Erlinda P. Boyose and which price and/or offer was accepted by said
Leonardo Bontia and Zaldy Bontia; that in pursuance of said conspiracy
said accused Leonardo Bontia, with treachery and evident premeditation,
willfully, unlawfully and feloniously assaulted, and shot with a caliber 22

Magnum homemade revolver and hit said Erlinda Boyose, thereby

inflicting upon her the following, to wit:
AVULSION. LOWER LIP AND NAPE SECONDARY TO GUNSHOT
WOUND WITH DISPLACEMENT OF TEETH ON MANDIBLE; FOREIGN
BODY, G-4-5 LEVEL which injuries would ordinarily cause the death of the
said Erlinda Boyose, thus performing all the acts of execution which
should have produced the crime of murder as a consequence, but
nevertheless did not produce it by reason of causes independent of their
will, that is the timely shout and cry for help of Erlinda Boyose that as a
result of which immediate assistance was had from a member of a coast
guard and by the timely and able medical assistance rendered to the said
Erlinda Boyose which prevented her death." 6
During their arraignment,7 all the accused pleaded not guilty. Thereafter, herein
Petitioner Mallari moved for a separate trial, which was granted by the trial court in its
Order dated September 18, 1990.
In his separate trial, Mallari did not present evidence to establish his innocence or to
refute the prosecutions evidence against him. Instead, he moved for dismissal by way
of demurrer to evidence which, however, the trial court denied in its Order dated July 2,
1992. Thereafter, although given ample time and granted numerous postponements
over about a year, petitioner failed to present any witness in his favor.
Even in its Memorandum, the defense did not present its version of facts.
Ruling of the Trial Court
After evaluating the evidence on record, the RTC concluded that there was conspiracy
among the three accused, although Leonardo Bontia was alone when he shot Erlinda
Boyose. It held herein Petitioner Mallari liable as principal by inducement, Leonardo
Bontia as principal by direct participation, and Zaldy Bontia as principal by
indispensable cooperation, based on the following circumstances supposedly
establishing their complicity:
"1. Accused Mallari has an axe to grind against victim Boyose therefore, has an
interest of silencing her because of her persistent inquiries regarding the use or
misuse of school funds under the custody of Mallari as principal of Bustamante
Barangay High School. This is the motive for the shooting of Erlinda Boyose.
"2. The contact man Zaldy Bontia is beholden to Melanio Mallari being a protg
and a man Friday of the latter who exercised moral ascendancy considering that
he promised Zaldy a steady government job and have been extending cash
advances in the form of allowances to tide him over till such time that he can
receive a regular salary from the government.

"3. Leonardo Bontia is the older brother of Zaldy who at that time the job was
offered to him by Mallari to kill Boyose was in dire need of money having eight (8)
children and wife to support.
"4. Leonardo Bontia when confronted by the victim at the police station readily
admitted he shot Erlinda Boyose because of the money he hopes to receive from
Mallari afterwards.
"5. Zaldy Bontia gave P900.00 to Leonardo Bontia which came from Mallari so
Leonardo can hide.
"6. That Zaldy Bontia likewise confessed of his participation of the crime after
being confronted by the victim at the police station.
"7. Both Leonardo and Zaldy Bontia voluntarily executed an extra-judicial
statement regarding their complicity to the crime.
"8. A letter marked exh. I addressed to the victim Erlinda Boyose which clearly
came from Leonardo Bontia because it contained narration of events anent the
crime and full of explicit details which only the author of the shooting has
personal knowledge of and asking for forgiveness." 8
Thus, the RTC disposed as follows:
"WHEREFORE, the prosecution having established the guilt of accused Melanio
Mallari as principal by inducement, Leonardo Bontia as principal by direct
participation and Zaldy Bontia as principal by indispensable cooperation beyond
reasonable doubt, the court finds the aforesaid three accused guilty of the crime
of frustrated murder as charged in the information. They are hereby sentenced to
suffer the indeterminate penalty of 4 years 2 months and 20 days of prision
correccional as the minimum to 11 years 6 months and 21 days of prision mayor
as the maximum and to solidarily indemnify the victim Erlinda Boyose in the
amount of P15,000.00 representing loss of income, P8,000.00 representing
hospital and medical expenses, P20,000.00 as attorneys fees and P50,000.00
as moral damages and to pay the cost."9
Ruling of the Court of Appeals
On appeal, the CA essentially upheld the findings and conclusions of the trial court,
except as to the stage of the crime committed.
The appellate court was convinced that petitioner was the one who had induced the
Bontia brothers to kill Boyose, despite the absence of direct evidence showing his
participation in the crime charged. It ratiocinated that the accused could be convicted on
the basis of circumstantial evidence. There was more than one circumstance, the facts

from which the inferences were derived had been proven, and the combination of all the
circumstances was such as to produce a conviction beyond reasonable doubt.
It further held that, in the separately held trial of petitioner, there was "no need for the
prosecution to offer the evidence adduced during the trial of the Bontia brother[s,]"
considering that only one criminal Complaint had been filed against all the accused.
Moreover, the issue could not be raised for the first time on appeal.
Hence, as stated earlier, the CA modified the trial courts disposition and convicted the
accused-appellants of attempted murder.
This Petition10 was filed only by the alleged mastermind, Melanio Mallari.
Issues
In his Memorandum, petitioner submits the following issues for the Courts
consideration:
"I.
Whether the questioned CA Decision and the refusal by the Court of Appeals to
reconsider it in its CA Resolution [are in] accord with the circumstantial
evidence rule and the controlling jurisprudence thereon;
"II.
Whether the questioned CA Decision and the refusal by the Court of Appeals to
reconsider it in its CA Resolution, upholding the trial courts admission of an
irrelevant, immaterial and improper evidence (coming from Edwin Amparado)
which was among the basis for conviction was in accordance with law and
jurisprudence;
"III.
Whether the questioned CA Decision and the refusal by the Court of Appeals to
reconsider it in its CA Resolution, correctly sustained the trial courts
consideration of an evidence given in a separately conducted trial (not as against
the petitioner) which was among the basis for conviction; and
"IV.
Whether the questioned CA Decision and the refusal by the Court of Appeals to
reconsider it in its CA Resolution, which failed to tackle all the issues raised on
appeal was consistent with due process."11

In brief, the issues raised before this Court will be discussed seriatim as follows: (1)
whether the trial and the appellate courts erred in taking cognizance of evidence given
in the separate trial of petitioners co-accused; (2) whether there was sufficient
circumstantial evidence to establish petitioners guilt beyond reasonable doubt; and (3)
whether the Court of Appeals failed to accord due process to petitioner.
This Courts Ruling
The Petition is meritorious. The prosecution failed to adduce the quantum of evidence
needed for a criminal conviction.
First Issue:
Evidence Proffered in Separate Trial
Petitioner alleges that the trial and the appellate courts convicted him on the basis
mainly of evidence adduced at the separately held trial of his co-accused. He submits
that absent such evidence, there would have been no sufficient proof to establish his
guilt beyond reasonable doubt.
In its Memorandum, the Office of the Solicitor General (OSG) simplistically contends
that in the trial against petitioner, there was no need to offer anew the evidence
separately proffered against the Bontias, because "the case [filed against them]
involved only one case number." 12 Respondent fails to cite jurisprudence in support of
such logic or to give even a semblance of a sound rationale therefor.
As a rule, a court should not take judicial notice of evidence presented in other
proceedings, even if these have been brought before it or have been heard by and are
actually pending before it. This rule is especially true in criminal cases, in which the
accused have the constitutional right to confront and cross-examine the witnesses
presented against them.13 Moreover, when a separate trial is granted, the testimony of
the accused imputing the crime to the co-accused is not admissible against the latter,
who has had no opportunity to cross-examine the witnesses. 14
Parenthetically, the object of conducting a separate trial would be rendered naught if
evidence proffered at the trial of one of the accused would be considered likewise
adduced in the distinct trial of the other accused. What then would be the rationale for
requesting and being granted separate trial? While the grant of separate trials for
persons jointly accused of an offense is discretionary upon the court, the motions
therefor are usually found meritorious when antagonism is apparent in the respective
defenses of the accused.15
In the case before us, petitioners co-accused -- Zaldy and Leonardo Bontia -- executed,
prior to trial, their respective extrajudicial confessions admitting their complicity in the
crime charged and implicating petitioner as the mastermind. On the other hand, in
denying their accusations, petitioner stood his ground and refused to execute a

statement. Precisely, their antagonistic defenses must have impelled him to seek, and
the trial court to grant him, a separate trial.
Records show, however, that most of the prosecution witnesses presented during the
trial of the Bontias were likewise presented during the separate trial of petitioner.
Testifying against him on December 20, 1990, was Pfc. Danilo Carvajal. The latter said
that, as police investigator of the Sasa Patrol Station, he had conducted an investigation
of the shooting incident involving Erlinda Boyose, leading to the arrest of Zaldy and
Leonardo Bontia and Melanio Mallari. He had allegedly taken the supposed extrajudicial
confession of Leonardo Bontia who, after being apprised of his constitutional rights,
voluntarily executed his Sworn Statement in the presence of an inquest lawyer of the
Public Attorneys Office (PAO).16
On the same day, Atty. Jonathan Jocom testified that he was the PAO lawyer who had
assisted the Bontias while each of them was under custodial investigation on August 2,
1989; that prior to their investigation, he had apprised them of their constitutional rights
to counsel and not to be compelled to make any statement against their interests; and
that despite his repeated warnings about the negative consequences of their
statements, they nevertheless voluntarily executed and signed their statements
confessing to the crime.17
On April 19, 1991, Pfc. Anastacio Naive testified that he had also investigated the
shooting incident; interviewed the victim (Erlinda Boyose) and the witness (Edwin
Amparado) who was an alleged friend of petitioner; and that he had reduced the
statement of Zaldy Bontia into writing after informing the latter of his constitutional rights
in the presence of Atty. Jocom. Zaldy named Melanio Mallari as the mastermind who
had asked him to look for a triggerman who would "eliminate" Boyose. 18
The testimonies of Policemen Antonio Ysulat and Victoriano Padilla were admitted by
herein petitioner, according to the stipulation of his counsel. 19 Ysulat was the Sasa
Patrol Stations exhibit custodian, to whom the gun that had allegedly been used in the
shooting incident was turned over. Padilla was the desk officer who had recorded the
Complaint regarding the incident on June 29, 1989, the appearance of Erlinda Boyose,
her identification of Zaldy and Leonardo Bontia from a police lineup, and the
appearance of Petitioner Mallari at the patrol station on August 2, 1989.
Erlinda stated20 that she was a classroom teacher and guidance counselor of
Bustamante High School, where petitioner was the principal from 1983 to 1989; and that
initially, they had a good working relationship, which turned sour when she began
inquiring about school funds that had remained unaccounted for. On March 22, 1989,
she personally handed over to him a letter 21 she had written, reminding him of, among
other things, some basic needs of the school that had remained unmet, such as
blackboards, chairs and comfort rooms for the students; and his failure, as the school
administrator in the past five years, to account for fees collected from students.

She then admonished him in that letter for his moral indiscretions in
office;22 recommended that he conduct dialogues/discussions with teachers, students
and their parents, to disclose financial reports so as to avoid suspicions of fund misuse;
and, finally, apologized for having to bring up all these matters, but expressed hope that
it would all be for the improvement of the school administration. Boyose further testified
that after reading the letter, Mallari told her sarcastically that he had been to so many
schools, but that it was only she who had written to him in such a manner; he warned
her that she "made a mistake in writing this [letter]."
Boyose also attested to the incidents of that fateful day, June 29, 1989, which
culminated in the attempt on her life by Leonardo Bontia. He had asked her earlier that
day in school about how to enroll his nephew at the Bustamante High School. Because
of the gunshot injuries that she sustained, she had to undergo hospitalization for which
she incurred expenses.
While the instant case was pending trial, Leonardo Bontia supposedly wrote her a
letter23 asking for "forgiveness for the crime [he] had done against [her,]" saying that he
was in dire need of money at the time. Allegedly, he had to go to Mallari, hoping to be
able to ask for some, but the latter instead "dared [him] to discipline Mrs. Boyose,"
"gave [him] food and drinks until [he] got drunk," and also promised to give him money
and a job. Because the accused was drunk and, thus, "out of his mind," he supposedly
gave in to the prodding of Mallari.
Only two other witnesses against the Bontias were not presented against Petitioner
Mallari. They were (1) Pfc. Remo Pagal, who had also participated in the investigation
and allegedly received an informers tip that led to their arrest; and (2) Dr. Roberto
Alabado, who had treated the injuries of the victim. 24
The remaining witnesses at the separate trial of the Bontias were petitioners coaccused, Zaldy and Leonardo Bontia. It is worth noting that despite their earlier
confessions -- as attested to by Witnesses Carvajal, Jocom and Naive -- the Bontia
brothers, assisted by counsel, entered a plea of not guilty. Moreover, during their trial,
the brothers denied committing the crime; admitted to having signed their respective
statements; but alleged that these had been procured without the assistance of counsel
and with the police officers use of force, intimidation and violence. 25
After reading the testimonies of Pagal, Alabado and the two Bontias and reviewing the
rulings, we find that the trial and the appellate courts could not have taken those
testimonies into substantial consideration, if at all, in convicting the petitioner. In fact, the
testimonies of Pagal and Alabado were merely corroborative of those of the other
witnesses who were presented during petitioners trial. On the other hand, the
declarations of Zaldy and Leonardo Bontia in open court were, on their face, favorable
to him. And the lower courts cognizance of those declarations would not have
prejudiced him, as petitioner asserts. However, despite the denials by the Bontias, the
lower courts still found them, including petitioner, guilty.

We therefore find no basis at all for the allegation of petitioner that the trial and the
appellate courts convicted him on the ground of evidence adduced at his co-accuseds
separate trial, but supposedly not during his own trial.
Second Issue:
Sufficiency of Circumstantial Evidence
A close perusal of the testimonies of the witnesses presented against petitioner reveals
the absence of direct evidence establishing his criminal participation. Nonetheless, in
the absence of direct proof, a conviction may still be based on circumstantial evidence.
But to warrant such conviction, the following requisites must concur: (1) there is more
than one circumstance, (2) the facts from which the inferences are derived are proven,
and (3) the combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt.26
Corollary to the constitutional precept that the accused is presumed innocent until the
contrary is proved, a conviction based on circumstantial evidence must exclude each
and every hypothesis consistent with innocence. 27 Hence, if the totality of the
circumstances eliminates beyond reasonable doubt the possibility of innocence,
conviction is proper; otherwise, the accused must be acquitted. 28
With the above jurisprudential premises in mind, we examined the circumstances on the
basis of which petitioner had been found guilty beyond reasonable doubt and,
consequently, convicted.
According to the CA, the following circumstances were sufficient to establish the
criminal culpability of the three accused (Zaldy and Leonardo Bontia, as well as
Petitioner Mallari):
"x x x. First, appellant Mallari had an axe to grind against the victim because of
her persistent inquiries regarding the use or misuse of school funds under the
custody of Mallari as principal of Bustamante Barangay High School. This fact
shows the motive of Mallari in silencing her. Second, Zaldy Bontia, the person
who looked for a killer, is beholden to Melanio Mallari, considering that the latter
had promised him a steady government job and had been giving cash advances
in the form of allowance to tide him over till such time that he could receive a
regular salary from the government. Third, Leonardo Bontia is the older brother
of Zaldy. When the job to kill Boyose was offered by Mallari to Leonardo Bontia,
the latter immediately acceded considering that he was in dire need of money
having eight (8) children and a wife to support. Thus, when confronted by the
victim at the police station, he readily admitted that he shot Erlinda Boyose
because of the consideration he hoped to receive from Mallari afterwards.
Fourth, the money in the amount of P900.00 which Zaldy Bontia gave to his
brother Leonardo so that he can hide came from Mallari. Fifth, the confession
made by Zaldy Bontia concerning his participation to the crime after he was

confronted by the victim at the police station. Sixth, both Leonardo and Zaldy
Bontia voluntarily executed extra-judicial statements regarding their involvement
in the crime. In their respective extra-judicial confession, they pointed to Mallari
as the person who induced them to kill Boyose. Finally, the letter of Leonardo
Bontia marked as Exhibit I, addressed to the victim asking for forgiveness,
contained narration of events with full of explicit details regarding the commission
of the crime."29
In its Memorandum,30 the OSG substantially repeats the above circumstances in
support of the conviction of petitioner.
The first circumstance -- that "Mallari had an axe to grind against the victim because of
her persistent inquiries regarding the use or misuse of school funds" -- appears to be a
conclusion based merely on the impression of the victim herself. Other than the one
letter31 she wrote to petitioner, only her self-serving statement supported her allegation
that she had questioned persistently (several times) his supposed administrative
malpractices as school principal.
Be that as it may, a reading of that letter, which was indeed replete with denigrating
statements against him, probably served as a motive for a reprisal from him, if its
contents were not treated as constructive criticism. To the extent that it tends to
establish motive, this circumstance may be taken into consideration in the overall
assessment of the evidence against him.
The second to the fourth circumstances32 are not directly established by the evidence
against petitioner. None of the prosecution witnesses testified thereon. A scrutiny of the
records of the case reveals that those circumstances were derived from the "Written
Statements"33 that had been made by petitioners co-accused and presented when
Prosecution Witnesses Carvajal and Naive testified. These witnesses were the police
investigators who had reduced into writing the statements of Leonardo and Zaldy Bontia
at the time of the arrest of the latter two.
Section 36 of Rule 130 of the Rules of Court provides that witnesses can testify only
with regard to facts of which they have personal knowledge; otherwise, their testimonies
would be inadmissible for being hearsay.34 In the present case, neither of the said
witnesses had personal knowledge of the second to the fourth circumstances
considered by the appellate court, or of the rest of the statements made by the
declarants in their respective Written Statements. The witnesses merely attested to the
voluntariness and due execution of the Bontias respective extrajudicial confessions.
Thus, insofar as the substance of those confessions is concerned, the testimonies of
the police witnesses are mere hearsay.35
The fifth and the sixth circumstances refer to the aforementioned Written Statements of
petitioners co-accused who did not, however, testify against him. Well-settled is the rule
that extrajudicial declarations are inadmissible in evidence against the declarants coaccused.36 The admission by the court of such declarations violates the incriminated

persons right to due process. This principle holds if, as in the case before us, the
declarants fail to take the witness stand and thereby deny the accused-petitioner the
fundamental right to confront and cross-examine them face-to-face, in order to test their
truthfulness and credibility.
True, there are exceptions to this rule, such as when the confession is used as
circumstantial evidence to show the probability of the participation of the co-accused in
the crime, or when the confession is corroborated by other pieces of evidence. 37 In such
instances, the significance of the confession comes to the fore, but only in relation to the
other circumstantial evidence establishing the guilt of the person incriminated. In the
instant case, the merits of the fifth and the sixth circumstances mentioned by the
appellate court depend, therefore, on the strength of the other circumstantial evidence
against petitioner.
But, as discussed so far, just the first circumstance, establishing petitioners motive,
may be given due weight. Only one more remains to be considered, as the three other
circumstances have been discounted as hearsay.
This last circumstance cited by the appellate court pertains to a supposed letter of
Leonardo Bontia addressed to the victim, containing explicit details regarding the
commission of the crime and asking for forgiveness. The latter was presented as part of
the testimony of the victim, Erlinda Boyose. However, Leonardo was not presented in
court to identify it. No other witness testified as to its genuineness or as to the fact that it
had personally and voluntarily been written by him. Incidentally, Boyose received it
through the mail, and no one ever attested that it had in fact been written and sent by
the same Leonardo Bontia, petitioners co-accused. 38
As we have said earlier, witnesses can testify only with regard to facts of which they
have personal knowledge. Testimonial or documentary evidence is hearsay if it is
based, not on the personal knowledge of the witness, but on the knowledge of some
other person not on the witness stand. Consequently, hearsay evidence -- whether
objected to or not -- has no probative value unless the proponent can show that the
evidence falls within any of the exceptions to the hearsay rule, as provided in the Rules
of Court.39 Clearly, none of the exceptions apply to the present case.
Thus, an unverified and unidentified private document cannot be accorded probative
value. It is precluded because the party against whom it is presented is deprived of the
right and opportunity to cross-examine the person to whom the statements or writings
are attributed. Its executor or author should be presented as a witness to provide the
other party to the litigation the opportunity to question its contents. Being mere hearsay
evidence, failure to present the author of the letter renders its contents suspect and of
no probative value.40
There is another circumstance, not mentioned by the appellate court but advanced by
the Office of the Solicitor General: that Prosecution Witness Edwin Amparado declared

that he had been contacted by petitioner to kill Boyose. Let us first recall the testimony
of that witness, as related by the trial court:
"On December 11, 1990, Edwin Amparado testified that he personally knows
accused Mallari because he studied at F. Bangoy Barangay High School where
Melanio Mallari was the principal from 1983 to 1984, that he also knows Zaldy
Bontia, that the last time he saw Zaldy Bontia was in February 1989 in the house
of Melanio Mallari located at Juan Luna, corner Chavez Streets, that he went to
the house of Melanio Mallari to pledge his electric fan, that Melanio Mallari asked
him to kill Mrs. Boyose who used to be his neighbor at Doa Pilar Village but
nothing came out of it, that later he heard over the radio that Mrs. Boyose was
shot, that he knows Andy Magdadaro who was his neighbor in Agdao, that they
talked about the plan to kill Mrs. Boyose, that Andy Magdadaro was only waiting
for his go-signal, that he executed an affidavit regarding the offer of Melanio
Mallari to kill Mrs. Boyose. He said on cross-examination that he did not feel
disgusted when Mallari asked him to kill Mrs. Boyose, that he thought of killing
Mrs. Boyose and relayed the offer to Andy Magdadaro the same job, that he is
close to Mr. Mallari, that the job of killing Mrs. Boyose was the only illegal job
offered to him by Melanio Mallari, that during that time he needed money
because his wife was pregnant, that he relayed the offer to Andy Magdadaro
because he is a rebel returnee."41
It appears that the prosecution presented Amparado merely to show that petitioner had
criminal intent against the victim. The testimony of the witness, however, concerned
petitioners alleged proposal to him (not to the Bontias) to kill Boyose -- an act that, by
his own admission, did not materialize. Even if indeed petitioner made such a proposal,
it did not necessarily mean that it was also made to the Bontias, absent any strong
supporting evidence. The witness does not in fact appear privy to any conspiracy
between petitioner and the Bontias.
Thus, insofar as the actual attempt on the life of Boyose is concerned, Amparados
testimony is clearly irrelevant or of no probative weight. It does not tend to establish, to
any reasonable degree, the probability of a fact in issue 42 -- whether petitioner had
induced or conspired with the Bontias to kill Boyose. Hence, the testimony is worthless
in establishing the guilt of petitioner of the crime charged against him.
In the final analysis, other than the victims letter to petitioner tending to establish his ill
motive, there is hardly any evidence to corroborate his co-accuseds extrajudicial
confessions (later recanted) or to establish the probability of his actual participation (by
inducement) in the commission of the crime. Considering that the strength of the
prosecution evidence against him falls short of the required quantum of proof beyond
reasonable doubt, his constitutional right to be presumed innocent must prevail.
The Court has repeatedly held that when the circumstances shown to exist yield at least
two inferences -- one of which is consistent with the presumption of innocence and the
other with the finding of guilt -- the Court must acquit the accused, because the

evidence does not then fulfill the test of moral certainty or suffice to support a judgment
of conviction.43
Consistent with the above principles, and in view of the dearth of evidence to prove his
guilt beyond reasonable doubt, petitioner must be acquitted.
Third Issue:
Due Process
Petitioner also claims that he was denied due process by the Court of Appeals, because
it allegedly failed to tackle all the issues raised in his appeal brief.
While it is no longer necessary to resolve this issue in view of our disposition of the
second one, it is enough to say that petitioner has neglected to substantiate this
allegation in his Petition. He did not, in fact, even care to point out -- much less discuss
-- what issues the appellate court had failed to resolve. In any event, a wrong
disposition by the court is not tantamount to denial of due process.
WHEREFORE, the assailed Decision insofar as it pertains to Petitioner
is REVERSED and SET ASIDE.
On
reasonable
doubt,
Petitioner
Melanio
Mallari y Liberato is ACQUITTED. The director of the Bureau of Corrections is directed
to cause the immediate release of petitioner, unless the latter is being lawfully held for
another cause; and to inform the Court of the date of his release, or the reasons for his
continued confinement, within ten days from notice. No costs.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION
G.R. No. L-41166 August 25, 1976
PEOPLE OF THE PHILIPPINES, AMELIA K. DEL ROSARIO and DIONISIO
CERBO, petitioners,
vs.
HON NUMERIANO G. ESTENZO Judge, Court of First Instance of Iloilo, and
GREGORIO OJOY respondents.
Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Octavio R.
Ramirez and Solicitor Mariano M. Martinez for petitioner People of the Philippines.

Enojas & Associates and Deogracias K. del Rosario for petitioners Amelia K. del
Rosario and Dionisio Cerbo.
Sixto P. Demaisip for private respondent.

ANTONIO, J.:p
Certiorari and prohibition with prayer for preliminary injunction to nullify the Order of
respondent Judge, dated July 30, 1975, sustaining the procedure proposed by defense
counsel that, in lieu of the testimony of the witnesses for the accused on direct
examination in open court, he was filing their affidavits, subject to cross-examination by
the prosecution. Per Resolution dated August 22, 1975, this Court issued a temporary
restraining order enjoining the respondent Judge from enforcing the questioned Order.
In Criminal Case No. 2891, entitled "People of the Philippines, plaintiff, versus Gregorio
Ojoy, accused", of the Court of First Instance of Iloilo, Branch III, after the accused
himself had testified in his defense, his counsel manifested that for his subsequent
witnesses he was filing only their affidavits subject to cross-examination by the
prosecution on matters stated in the affidavits and on all other matters pertinent and
material to the case. Private prosecutor Atty. Amelia K. del Rosario, one of the
petitioners here, objected to the proposed procedure but this notwithstanding,
respondent Judge gave his conformity thereto and subsequently issued the questioned
Order. Contending that respondent Judge gravely abused his discretion because the
aforesaid Orders violates Sections 1 and 2 of Rule 132 of the Revised Rules of Court,
which requires that the testimony of the witness should be given orally in open court,
and there is no appeal nor any plain, speedy and adequate remedy in the ordinary
course of law, petitioners instituted the present petition.
We grant the petition.
Sections 1 and 2, Rule 132 and Section 1, Rule 133 of the Revised Rules of Court
clearly require that the testimony of a witness shall be given orally in open court. The
afore-cited Sections 1 and 2 provide:
SECTION 1. Testimony to be given in open court. The testimony of
witnesses shall be given orally in open court and under oath or affirmation.
SEC. 2. Testimony in superior courts to be reduced to writing.- In superior
courts the testimony of each witness shall be taken in shorthand or
stenotype, the name, residence, and occupation of the witness being
stated, and all questions put to the witness and his answers thereto being
included. If a question put is objected to and the objection is ruled on, the
nature of the objection and the ground on which it was sustained or
overruled must be stated, or if a witness declines to answer a question

put, the fact and the proceedings taken thereon shall be entered in the
record. A transcript of the record made by the official stenographer or
stenotypist and certified as correct by him shall be prima facie a correct
statement of such testimony and proceedings.
Sections 1 and 2 of Rule 132 of the Revised Rules of Court are reproductions,
respectively, of Sections 77 and 78 of Rule 123, of the Old Rules of Court. Section 77 in
turn was taken from Section 381 of Act No. 190, 1 while Section 78 from Section 32 of
General Order No. 58. 2
The main and essential purpose of requiring a witness to appear and testify orally at a
trial is to secure for the adverse party the opportunity of cross-examination. "The
opponent", according to an eminent authority, 3demands confrontation, not for the Idle
purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose
of cross-examination which cannot be had except by the direct and personal putting of
questions and obtaining immediate answers." There is also the advantage to be
obtained by the personal appearance of the witness before the judge, and it is this it
enables the judge as the trier of facts "to obtain the elusive and incommunicable
evidence of a witness deportment while testifying, and a certain subjective moral effect
is produced upon the witness. 4 It is only when the witness testifies orally that the judge
may have a true idea of his countenance, manner and expression, which may confirm
or detract from the weight of his testimony. 5 Certainly, the physical condition of the
witness will reveal his capacity for accurate observation and memory, and his
deportment and physiognomy will reveal clues to his character. These can only be
observed by the judge if the witness testifies orally in court. Indeed, the great weight
given the findings of fact of the trial judge in the appellate court is based upon his
having had just that opportunity and the assumption that he took advantage of it to
ascertain the credibility of the witnesses. This has been explained by Chief Justice
Appleton, thus:
The witness present, the promptless and unpremeditatedness of his
answers or the reverse, their distinctness and particularity or the want of
these essentials, their incorrectness in generals or particulars, their
directness or evasiveness are soon detected. ... The appearance and
manner, the voice, the gestures, the readiness and promptness of the
answers, the evasions, the reluctance the silence, the contumacious
silence, the contradictions, the explanations, the intelligence or the want of
intelligence of the witness, the passions which more or less control-fear,
love, have, envy, or revenge are all open to observation, noted and
weighed by jury. 6
Thus, Section 1 of Rule 133 of the Rule 7 requires that in determining the superior
weight of evidence on the issues involved, the court, aside from the other factors therein
enumerated, may consider the "witness manner of testifying" which can only be done if
the witness gives his testimony orally in open court". If a trial judge prepares his opinion
immediately after the conclusion of the trial, with the evidence and his impressions of

the witnesses fresh in his mind, it is obvious that he is much more likely to reach a
correct result than if he simply reviews the evidence from a typewritten transcript,
without having had the opportunity to see, hear and observe the actions and utterances
of the witnesses.
There is an additional advantage to be obtained in requiring that the direct testimony of
the witness be given orally ill court. Rules governing the examination of witnesses are
intended to protect the rights of litigants and to secure orderly dispatch of the business
of the courts. Under the rules, only questions directed to the eliciting of testimony which,
under the general rules of evidence, is relevant to, and competent to prove, the issue of
the case, may be propounded to the witness. A witness in testify only on those facts
which he knows of his own knowledge. Thus, on direct examination, leading questions
are not allowed, except or, preliminary matters, or when there is difficult in getting direct
and intelligible answer from the witness who is ignorant, a child of tender years, or
feebleminded, or a deaf mute. 8 It is obvious that such purpose may be subverted, and
the orderly dispatch of the business of the courts thwarted if trial judges are allowed, as
in the case at bar, to adopt any procedure in the presentation of evidence other than
what is specifically authorized by the Rules of Court.
WHEREFORE, in view of the foregoing, the petition for certiorari is hereby granted and
the order of respondent Judge, dated July 30, 1975, in Criminal Case No. 2891 is
hereby set aside, and the temporary restraining order issued on August 22, 1975 is
hereby made permanent, without any pronouncement as to costs.
Fernando, Barredo, Aquino and Concepcion, Jr., JJ., concur.

Separate Opinions

BARREDO, J., concurring:

I concur, with the qualification herein set forth.
At the outset, I wish to make it clear that I find the innovative procedure sanctioned by
respondent judge to be in line with the progressive tendency characterizing the new
rules that have modified the system of preliminary investigation of criminal complaints
by fiscal's, where basically the determination of the existence or non-existence of
probable cause is now supposed to be made on the basis of mere affidavits and
counter-affidavits, as well as those now obtaining in practically all labor cases in the

offices in the Department of Labor which have been vested with exclusive jurisdiction
over the same pursuant to the policy of the government to dejudicialize them, And so, if
the subject case herein were only a civil case instead of being a criminal one and it
appearing that the counsel for the supposedly aggrieved partner the trial fiscal in this
instance, who, under the law, has supervision and control of the prosecution, not the
private prosecutor who alone filed the petition herein, and, at that, in her own name
instead of her client, the alleged offended party, 1 I would have voted to deny the
petition. Indeed, I do not see anything fundamentally wrong with the basic procedure
approved by His Honor of allowing the direct examination of a witness to be presented
in the form of a previously prepared affidavit, provided that the same s reaffirmed over
the oath of the affiant in open court when he testifies. But I am now voting to giant the
petition because the procedure questioned here is a little short of what I feel ought to
have been done, even on the phypothesis that We were dealing with a civil case.
While I Would consider it a substantial compliance with the requirement of Sections 1
and 2 of Rule 132 about the testimony of a witness being given in open court and that
the questions and answers be dully recorded by the stenographic notes that the direct
examination be in the form of an affirmation by the witness under oath of a ready made
affidavit, particularly when the adverse parts does not object, it is but in keeping with
better practice and more protective of the rights of the adverse party, to require that the
said affidavit be first pasturized or sanitized so as to limit the same only to evidence that
is material and competent. This preliminary step may be done either at the Pre-trial
Where the court may require all affidavits to be used for the purpose to be submitted, or
at a preliminary state of the trial proper before the witness takes the Witness stand.
Thus, the resulting direct testimony will not be polluted with inadmissible evidence and
the cross-examination will be confined to what is material and competent. The only
remaining possible objection then would be that the question asking for affirmation
would be leading and that the answer would be in narrative form, but these are minor
considerations. To start with, the affidavit may be made in question and answer form.
Secondly, I have always considered the objection to a leading question as essentially
relating to a mere matter of form, not of substance, hence relatively unimportant. And as
to answers in narrative form, the basic objection thereto is that it may include irrelevant
and incompetent testimony, (Francisco on Evidence, The Revised Rules of Court, Vol.
VII, Part 11, 1973 ed., p. 211) but if the affidavit to be affirmed by a witness has already
been purged of the objectionable portions as above indicated the form of the answer
should already be of no consequence.
Undoubtedly this innovative procedure will advance greatly the march towards
simplification and speed in the conduct of trials. As against possible shortcomings
thereof in actual operation as above outlined, I am certain that the advantages to be
derived by adopting it far outweigh the bases of the objections thereto. Of course, it is
without saying that for this procedure to be successfully employed and to attain the
objective of speeding up the trial of cases, it is imperative that there should be intelligent
cooperation between the court and contending counsels, who should try to avoid
unnecessary inconsequential objections, for every lawyer must know that the
profession's first mission is to help the court in every way possible so that his case could

be disposed of not only justly but with utmost dispatch, as long as with expedient means
employed no substantial prejudice is caused to the interests of his client.
In brief, my concurrence here is premised on the failure of respondent judge to first
have the affidavits of the accused and his witnesses subjected to the possible legitimate
objections of the prosecution to any portion thereof. It is not decision although
significant, that it does not appear in the record that the fiscal who did not object to the
Procedure suggested by counsel for the accused took pains to require that the affidavits
be first submitted for his examination, to give him the opportunity to make proper
objections to portions thereof that might be incompetent or inadmissible. I take it that
such omission could be due to the fiscal's unawareness of the exact import of the
unorthodox procedure in question, hence he was unprepared to act accordingly. His
Honor should nevertheless have seen to it, before giving his assent to the proposal of
the defense, that the proper measures were taken to insure that all the matters
contained in the affidavits offered by the defense are competent and admissible under
the law.
I reiterate I see no fundamental objection to a direct testimony in the form I have
discussed above. After all, according to the scholarly main opinion itself, "the main and
essential purpose of requiring a witness to appear and testify orally at a trial is to secure
for the adverse party the opportunity of cross-examination. No doubt, it is Crossexamination in open court that is indispensable. The direct examination is secondary
because, ordinarily, as is generally known, it can be fully rehearsed anyway, unlike
cross-examination.
In closing, I wish to personally commend His Honor's obvious attitude of trying to
improve upon existing procedures with an eve to making trials less burdened with timeconsuming and complicated technical features that can anyway be done away with
without sacrificing the essence of the judicial inquiry into the facts in dispute. Indeed, I
have always tried to encourage all judges to look for ways and means of improving
upon the beaten paths of existing practices and techniques, to the end that the trial and
disposition of all kinds of cases before them may be simplified and abbreviated, if they
have to be activists or revolutionaries in the process. Just a word of caution those for
there are corners that cannot and must not be cut, and it is always best to occasionally
seek counsel from among the knowledgeable members of the bar, preferably in the
open, before plunging into untrodden areas.

Separate Opinions
BARREDO, J., concurring:
I concur, with the qualification herein set forth.

At the outset, I wish to make it clear that I find the innovative procedure sanctioned by
respondent judge to be in line with the progressive tendency characterizing the new
rules that have modified the system of preliminary investigation of criminal complaints
by fiscal's, where basically the determination of the existence or non-existence of
probable cause is now supposed to be made on the basis of mere affidavits and
counter-affidavits, as well as those now obtaining in practically all labor cases in the
offices in the Department of Labor which have been vested with exclusive jurisdiction
over the same pursuant to the policy of the government to dejudicialize them, And so, if
the subject case herein were only a civil case instead of being a criminal one and it
appearing that the counsel for the supposedly aggrieved partner the trial fiscal in this
instance, who, under the law, has supervision and control of the prosecution, not the
private prosecutor who alone filed the petition herein, and, at that, in her own name
instead of her client, the alleged offended party, 1 I would have voted to deny the
petition. Indeed, I do not see anything fundamentally wrong with the basic procedure
approved by His Honor of allowing the direct examination of a witness to be presented
in the form of a previously prepared affidavit, provided that the same s reaffirmed over
the oath of the affiant in open court when he testifies. But I am now voting to giant the
petition because the procedure questioned here is a little short of what I feel ought to
have been done, even on the phypothesis that We were dealing with a civil case.
While I Would consider it a substantial compliance with the requirement of Sections I
and 2 of Rule 132 about the testimony of a witness being given in open court and that
the questions and answers be dully recorded by the stenographic notes that the direct
examination be in the form of an affirmation by the witness under oath of a ready made
affidavit, particularly when the adverse parts does not object, it is but in keeping with
better practice and more protective of the rights of the adverse party, to require that the
said affidavit be first pasturized or sanitized so as to limit the same only to evidence that
is material and competent. This preliminary step may be done either at the Pre-trial
Where the court may require all affidavits to be used for the purpose to be submitted, or
at a preliminary state of the trial proper before the witness takes the Witness stand.
Thus, the resulting direct testimony will not be polluted with inadmissible evidence and
the cross-examination will be confined to what is material and competent. The only
remaining possible objection then would be that the question asking for affirmation
would be leading and that the answer would be in narrative form, but these are minor
considerations. To start with, the affidavit may be made in question and answer form.
Secondly, I have always considered the objection to a leading question as essentially
relating to a mere matter of form, not of substance, hence relatively unimportant. And as
to answers in narrative form, the basic objection thereto is that it may include irrelevant
and incompetent testimony, (Francisco on Evidence, The Revised Rules of Court, Vol.
VII, Part 11, 1973 ed., p. 211) but if the affidavit to be affirmed by a witness has already
been purged of the objectionable portions as above indicated the form of the answer
should already be of no consequence.
Undoubtedly this innovative procedure will advance greatly the march towards
simplification and speed in the conduct of trials. As against possible shortcomings
thereof in actual operation as above outlined, I am certain that the advantages to be

derived by adopting it far outweigh the bases of the objections thereto. Of course, it is
without saying that for this procedure to be successfully employed and to attain the
objective of speeding up the trial of cases, it is imperative that there should be intelligent
cooperation between the court and contending counsels, who should try to avoid
unnecessary inconsequential objections, for every lawyer must know that the
profession's first mission is to help the court in every way possible so that his case could
be disposed of not only justly but with utmost dispatch, as long as with expedient means
employed no substantial prejudice is caused to the interests of his client,
In brief, my concurrence here is premised on the failure of respondent judge to first
have the affidavits of the accused and his witnesses subjected to the possible legitimate
objections of the prosecution to any portion thereof. It is not decision although
significant, that it does not appear in the record that the fiscal who did not object to the
Procedure suggested by counsel for the accused took pains to require that the affidavits
be first submitted for his examination, to give him the opportunity to make proper
objections to portions thereof that might be incompetent or inadmissible. I take it that
such omission could be due to the fiscal's unawareness of the exact import of the
unorthodox procedure in question, hence he was unprepared to act accordingly. His
Honor should nevertheless have seen to it, before giving his assent to the proposal of
the defense, that the proper measures were taken to insure that all the matters
contained in the affidavits offered by the defense are competent and admissible under
the law.
I reiterate I see no fundamental objection to a direct testimony in the form I have
discussed above. After all, according to the scholarly main opinion itself, "the main and
essential purpose of requiring a witness to appear and testify orally at a trial is to secure
for the adverse party the opportunity of cross-examination. No doubt, it is Crossexamination in open court that is indispensable. The direct examination is secondary
because, ordinarily, as is generally known, it can be fully rehearsed anyway, unlike
cross-examination.
In closing, I wish to personally commend His Honor's obvious attitude of trying to
improve upon existing procedures with an eve to making trials less burdened with timeconsuming and complicated technical features that can anyway be done away with
without sacrificing the essence of the judicial inquiry into the facts in dispute. Indeed, I
have always tried to encourage all judges to look for ways and means of improving
upon the beaten paths of existing practices and techniques, to the end that the trial and
disposition of all kinds of cases before them may be simplified and abbreviated, if they
have to be activists or revolutionaries in the process. Just a word of caution those for
there are corners that cannot and must not be cut, and it is always best to occasionally
seek counsel from among the knowledgeable members of the bar, preferably in the
open, before plunging into untrodden areas.
Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. No. L-44680 January 11, 1979
THE
PEOPLE
OF
THE
vs.
DOMINADOR MOLO, defendant-appellant.

PHILIPPINES, plaintiff-appellee,

Pedro Q. Quadra (Counsel de Oficio) for appellant.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Reynato & Puno and
Solicitor Romeo C. de la Cruz for appellee.

PER CURIAM:
Automatic review of the death sentence with accessory penalties imposed on
September 3, 1976 upon accused-appellant Dominador Molo by Hon. Job B. Mandayag
of the Court of First Instance of Romblon, 11th Judicial District, in Criminal Case No.
571 for the murder of Venancio Gapisa on 9 April 1976 at Sitio Dacotan, Barrio Tambac,
Romblon, Romblon.
The above-named accused was charged with murder in an Information filed by Asst.
Provincial Fiscal Cesar M. Solis, on May 31,1976, as follows:
The undersigned Assistant Provincial Fiscal of Romblon accuses
DOMINADOR MOLO of the crime of MURDER committed as follows:
That on or about the 9th day of April 1976, at around 8:00 o'clock in the
evening, at sitio Dacotan, barrio of Tambac municipality of Romblon,
province of Romblon, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused with treachery and taking
advantage of superior strength, did then and there wilfully, unlawfully and
feloniously attack and assault one Venancio Gapisa, with the use of a bolo
as a consequence of which he sustained mortal injuries that resulted in his
death thereafter.
That the killing
circumstances:

was

attended

with

the

following

aggravating

(A) Dwelling, for the crime was committed in the house of the offended
party who has not given any provocation at all.

(B) Recidivism in view of the fact that the accused has been charged for
(1) Frustrated Murder before the Court of First instance of Mindoro in
Criminal Case V-542 entitled People va. Dominador Molo and convicted
thereof on September 2, 1950; and (2) Murder, before the Court of First
Instance of Romblon in Criminal Case No. 862 entitled People vs.
Dominador Molo and convicted thereof on July 27, 1961.
(C) Reiteration, since he has been charged and convicted before different
courts in the following criminal cases:
(1) Grave Slander, before the Court of First Instance of Romblon in
Criminal Case No. V-669 and convicted on June 5, 1957.
(2) Less Serious Physical Injuries, before the Municipal Court of Romblon,
Romblon in Criminal Case No. 839 and convicted on October 9, 1959.
(3) Qualified Trespass to Dwelling, before the Municipal Court of Romblon,
Romblon in Criminal Case No. 845 and convicted on February 25, 1960.
(4) Robbery, before the Court of First Instance of Davao in Criminal Case
No. 9982 and convicted on March 1, 1967.
That as a consequence of the aforementioned act committed by the
accused. the heirs of the deceased are entitled to recover civil damages
pursuant to the provisions of law.
CONTRARY TO LAW.
Romblon, Romblon, May 31,1976.
(SGD.)
CESA
R M.
SOLIS
Assist
ant
Provin
cial
Fiscal
At the trial, the prosecution presented the testimonies of (1) the victim's wife,
Simeona Gapisa, an eye-witness to the alleged murder; (2) Alejandro Gapisa, a son of
the victim who went to the rescue of his father after he was stabbed by accuseappellant and was able to talk with him before he succumbed to several bolo wounds;

(3) Roman man a neighbor of Alejandro; and (4) Dr. Victorio Benedicto, who performed
the autopsy and accomplished the Autopsy Report, Exhibits "A" and "A.1 The accused,
who offered alibi as a defense, presented his testimony and that of his wife. Barbara
Mingo, and Police Patrolman Rodolfo Manunggay and Exhibits 1, a bolo and 1-a,
scabbard.
The operative facts of the case and the circumstances surrounding the apprehension
and investigation of the accused now appellant established by the evidence on record
are as follow.
In the evening of April 9, 1976 at about 8:00 p.m. at Sitio Dacotan, Barrio Tambac,
Municipality of Romblon, Venancio Gapisa and Simeona Rapa-Gapisa, husband and
wife, retired to sleep. The couple lived in a typical hut made of bamboo flooring and
dilapidated burl walling surrounded by fruit. bearing banana plants. Venancio Gapisa
immediately fell asleep because he was tired from clearing the fields, and besides, had
drunk tuba on that day. He slept near the door lying on his right side. 1
Not long after the couple had retired, Simeona, who had not yet fallen asleep, heard an
indistinct sound of murmur and gnashing of teeth. Although she was seized by fear, she
managed to peep through the dilapidated buri wall and saw accused Dominador Molo
attired only in short pants. He was alone. Trembling, she immediately lighted a kerosene
lamp and placed it on top of the trunk nearby. She tried to awaken her husband, but the
latter did not respond. 2
Meanwhile, the accused had already climbed up the house which was only a flight of
two steps. The accused forcibly pushed the sliding door and barged into the house. He
inquired from Simeona where Venancio was and she replied that he was asleep.
Finding Venancio sleeping near the door, he immediately grabbed his left wrist and
started hacking at the sleeping old man. Rudely awakened, Venancio quickly stood up
and with his right hand reached for his bolo which was atop the table nearby; but he
was not able to retaliate in as much as Dominador Molo was quick to hack at him again.
Fearing for her own life, Simeona rushed out of the house through the door of the
unfinished kitchen to summon help from her son, Alejandro Gapisa, who was at Roman
Mangaring's house some 100 meters away. Trembling, she told him that his father was
boloed by Boslo, the name by which accused-appellant was known in their locality. 3
Upon being informed, Alejandro and Roman ran towards the house of Venancio,
followed by Simeona. Upon arrival, they saw Venancio bleeding profusely and in
weakened condition. He was sitting on the floor of the kitchen, defecating in his pants.
When Alejandro took him in his arms, Venancio told him that he was boloed by Boslo.
Roman Mangaring who was present also inquired from Venancio who his assailant was
and elicited the answer, "Boslo". 4 Venancio was then rushed to the hospital and arrived
there at about 1:50 a.m. He expired a few minutes after. 5

An autopsy of the victim disclosed that he died of hemorrhage from multiple incised
wounds. The wounds sustained were:
1. Incised wound, 10 cms. in length, gaping about 4 cms., slanting in
position with the lower portion located anteriorly, penetrating the bone, at
the anterolateral aspect of the distal 3rd of the left arm.
2. Incised wound, about 10 cms. in length, gaping, slanting in position,
with the lower and located anteriorly, penetrating the bone, located 3 cms.
below the wound mentioned above.
3. Incised wound, about 10 cms. in length, gaping slightly at the
anterolateral aspect of the neck, left side, slanting, with the lower and
located anteriorly penetrating the muscle layer.
4. Incised wound, about 10 cms. gaping, slightly slanting with the lower
end located anteriorly, located 3 cms. below the 3rd wound, fracturing the
clavicle, the costo-chondral portion of the 2nd rib and the lateral portion of
the sternum, left side.
5. Incised wound, 8 cms. in length, gaping about 4 cms., slanting with the
lower end located anteriorly, penetrating the bone, located at the lower
end of the distal 3rd of the right arm, anterolateral portion.
6. Incised wound, 5 cms. in length, gaping slightly, slanting with the lower
end located anteriorly, penetrating the bone, at the; upper 3rd of the right
forearm, anterolateral aspect.
7. Incised wound, 4 cms., superficial, at the anterior portion of the neck,
8. Incised wound 4 cms., superficial, right medial aspect, upper 3rd, right
forearm.
Internal Findings:
Wound No. 4 penetrated the apex of the left lung inflicting a small wound,
about 2-3 cms. causing minimal bleeding.
The Cause of Death: Hemorrhage from multiple incised wounds.

The following morning an investigation of the fatal incident was conducted. Pat. Manuel
Marino in the presence of Patrolmen Montojo and Antonio Madali took the statement of
Simeona Gapisa, who Identified Dominador Molo as the assailant of her deceased
husband. 7 Thereafter, PC soldiers and policemen were dispatched to the house of

Dominador Molo some one and a half (1-1/2) kilometers away from the scene of the
killing. Dominador Molo was placed under arrest and brought by the arresting officers to
the poblacion. Investigated at the PC barracks, Molo denied having committed any
wrong and having gone to the place of Venancio Gapisa. 8
On April 23, 1976, after additional statements of Alejandro Gapisa, Roman Mangaring
and Florencio Guarte were secured, a criminal complaint was filed in the Municipal
Court of Romblon. 9 The preliminary examination was conducted by Mayor Peter M.
Montojo, for and in the absence of the municipal judge. Thereafter, he issued an order
confirming the detention of accused who was then detained in the Municipal jail of
Romblon, there being "... reasonable ground to believe that the offense was committed
and that the accused is probably guilty thereof. 10 The accused waived the second stage
of the preliminary investigation. 11 On May 31, 1976, an information, as adverted to
above, was filed against Molo accusing him of the crime of murder. 12
After trial, the court a quo relying on the testimony of Simeona Gapisa who was an
eye- and ear-witness to the incident and the corroborating testimonies of Alejandro
Gapisa and Roman Mangaring, who testified on the antemortem statements of the
victim Identifying accused as the assailant; discounting the defense of alibi put forth by
the accused and his wife; appreciating the qualifying circumstance of treachery and the
aggravating circumstances of dwelling, recidivism and reiteration alleged in the
Information, and a mitigating circumstance, voluntary surrender, sentenced the accused
on September 3, 1976, as follows:
WHEREFORE, this Court renders judgment finding accused Dominador
Molo guilty beyond reasonable doubt of the crime of murder, charged in
the information and, since after off-setting the lone mitigating circumstance
of voluntary surrender with the aggravating circumstance of either
dwelling, recidivism or reiteration there remains two aggravating
circumstances, sentencing him to suffer the supreme Penalty of death. He
is further adjudged to pay the heirs of the deceased Venancio Gapisa, the
sum of Twelve Thousand Pesos (P 12,000), and to pay the cost.
SO ORDERED. 13
Accused-appellant thru Atty. Pedro Q. Quadra, counsel de oficio now seeks acquittal on
the basis of two assigned erors, to wit 1. Appellant was convicted upon proof not beyond reasonable doubt;
2. Identification of the appellant was not proven beyond reasonable
doubt. 14

1. In support of the first, he argues that while proof of motive is unnecessary if the
evidence of Identification is convincing citing People vs. Cunanan, 19 SCRA
769; People vs. Portugueza, 20 SCRA 901; People vs. Jamero, 24 SCRA 206; and
People vs. Guardo, 24 SCRA 851 there is, he claims, a total want of motive on
appellant's part, as admitted by the victim's wife, Simeona Gapisa, and son, Alejandro
Gapisa. 15
2. In support of the second assigned error, appellant contents that his Identity as the
assailant was not established beyond reasonable doubt, because of (a) alleged
inconsistencies and incredible assertions in Simeona's testimony; (b) physical
conditions which rendered it impossible for her to recognized accused-appellant; (c) her
alleged admission that she pointed to accuse-appellant as the assailant because he
was a hated criminal in their locality; and (d) that the so-called dying declarations should
not have been accorded credence, because the victim could not have Identified his
assailant. 16
Solicitor General Estelito P. Mendoza - who was assisted by Assistant Solicitor General
Reynato Puno and Solicitors Romeo S. dela Cruz - after refuting the foregoing
assignment of errors submits the following conclusions as to the nature of the offense
committed, the qualifying and aggravating circumstances that attended the commission
thereof, and, that the accused is not entitled to the mitigating circumstance of voluntary
surrender, thus
xxx xxx xxx
Since the attack was commenced while Venancio Gapisa was asleep and
therefore he could not make a defense, the killing was attended with
treachery. Treachery qualifies the killing into murder. (Article 248, Revised
Penal Code).
Dwelling is an aggravating circumstance because the killing was done in
the house of Venancio Gapisa who had not given provocation. (Art. 14 (3),
Revised Penal Code).
Other aggravating circumstances are recidivism and reiteration. (Article
14, paragraphs 9 and 19, Revised Penal Code). Accused-appellant had
been previously convicted of murder, frustrated murder, grave slander,
less serious physical injuries, qualified trespass to dwelling and robbery.
(pp. 10-12, tsn., July 12, 1976).
Accused-appellant is not entitled to the mitigating circumstance of
voluntary surrender. He did not surrender to the authorities. As admitted
by him, he was arrested by a combined force of policemen and Philippine

Constabulary agents at his residence the day after the killing. (p, 6, tsn.,
July 29,1976).
Since there are three aggravating circumstances and no mitigating
circumstance, the penalty properly imposable upon accused-appellant is
death. 17
and recommends that the finding of guilt for the offense of murder and the death
sentence imposed upon appellant be affirmed in toto. 18
Now, to consider the merits of the alleged errors.
1. Re the claim that there is no proof of motive on appellant's part. This error may be
subsumed under and/or discussed together with the second, since it admits that motive
need not be shown where there is positive Identification, which, as We shall explain
later, happened in this case. However, by way of traverse, We find the following
observations of the Solicitor General well-taken, and therefore well worth adopting.
xxx xxx xxx
Appellee concedes that it has failed to show any motive of accusedappellant in killing Venancio Gapisa.
Both Simeona Gapisa and Alejandro Gapisa ventured robbery as the
motive of accused-appellant (pp. 34, 44, tsn., July 12, 1976). They could
not, however, state how much money was taken, from whom it was taken
and how it was taken (pp. 34-38, 44-45, tsn., July 12,1976).
Lest it be thought that Simeona Gapisa and Alejandro Gapisa gave false
testimony, thus rendering themselves untrustworthy witnesses, it should
be pointed out that when they mentioned robbery as the possible motive
of accused-appellant, Alejandro Gapisa made it clear that was only his
"surmise" (p. 34, tsn., July 12, 1976) while Simeona Gapisa qualified her
assertion with the word "maybe" (p. 44, tsn., July 12, 1976). They were not
committal or categorical about the matter.
Aside from robbery, there was no other possible motive of accusedappellant. Both Simeona Gapisa and Alejandro Gapisa admitted that
accused-appellant had no grudge against Venancio Gapisa and his family
and vice-versa (pp. 33-34, 53-54, tsn., July 12, 1976).
But even in the absence of proof of motive, the conviction of accusedappellant can stand inasmuch as he had been positively Identified by
Simeona Gapisa and by the deceased himself through his dying

declaration. Motive need not be shown when there is positive

Identification. (People vs. Feliciano, 58 SCRA 383; People vs. Dorico, 54
SCRA 172). 19
xxx xxx xxx
2. Re the contention that his Identity as assailant was not established beyond
reasonable doubt.
(a) That there are inconsistencies and incredible assertions in Simeona's
testimony.Simeona Gapisa who was present when accused-appellant attacked her
husband Venancio with a bolo testified on direct and re-direct examinations by
Assistant Provincial Fiscal Cesar M. Solis and on cross and recross examinations by
Atty. Alexander Mortel, counsel de oficio of accused, thus
xxx xxx xxx
Fiscal Solis:
Q By the way, when you first heard the unusual sound
since you were still awake, what did you do?
A I lighted a lamp, I first looked at him by peeping thru the
wall of our house and once I had recognized his face as that
of Dominador Molo I lighted a lamp.
Q Was it only the face of Dominador Molo that you
recognized outside?
A Yes, and he was alone.
Q What about his body, did you recognize that body
belong to Dominador Molo?
A I could see and that was the very body of his including
his face because it was bright.
Q What provides the brightness that allowed you to
recognize him outside the house?
A The moon was bright.
Q Now, aside from the unusual murmuring sound, did you
hear the sound of grinding teeth?

A In fact that was what he had done he was murmuring

and at the same time sounding like grinding teeth.
Q Now, after you lighted a lamp what else did you do
inside?
A I stood up and stepped back because he had come up
into the house.
Q Did you not wake up your husband?
A I had but he did not notice.
Q Now, what did you do with the lamp after you lighted it?
A I placed it on top of our trunk which was towards our
head.
Q Now, how did you know that Dominador had gone up
the house?
A Because I saw him going up into our house.
Q When he went up the house, what did he do?
A Once up the house he held my husband by the arm and
suddenly pulled out his bolo from his back and hacked
him. 20
xxx xxx xxx
Q How long have you known him?
A Since he was a boy and until he grew up.
Q By the way, by what affiliation (sic, should be appelation
or name) is he known in your locality?
A Boslo.
Q If that Dominador Molo the accused in this case known
as Boslo is present in the court room, will you be able to
point him out in the court?

A He is here he is the one sitting.

Q Could you not be mistaken?
A That is true, it was his very appearance who is looking
up in the ceiling. 21
xxx xxx xxx
Atty. Mortel:
Q Nevertheless, because the moon was a quarter moon
only that night April 9 the illumination any object that could
be seen is quite pale not so bright as if there was an alladin
lamp, correct?
A Yes.
Q And as a matter of fact when this person whom you
said was making murmuring sounds when you peeped
through your window he was being illuminated by the beam
of the light of the moon and his face seems to be a yellowish
and as clear as if there is an alladin lamp, correct?
A But I know that he was the very one I recognized his
face and he is far from the banana plantation and the Moon
lights very well on him.
Q When the moon lighted very well on him his color was
yellowish was it not?
A It was indeed his appearance that I saw and that is
exactly how he looked.
Q And When you looked at him the first time that night he
looked lie Dominador Molo?
A It was his very own appearance, his appearance never
changed.
Q And when you saw him you lighted a lamp, is that right?
A I lighted a lamp because he was already there and I
was afraid of what he had done to us.

Q You mean from the very first time that you saw him he
was making murmuring sounds you were already afraid that
he would do something bad against you and your husband?
A Yes, I was already afraid and my skin seemed to
shiver. 22
xxx xxx xxx
Q And so when your husband was or rather when your
house that night of April 19 was entered into by a person
making murmuring sounds outside and boloed to death your
husband there was no other conclusion that you made but
that it must be Boslo the killer?
A Yes, in fact he was the very one it was his very looks. 23
Fiscal Solis:
Q And who pushed open that door of yours, was it
Dominador Molo or a witch?
A He was Dominador Molo, it was his very looks of the
same person who pushed the shutter of the door.
Q What made you sure that the looks of that person was
the one who pushed open the door and went inside and
hacked your husband?
A He was the one it was his very looks and I saw that it is
his looks.
xxx xxx xxx
Q Now, what is this basis for positively telling us that is
Dominador Molo who killed your husband was it because of
rumor circulating in the locality of Cogon and that the
assailant as to be Dominador Molo because he has killed or
because you saw then Dominador Molo committing the act
against your husband?
A Not only what was given to me by way of information
from other people but because of what I actually saw with
my eyes. 24

xxx xxx xxx

Atty. Mortel:
Q Now, according to you when the door was pushed open
the person entered and he has the looks of that fellow whom
you are pointing to as Dominador Molo, is that correct?
A He is the very one.
Q And not only that person who entered the looks of that
Dominador Molo the accused in this case but he also has
the height that looks like the height of Dominador Molo, is
that correct?
A Yes and he had his shirt off and shorts on.
Q And he has that looks and built of Dominador Molo, is
that correct?
A Yes, that is his very appearance and could not be
altered anymore. 25
xxx xxx xxx
Appellant contents that inconsistencies exist between Simeona's statement given to the
police and her foregoing testimony in court, relative to 1) the precise moment when
Simeona recognized the accused, 26 and 2) whether there was a conversation between
Simeona and the accused. 27
The records show, however, that the alleged statement given to the police was neither
offered as evidence nor shown to witness in order to enable her to explain the
discrepancies if any in accordance to Section 16, Rule 132 of the Rules of Court. The
proper bast was, therefore, not laid to impeach Simeona's testimony on the basis of
alleged inconsistent statements which she allegedly made before the police. 28
At any rate, We find the alleged inconsistencies inconsequential. Inconsistencies on
minor details or on matters that are not of material consequence as to affect the guilt or
the innocence of the accused do not detract from the credibility of the witnesses. 29 The
discordance in their testimonies on collateral matters heightens their credibility and
shows that their testimonies were not coached or rehearsed. 30 Far from being evidence
of falsehood, they could justifiably be regarded as a demonstration of good faith. 31

It is also contended that the testimony of Simeona contains inconsistent averments.

According to accused-appellant Simeona claimed that she was able to Identify him
because of the lamp which was then lighted but that she also declared that the light was
put out when the door was opened because of the sudden gust of wind. 32 To support
this contention, he quoted Simeona's testimony:
Q And when the door was pushed open there was a
sudden gust of wind that entered the house, correct?
A There was a consequence of the sudden entry.
Q And with that sudden entry and gust of wind carried by
this fellow the light was snuffed out, correct?
A Yes. (P. 51, tsn., July 12,1976).
A review of the transcript of the testimony shows that the foregoing is an inaccurate
representation of Simeona's testimony. For she clarified that her husband was already
boloed before the light was snuffed out. Thus, she testified on cross-examination:
Atty. Mortel:
Q And with that sudden entry and gust of wind carried by
that fellow the light was snuffed out, correct?
A Yes.
Q And in the darkness inside this fellow who entered the
house began stabbing and boloing your husband, correct?
A My husband was already boloed when the light was put
out because upon entrance he instantly took hold of my
husband's arm and started hacking him all over. 33
xxx xxx xxx
On re-direct examination, she declared
Fiscal Solis:
Q Now, you admitted on cross examination that the lamp
was put out now how were you able to know that your
husband had attempted to hold his bolo with his right hand

and while in that position he was hacked twice by a bolo by

the accused Dominador Molo?
A That stage occurred when the light was still on so it was
still bright. 34
Appellant also alleges that her testimony contains incredible assertions, i.e. that it was
very unusual that she remained silent while witnessing the attack on her husband. 35
But the transcripts show that appellant's own counsel below, Atty. Alexander Mortel,
during the cross-examination, provided the answer to this misgiving :
xxx xxx xxx
Q When the door was pushed open did you not shout?
A No, because I was afraid.
Q Afraid of what?
A I was afraid because I did not shout for fear that he
might bolo me.
Q You were tongue-tied?
A Yes.
Q Because of fear?
A Yes.
Q Terrible fear?
A Yes, it was terrible fear because my body trembled .
Q To such extent that you were shocked?
A Yes. 36
Appellant also argues that Simeona's account is contrary to physical facts. He claims
that if, as she testified, the victim was lying down when attacked, he would sustain stab,
not incised wounds. He explains that the natural tendency of a person attacking another
who is lying down with a bolo would be to thrust the bolo towards the body and not hack
him. 37 This claim is without merit. The Solicitor General's explanation on this point is

well-taken. To simply thrust a bolo at a lying person is not as forceful as to hack him with
it. The first is an awkward if not difficult movement, but the second is natural and can be
done with facility. 38
(b) That conditions rendered it impossible for Simeona to recognize accused-appellant.
It is contended that Simeona could not have recognized accused-appellant while he
was at the foot of the stairs because the banana plants obstructed the light cast by the
moon. 39
This, again, is without merit. Simeona testified that the banana plants did not obstruct
the light cast by the moon and the defense did not disprove this fact:
xxx xxx xxx
Atty. Mortel:
Q And because of the banana plantation that is covering
your yard this quarter moon, the illumination thereof is
obstructing a little by this banana plantation?
A But the bananas are not directly obstructing the door of
our house because they are standing towards the footpath
the part of our house was not obstructed of the light cast by
the moon .
Q Except by the footpath and the surrounding premises of
the east side of the house is shaded because the banana
plantation are there to obstruct the illumination of the moon,
correct?
A No, the light coming from the moon could not be
obstructed anymore by that plantation because the main
door of our house is fronting a yard.
Q Nevertheless, because the moon was a quarter moon
only that night April 9 the illumination to any object that could
be seen is quite pale not so bright as if there was an alladin
lamp, correct ?
A Yes.
Q And as a matter of fact when this person whom you
said was making murmuring sounds when you peeped
through your window he was being illuminated by the beam

of the light of the moon and his face seems to be a yellowish

and as clear as if there is an alladin lamp, correct?
A But I know that he was the very one I recognized his
face and he is far from the banana plantation and the moon
lights very well on him.
Q When the moon lighted very well on him his color was
yellowish was it not?
A It was indeed his appearance that I saw and that is
exactly how he looked.
Q And when you looked at him the first time that night he
looked like Dominador Molo?
A It was his very own appearance his appearance never
changed. 40
Indeed, Simeona had no difficulty in recognizing the accused, considering that their
house was only elevated by two steps and at the time she saw him through the
dilapidated burl wall he was already at the foot of the stairs. 41
(c) That Simeona pointed to the accused as the killer because he was a hated criminal
in the locality. 42 Appellant contends that Simeona pointed to him as the assailant
because he was a hated criminal in the locality - not because he was properly Identified
as the one who attacked the victim. This claim has no basis in the records. For the
testimony of Simeona shows that she was certain of accused-appellant's Identity as
assailant and that at one point accused-appellant even inquired from her where her
husband was, thus
xxx xxx xxx
Fiscal Solis:
Q And who pushed open that door of yours, was it
Dominador Molo or a witch?
A He was Dominador Molo, it was his very looks of the
same person who pushed the shutter of the door.
Q What made you sure that the looks of that person was
the one who pushed open the door and went inside and
hacked your husband?

A He was the one it was his very looks and I saw that it is
his looks.
xxx xxx xxx
Q Now, what is this basis for positively telling us that it is
Dominador Molo who killed your husband was it because of
rumor circulating in the locality of Cogon and that the
assailant as to be Dominador Molo because he has killed or
because you saw then Dominador Molo committing the act
against your husband?
A Not only what was given to me by way of information
from other people but because of what I actually saw with
my eyes.
xxx xxx xxx
Atty. Mortel:
Q Now, according to you when the door was pushed open
the person entered and he has the looks of that fellow whom
you are pointing to as Dominador Molo, is that correct.
A He is the very one.
Q And not only that person who entered has the looks of
Dominador Molo the accused in this case but he also has
the height that looks like the height of Dominador Molo, is
that correct?
A Yes and he had his shirt off and shorts on.
Q And he has that looks and built of Dominador Molo, is
that correct?
A Yes, that is his very appearance and could not be
altered anymore.
xxx xxx xxx
Court: In your entire testimony you did not mention of any
conversation of Dominador Molo as soon as he went up the

house, did you not talk to him, did you not converse with
him?
A No, because he suddenly rushed our house.
Q And did he not ask you where is your husband and
answered there he is?
A That was it he was also asking as he entered.
Q So it is clear that you had a conversation with him?
A Yes.
Q And that is what you stated in the police?
A Yes, sir. 43
(d) Re the dying declarations. Appellant claims that the same should not be accorded
credence because the victim could not have recognized his assailant, since as testified
by Simeona he was asleep when attacked. 44Again this is inaccurate. It was only at the
initial stage of the attack when the victim was asleep, because he was awakened by the
first blows and stood up to defend himself Simeona declared:
xxx xxx xxx
Fiscal Solis:
Q How many times did you see Dominador bolo your
husband on the left arm?
A I saw him boloed my husband twice on the left arm and
when my husband noticed that he was being hacked he
reached for his bolo with his right arm to which instance
Dominador Molo noticing that he was going to use a bolo
Dominador hacked him again on the right arm.
Q Was your husband able to take hold of his bolo?
A He was able to take hold of the handle only because at
this instance he was hacked by Dominador and so the bolo
fell from his hands.

Q What hand did your husband use in taking hold of his

bolo?
A Right arm (sic: should be hand).
xxx xxx xxx
Q But was your husband able to rise from where he was
lying to get that bolo?
A He was able to rise but he was already weak because
his left arm was already wounded. 45
The statements of Venancio Identifying Dominador Molo as his assailant to Alejandro,
his son, and Roman, his neighbor are dying declarations. Alejandro Gapisa testified:
xxx xxx xxx
Q What was the position when you found him there?
A He was sitting.
Q What else if any did you observe of your father?
A When I came up he said, "Ando I have wounds
because I was boloed by Boslo. "
Q What was his actual physical situation when he uttered
these words?
A He was already weak, his body was weak.
Q How did you observe that he was already very weak,
that he was already weak physically?
A Because his wounds are big and many.
Q Was it bleeding?
A It was bleeding but the flow of the blood had declined
since they had been drained of blood.
Q In your observation was he dying or not?

A He was about to die.

Q Now, since he had wounds what did you do with these
injuries?
A Upon arrival I tied his wounds.
Q Which injuries did you bind, what did you tie?
A The wounds in the arm because it was dangling.
Q Which arm the left or the right?
A The left.
Q What about the right arm?
A It had also many wounds.
Q What was your father doing there, in that kitchen?
A He was sitting.
Q Was he doing anything else from sitting ?
A I think he was defecating as a result of the pain.
Q Did he have his pants on?
A Yes. 46
Ad Roman Mangaring declared:
xxx xxx xxx
A I was talking to him as to who boloed him.
Q And his answer to you was Boslo?
A Yes.
Q He called his assailant as Boslo?
A Yes. 47

Considering the nature and extent of the wounds, eight in all, Venancio must have
realized the seriousness of his condition and it can therefore be inferred that he made
the incrimination under the conciousness of impending death, 48 which, in fact,
supervened barely 4-1/2 hours after he was boloed.
In resume then the credible and unimpeached testimonies of the victim's widow,
Simeona Gapisa, who was an eye-witness to the fatal incident, and that of Alejandro
Gapisa, the victim's son, and Roman Mangaring, a neighbor, who both testified on
the ante-mortem statements of the victim, establish the guilt of accused-appellant
beyond reasonable doubt of the crime of murder qualified by treachery, and aggravated
by circumstances of dwelling, recidivism and reiteration, it appearing that accused has
been convicted by final judgment of murder, frustrated murder, grave slander, less
serious physical injuries, qualified trespass to dwelling and robbery, and, had served
sentences for said crimes.
We agree with the Solicitor General that appellant is not entitled the mitigating
circumstance of voluntary surrender. For in order that the same may be properly
appreciated in favor of the accused, it must appear that a) he had not been actually
arrested; b) he surrendered himself to a person in authority or his agent; and c) his
surrender is voluntary, which circumstances are not present in this case. 49 For appellant
admitted that on the day after the killing, police authorities surrounded his house and
arrested him. The fact that he did not try to escape or did not resist arrest after he was
taken into custody by the authorities, does not amount to voluntary surrender. 50
A word about the penalty. It appears that accused-appellant is an incorrigible criminal
with clearly anti-social proclivities against which the community has the need if not the
right, to defend itself. Where, as in this case, the reformative end of punishment seems
to have failed in amending his criminal tendencies he was convicted for frustrated
murder in Criminal Case V-542, Mindoro on September 2, 1950; murder in Criminal
Case No. 862, Romblon on July 27, 1961; grave slander in Criminal Case No. V-669,
Romblon, on June 5, 1957; less serious physical injuries, before the Municipal Court of
Romblon, Romblon in Criminal Case No. 839 on October 9, 1959; qualified by trespass
to dwelling, before the Municipal Court of Romblon, Romblon in - Criminal Case No. 845
on February 25, 1960 and robbery, before the Court of First Instance of Davao in
Criminal Case No. 9982 on March 1, 1967 the imposition of the supreme penalty, is
not only justified by the facts of this case, but is required as a measure of social
defense. Society had given accused-appellant several chances. It would seem that
compassion had not reformed him but had instead made him a hardened criminal and a
menace to his fellow men. To spare his life is to endanger the lives and properties of
others.
WHEREFORE, judgment is hereby affirmed IN TOTO, without pronouncement as to
costs.

SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. No. L-26247

March 18, 1927

JUAN
YSMAEL
&
CO.,
INC., plaintiff-appellant,
vs.
NAGEEB T. HASHIM and AFIFE ABDO CHEYBAN GORAYEB, defendants.
AFIFE ABDO CHEYBAN GORAYEB, appellant.
M.H. de Joya, Felipe Ysmael and Claudio R. Sandoval for plaintiff-appellant.
Gibbs & McDonough and J.E. Blanco for defendant-appellant.
OSTRAND, J.:
The complaint in the present case sets forth two causes of action.For its first cause of
action the plaintiff alleges, in substance, that the defendant Nageeb T. Hashim on
September 21, 1916, executed a chattel mortgage in favor of said plaintiff for the sum of
P13,160.87, with interest at 8 per cent per annum, the mortgage falling due on
September 21, 1917; that the said defendant having failed to make payment in
accordance with the terms agreed upon, the chattel mortgage was foreclosed and the
mortgage property sold by the sheriff on January 15, 1921; that the proceeds of the sale
amounted to the sum of P2,100 only, thus leaving a balance of P11,060.87, which, with
thecorresponding interest at the rate of 8 per cent per annum from September 21, 1916,
until January 9, 1925, now amounts to the sum of P19,134.32, for which amount
judgment is prayed.
For the second cause of action, the plaintiff alleges that the defendant Nageeb T.
Hashim has been indebted in the sum of P14,646.47 to the Hashim Commercial &
Trading Company, Ltd., a limitedcopartnership, organized under the laws of the
Philippine Islands and that, for good and valuable consideration, the said Hashim
Commercial & Trading Company, Ltd., assigned the amount due it on saidindebtedness
to the plaintiff on October 3, 1921, together with its other bills receivable, fixtures, cash
on hand in banks, and its entire stock of goods; that the plaintiff has in vain demanded
payment from the defendants and now asks judgment against them for said sum of
P14,060.47. The plaintiff also prayed for a writ of attachment of the property of the
defendants, which prayer was granted.

The defendant Hashim in his answer admits all of the allegations of the complaint and
consents to the rendition of the judgment in conformity therewith. The defendant Afife
Abdo Cheyban Gorayeb in her answer admits that the plaintiff is a corporation duly
organized and existing under the laws of the Philippine Islands and that thedefendants
are huband and wife, but deny all other allegationscontained in the complaint and set up
as a special defense that the action is the result of a conspiracy between Hashim and
his relations, the stockholders is Juan Ysmael & Co., Inc., to defraud her of the alimony
granted her in civil case No. 19115 of the Court of First Instance of Manila. She also
alleges that she has suffered damages in the sum of P20,000 by reason of the
preliminary attachment upon said real property belonging to her exclusively.
Upon trial the Court of First Instance rendered judgment in favor of the plaintiff for the
full amount demanded under the first cause of action, but dusmissed the second cause
of action on the ground that the plaintiff had failed to show that the credit upon which
said cause of action is based had been legally assigned to it. Both the plaintiff and the
defendant Gorayeb appealed from this judgment.
The plaintiff-appellant assigns as error the finding of the trialcourt that the indebtedness
of the defendant Nageeb T. Hashim to the Hashim Commercial & Trading Co., Ltd., in
the amount of P14,646.47, was assigned by the latter to the Asia Banking Corporation
and not to the plaintiff Juan Ysmael & Co., Inc., and that the court likewise erred in
dismissing the second cause of action alleged in the complaint. This contention is
principally based on a resolution of the stockholders of the Hashim Commercial &
Trading Co., Ltd., adopted on October 3, 1921, the last three paragraphs of which reads
as follows:
Whereas, Messrs. Juan Ysmael & Co., Inc., owners of 1678 shares of the stock
of this company, have arranged for the suspension of the foreclosure
proceedings began as mentioned above, and agree to assume the obligation of
this company with the Asia Banking Corporation as stated in the deed dated
March 8th, 1921, on condition that this company transfer to Juan Ysmael & Co.,
Inc. its entire stock of goods, cash on hand and in banks, bills receivable,
fixtures, and to have access to the books whenever required by them;
Now, therefore, be it resolved that Mr. A. T. Hashim, President and General
Manager of this company, be and hereby is, authorized in an irrevocable manner
to transfer in favor of Messrs. Juan Ysmael & Co., Inc., its entire stock of goods,
cash on hand and in banks, bills receivable, fixtures and to have access to the
books whenever required by them; and be it further.
Resolved that the said Mr. A. T. Hashim be and hereby is authorized in an
irrevocable manner to execute, acknowledge, and deliver all such documents

and intruments in writing as may be necessary to effectuate the foregoing

purpose.
It does not appear that the assignment authorized by this resolution was ever made and
on November 2, 1921, the same stockholders, together with Juan Ysmael & Co., Inc.,
also a stockholders, adopted another resolution which practically revoked the resolution
of October 3, 1921 and which reads as follows:
Whereas, on October 3rd, 1921, A. T. Hashim was authorized by the
stockholders of Hashim Commercial & Trading Co., Ltd., to transfer the entire
stock of the Company, cash on hand, bills receivable, and fixtures, to Juan
Ysmael & Co., Inc., and
Whereas, subsequently, it appeared advisable to A. T. Hashim that the transfer of
said stocks of goods, etc., should be made to the Asia Banking Corporation, who
would then make Juan Ysmael & Co., Inc., its agent, for the purpose of disposing
the same, and
Whereas, a transfer was made to the Asia Banking Corporation, in the form of an
agreement entered into between the Asia Banking Corporation, Juan Ysmael &
Co., Inc., and Hashim Commercial & Trading Co., Ltd., thru their proper
representatives, on the 31st day of October, 1921.
Now, therefore, be it resolved that the transfer made by A. T. Hashim, as
aforesaid, to the Asia Banking Corporation, of all goods, wares and merchandise,
as per said agreement, be and the same approved, and transfer ratified.
As will be seen the only assignment actually effected was that to the Asia Banking
Corporation. The court below was, therefore, justified in dismissing the second cause of
action and if so, the plaintiff's second assignment of error to the effect that the bond in
the sum P20,000 fixed by the court below for the discharge of the writ of attachment
was inadequate, is also without merit. We may say in passing that the authorities cited
in support of the first assignment of error have reference to equitable assignments and
are not in point. Upon the facts shown by the record, Juan Ysmael & Co., Inc. might,
perhaps, have compelled the Hashim Commercial & Trading Co. to execute an
assignments of the credit in controversy, byt it does not follow that the same facts would
constitute a valid assignment as against third parties and that the prospective assignee
may maintain an action against the debtor for the collection of the credit without a formal
assignment of such dredit. The debtor has the right to demand that the person who
sues him for the debt shall be the real party in interest and shall show a valid title to the
chose in action; a mere equitable right to the assignment thereof is not sufficient. Both
under article 51 of the Code of Commerce and under paragraph 6 of article 1280 of the
Civil Code, a formal assignment of a credit of over three hundred pesos must be in

writing. The formalities for sales of choses in action are governed by paragraph 4 of
section 335 of the Code of Civil Procedure.
The defendant-appellant makes the following assignments of error:
I. The trial court erred in rendering judgment upon the first cause of action in
favor of the plaintiff and against the defendant and appellant, jointly and
severally, with her husband A. T. Hashim for the sum of P19,134.32, with interest
on P11,060.87 thereof at 8 per cent per annum from the 10th day of
January,1925.
II. The trial court erred in prohibiting appellant from inquiringinto the details of the
account set forth in Exhibit 3.
III. The trial court erred in refusing to receive the testimony of the defendant N. T.
Hashim, that of A. T. Hashim, and that of K. N.Hemady in the former action No.
19569 (G. R. No. 21345).
IV. The trial court erred in preventing defendant and appellant from representing
proofs in support of the allegations of her answer and special defenses.
There is some merit in all of these assignments, except the third. The court below
undoubtedly erred in denying the defendant-appellant the opportunity to inquire into the
sources of the entries found in the plaintiff's books of account in relation to the
indebtedness of the defendants; the fact that such sources might have been examined
in civil case No. 19569 of the Court of First Instance of Manila cannot be regarded as a
bar to a reasonable inquiry into the character of the debt in the present case. The issues
in the two cases are entirely different; the former case dealt with the validity of a chattel
mortgage, while in the present case, wer are dealing with the amount of the defendant's
indebtedness to the plaintiff. For much the same reasons, the defendant-appellant
should have been permitted to present evidence in support of her special defense of
conspiracy.
The third assignment of error cannot be sustained. In offering in evidence the testimony
given by Mr. Hemady and the Hashims in the earlier case, the defendant-appellant did
not claim that said testimony contained admissions against interest by the parties to the
action or their agents; if such had been the case, the testimony would have been
admissible without the laying of a foundation and without the witnesses having testified
in the case at bar. But the purpose of the offer of the testimony was evidently to
impeach the testimony of the same witnesses in the present case and if so, a
foundation should have been laid by calling the attention of the witnesses to the former
statements so as to give them opportunity to explain before the statements were offered
in evidence.

In discussing their first assignment of error, counsel for the defendant-appellant insist
that, taking into consideration the facts of the case and the circumstances preceeding
the same, it is obvious that the case is "fraudulent and that even if the indebtedness
claimed were over a true indebtedness, either the same had been paid or payment
thereof waived." This contention is not entirely without foundation and though we cannot
fully agree with counsel, we do think that, in view of the very apparent unreliability of
some of the oral evidence presented, the plaintiff's recovery on its first cause of action
should be limited to the amount shown by its books of account.
On December 31, 1924, the plaintiff's ledger showed a balance of P12,238.02 against
the defendant Hashim, and it does not appear that he has incurred any further
indebtedness to the plaintiff since that date. The plaintiff explains that the amount
claimed in excess of the sum shown by the ledger represents interest at the rate of 8
per centper annum, but under the circumstances of the case, we cannot give much
weight to this explanation. It clearly appears that the chattel mortgage debt, upon which
the plaintiff's first cause of action is based, is included in the ledger account and it may
properly beconsidered as merged therein. It also appears that the account was
balanced at the end of the years 1920, 1922 and 1924, and considering the fact that the
plaintiff corporation is a well conducted business organization, it seems rather
improbable that, in striking its book balances, it would have overlooked the important
item of interest if any interest on the book account in question had been agreed upon.
The judgment appealed from is, therefore, modified by reducing the plaintiff's recovery
to the sum of P12,238.02, with interest at the rate of 6 per cent per annum from January
13, 1925, the date of the filing of the complaint. In all other respects said judgment is
affirmed without costs in this instance. So ordered
EN BANC
G.R. No. 26708

September 29, 1927

THE PEOPLE OF THE PHILIPPINE

RESABAL, Defendant-Appellant.
Melquiades
G.
Ilaw
and
Attorney-General Jaranilla for appellee.

ISLANDS, Plaintiff-Appellee,

Vicente

Sotto

for

vs.ALEJO

appellant.

VILLAMOR, J.:
The evidence shows, as an indisputable fact, that in the early morning of April 25, 1926,
one Primo Ordiz died at his own home in the barrio of Bogo, municipality of Maasin,
Leyte, form the effects of an internal hemorrhage caused by a sharp wound in the left
lung,
as
appears
from
the
death
certificate,
marked
Exhibit
A.chanroblesvirtualawlibrary chanrobles virtual law library

As a consequence of this, an information was filed with the Court of First Instance of
Leyte in Maasin, reading as follows:
That on or about April 25, 1926, in the municipality of Maasin, Province of Leyte,
Philippine Islands, the said accused, willfully, unlawfully and criminally, with treachery
and evident premeditation, conspiring amongst themselves and acting in common
agreement and taking advantage of nocturnity, mutually aiding each other, opened the
window and killed Primo Ordiz by means of a shot from a 'Smith' 38 caliber revolver,
inflicting a wound in the upper part of the left nipple, which produced the instant death of
said Primo Ordiz.chanroblesvirtualawlibrary chanrobles virtual law library
Contrary to law.
The judge who tried the case, after having carefully analyzed the evidence, reached the
conclusion that the crime committed by the accused Alejo Resabal is that of murder,
provided for and penalized in article 403 of the penal Code, with the aggravating
circumstances of evident premeditation, nocturnity and dwelling, and imposed on the
accused the death penalty, with the accessories of article 53 in case of pardon, and to
pay the deceased's heirs the sum of P1,000 by way of indemnity, with he costs of the
action. He also ordered that the present case be brought to this court for review, as
provided
for
in
section
50
of
General
Orders
No.
58.chanroblesvirtualawlibrary chanrobles virtual law library
Counsel for the defense alleges that the trial court erred in not ignoring Glicerio Orit's
testimony, and in no acquitting the accused Alejo Resabal on the ground of reasonable
doubt.chanroblesvirtualawlibrary chanrobles virtual law library
The Attorney-General in turn asks that the judgment rendered, being in accordance with
the evidence and the law, be affirmed with the costs against the
appellant.chanroblesvirtualawlibrary chanrobles virtual law library
Glicerio Orit testified that on the morning of April 25, 1926, the accused, armed with a
revolver, invited him to Primo Ordiz's house in order to kill the latter, and on arriving at
said house, the accused went into the ground, approached one of the windows of the
house less than a meter and a half in height, opened it and looked in. At that moment
the witness left the place, and at a distance of 15 brazas heard an explosion. Glicerio
Orit's testimony as to the explosion is corroborated by the declaration of the boy Jose
Ordiz, who slept with his uncle Primo Ordiz, to the effect that early in the morning of that
day he was awakened by the noise of an explosion and saw his uncle Primon Ordiz
vomiting blood and unable to speak.chanroblesvirtualawlibrary chanrobles virtual law
library

It is unquestionable, from the testimony of these two witnesses and the result of the
autopsy, and above all from the finding of the revolver Exhibit B, that the weapon
exhibited at the trail of the case. This revolver was hidden by the accused on the land
cultivated by the witness Carmelo Ordiz, to whom the accused revealed it, and who,
through fear of the police, transferred it to the neighboring lot, burying it at the foot of a
tree called "mabago." By following the directions of this witness, Carmelo Ordiz, the
chief of police, who investigated the case, found the revolver wrapped in two pieces of
cloth Exhibits C and C-1. The revolver was loaded with two bullets and an empty shell,
and had a rusty barrel. It must be noted that Exhibit C-1 appears to be a piece of cloth
from a pair of drawers, and the chief of police who searched the house where the
accused lived, found a piece of a pair of drawers in a trunk that was in the kitchen. Upon
examination of said Exhibits F and C-1 by this court, it was found that these two pieces
of cloth Exhibit F and C-1 made a complete pair of drawers, all of which shows that the
accused tore the piece of cloth Exhibits C-1 from an old pair of drawers in order to wrap
up the revolver before putting it in the place indicated by the witness Carmelo
Ordiz.chanroblesvirtualawlibrary chanrobles virtual law library
This witness testified, furthermore, that on the night of April 24, 1926, the accused
believing him to be still an enemy of the deceased Primo Ordiz, and showing him the
revolver Exhibit B, invited him to accompany him to do away with Primo Ordiz. On the
other hand, the witness Vicente Ambalong corroborates Glicerio Orits testimony to the
effect that early in the morning of April 25, 1926, the accused went to the house where
the latter was sleeping to awaken him, and that he then saw the accused on the
staircase, calling to said Glicerio Orit.chanroblesvirtualawlibrary chanrobles virtual law
library
And what is the motive of the crime? According to the evidence presented by the
prosecution, some twenty days before the incident the accused had a disagreement
with the deceased because of the carabao that destroyed some coconut trees
belonging to the deceased Primo Ordiz. The accused requested the deceased to return
the carabao that was under his care, but the deceased refused to do so before he was
paid the value of the trees destroyed. This naturally produced resentment, which,
among country people, is sufficient cause for the commission of the act charged in the
information.chanroblesvirtualawlibrary chanrobles virtual law library
The defense of alibi set up by the accused is not, in our opinion, sufficient to overthrow
the evidence of the prosecution; for taking into consideration the short distance between
the deaceased's house and that in which the accused slept on the night of the incident,
the accused could easily have gone out of his house and returned later, without having
been noticed by his companions in the house, namely, his wife, his mother-in-law, and
his sister-in-law, aside from the natural interest these have in testifying in the accused's
favor.chanroblesvirtualawlibrary chanrobles virtual law library

The defense argues that Glicerio Orit is not a credible witness, because of his having
been excluded from the information to be used as a witness for the prosecution; and,
because, moreover, of the contradiction in his testimony at the preliminary investigation
and during the trial. We are of the opinion that the mere fact of having been excluded
from the information to be used as a witness for the Government, does not prevent this
witness from telling the truth in this case, especially in the absence of proof showing the
interest he might possibly have in testifying against the accused. Neither is the apparent
contradiction which may be noted in his declarations before the court of the justice of
the peace, and before the court of first instance sufficient to discredit his testimony, for
the simple reason that this witness was not given ample opportunity, by a reading to him
of his declarations before the court of the justice of the peace, to explain the
discrepancies noted by counsel for the accused. The mere presentation of Exhibit 1,
without said declaration having been read to the witness while he testified in the Court
of First Instance, is no ground for impeaching his testimony. (U. S. vs. Baluyot, 40 Phil.,
385, 406.)chanrobles virtual law library
The defense also impeaches Carmelo Ordiz's testimony considering the invitation which
the accused extended to him as improbable, knowing that he was a cousin of the
deceased Primo Ordiz. Under ordinary circumstances, such an attitude would appear
improbable, but not so if it is considered that the accused invited the witness in the
belief that the latter was still an enemy of the deceased, on account of certain
disagreements they had over some land.chanroblesvirtualawlibrary chanrobles virtual
law library
The defense also contends that the conduct of the accused in going with his family to
the deceased's house on the morning of April 25, 1926, helping in the preparations for
the burial, is incompatible with his being a criminal. It is, indeed, an old belief that the
fear of the suspected party to touch the corpse was a sign of guilt. But experience has
shown that some criminals have gone to the extreme that the accused did, to avoid all
suspicion of guilt.chanroblesvirtualawlibrary chanrobles virtual law library
The evidence in the record shows that guilt of the accused beyond a reasonable doubt,
and he deserves the penalty provided for in article 403 of the Penal Code. The crime
committed is murder, qualified by treachery for, in the commission of the crime, the
accused employed ways, means, and forms that tended directly and especially to
assure, it, without risk to his person from any defense the assaulted party might
make.chanroblesvirtualawlibrary chanrobles virtual law library
The trial court imposed the death penalty on the accused, by reason of the aggravating
circumstances of evident premeditation, nocturnity, and dwelling, without any mitigating
circumstances to offset them. On this point the opinion of the court is divided, with the
result that we cannot impose on the accused the maximum penalty, or death, in
accordance with Act No. 3104, because the vote of the members of the court who took

part in the discussion of the case, as to the justice of the imposition of the death penalty
was not unanimous. And, it being so, it is unnecessary to discuss in detail the presence
of the said aggravating circumstances.chanroblesvirtualawlibrary chanrobles virtual law
library
In virtue whereof, we are of the opinion, and so hold, that the accused is guilty of the
crime of murder, committed with treachery, on the person of Primo Ordiz, and with the
modification of the judgment on review, the penalty of cadena perpetua is imposed on
the accused, with the accessories of Article 54 of the Penal Code, the judgment of the
trial court being affirmed in all other respects, with the costs against the appellant. So
ordered.chanroblesvirtualawlibrary chanrobles virtual law library
Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION

G.R. No. 98376 August 16, 1991

PEOPLE
OF
THE
PHILIPPINES, petitioners,
vs.
HON. BAYANI S. RIVERA, Judge, Branch 129 , Regional Trial Court of Kalookan
City, and WILFREDO L. EMBRANO, respondent.
The Solicitor General for petitioner.
Eduardo S. Rodriguez for private respondent.

NARVASA, J.:p
The special civil action of certiorari at bar instituted in this Court to annul an order
rendered by the Regional Trial Court at Kalookan City, Branch 129, in a prosecution for
arson docketed in that Court as Criminal Case No. 28820 (87).
Accused in that case of arson is Wilfredo L. Sembrano. It is the prosecution's theory that
he wilfully caused the fire in the early morning of May 21, 1987 which totally burned and
destroyed the second and third floors of the "I Love You Restaurant and Sauna Bath"
owned by Juanita L. Tan, located at No. 2 L. Bustamante St. Kalookan City. 1

Among the witnesses presented by the Government to demonstrate Sembrano's

culpability was Benjamin Lee, a room boy of the restaurant and bath. Lee testified on
direct examination at the hearing of December 8, 1987. His testimony was essentially
that Sembrano had run out of the VIP room where the fire had started and refused to
heed his (Lee's) call to stop. Lee took the witness stand again on April 26, 1987 during
which he was cross-examined by defense counsel, gave additional evidence on redirect
examination, was again questioned on recross-examination by the same defense
counsel, and thereafter allowed to step down. 2
The prosecution completed presentation of its evidence-in-chief in due course. But
before it could rest its case, and two (2) months or so after Benjamin Lee had
completed his testimony, the defendant's original counsel, Benjamin Formoso, withdrew
his appearance and was substituted by another attorney, Eduardo S. Rodriguez. 3The
latter then filed a motion on June 8, 1988 to recall Benjamin Lee for further
examination. 4 The ground relied upon by Atty. Rodriguez was simply that after he had
reviewed the record of Benjamin Lee's testimony, he came to the conclusion that " there
seems to be many points and questions that should have been asked but were not
profounded (sic) by the other defense counsel who conducted.. (the cross-examination).
It was on this averment, and counsel's reference to "the gravity of the offense charge
(sic)" and the need "to afford the accused full opportunity to defend himself," that Lee's
recall for further cross examination was sought to be justified. Over objections of the
prosecution, the Court 5 granted the motion.
Efforts were thereafter exerted to cause witness Benjamin Lee to again appear before
the Court for further cross-examination. These efforts met with no success; and the trial
had to be postponed several times. It appears that Lee had terminated his employment
and moved elsewhere without indicating his new address.
So, on October 1, 1990 the private prosecutor filed a "Manifestation and Motion"
drawing attention to the inability to procure the re-appearance of witness Lee for which
"the prosecution could not be held liable," and to the fact that "Lee has already been
thoroughly examined by the former defense counsel," and praying upon these premises
"that the farther examination of Benjamin Lee be dispensed with and ... the
prosecution ... allowed to terminate the presentation of its evidence."
By Order dated October 2, 1990, 6 the Trial Court denied the motion to dispense with
the recall of Benjamin Lee. In fact, it ordered the testimony of Benjamin Lee for the
prosecution xx stricken off the record for lack of complete cross-examination" because
the witness could no longer be found, and "the failure of counsel for the accused to
further cross-examine the witness is not the fault of the defense. 7
In the same order, the Court also set the "reception of further evidence for the
prosecution, if any, ... on October 23, 1990 xx as earlier scheduled." Subsequently, it

denied the private prosecutor's motion for reconsideration of the order. 8 Hence, the
action at bar, instituted by the Office of the Solicitor General.
The writ of certiorari prayed for will issue. The Trial Court acted with grave abuse of
discretion in authorizing the recall of witness Benjamin Lee over the objections of the
prosecution, and in later striking out said witness' testimony for want of further crossexamination.
There is no doubt that a Trial Court has discretion to grant leave for the recall of a
witness. This is clear from a reading of Section 9, Rule 132 of the Rules of Court, as
amended, 9 viz.:
SEC. 9. Recalling witness. After the examination of a witness by both
sides has been concluded, the witness cannot be recalled without leave of
the court. The court will grant or withhold leave in its discretion, as the
interests of justice may require.
But obviously that discretion may not be exercised in a vacuum, as it were, entirely,
isolated from a particular set of attendant circumstances. The discretion to recall a
witness is not properly invoked or exercisable by an applicant's mere general statement
that there is a need to recall a witness "in the interest of justice," or "in order to afford a
party full opportunity to present his case," or that, as here, "there seems to be many
points and questions that should have been asked" in the earlier interrogation. To regard
expressed generalities such as these as sufficient ground for recall of witnesses would
make the recall of witness no longer discretionary but ministerial. Something more than
the bare assertion of the need to propound additional questions is essential before the
Court's discretion may rightfully be exercised to grant or deny recall. There must be a
satisfactory showing of some concrete, substantial ground for the recall. There must be
a satisfactory showing on the movant's part, for instance, that particularly identified
material points were not covered in the cross-examination, or that particularly described
vital documents were not presented to the witness whose recall is prayed for, or that the
cross-examination was conducted in so inept a manner as to result in a virtual absence
thereof. Absent such particulars, to repeat, there would be no foundation for a trial court
to authorize the recall of any witness.
In the case at bar, the respondent Trial Court granted the defendant's motion for recall
on nothing more than said movant's general claim that certain questions unspecified,
it must be stressed had to be asked. In doing so, it acted without basis, exercised
power whimsically or capriciously, and gravely abused its discretion.
So, too, the respondent Court acted whimsically, capriciously, and oppressively, in other
words, gravely abused its discretion, in ordering the striking out of the entire testimony
of Benjamin Lee after it appeared that he could no longer be found and produced for

further examination. In the first place, the Court acted unilaterally, without any motion to
this effect by the defense and thus without according the prosecution a prior opportunity
to show why the striking out should not be decreed. More importantly, the striking out
was directed without any showing whatever by the defense of the indispensability of
further cross-examination, what it was that would have been elicited by further crossexamination rendering valueless all that the witness had previously stated. It should be
stressed that Lee was subjected both to cross-examination and recross-examination by
former counsel of the accused Sembrano. Obviously the latter was satisfied that there
had been sufficient cross-examination of the witness. Absence of cross-examination
may not therefore be invoked as ground to strike out Lee's testimony (as being
hearsay). And there is no showing whatever in this case that it was the prosecution that
placed the witness beyond the reach of the Court, much less of the expected nature or
tenor of his additional testimony which, because not presented, would necessarily
cause the evidence earlier given by Lee to become hearsay or otherwise incompetent,
and therefore, amenable to being stricken from the record.
WHEREFORE, the petition is GRANTED and the respondent Court's challenged Order
dated October 2, 1990 is NULLIFIED AND SET ASIDE, with costs against private
respondent.
IT IS SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

THIRD DIVISION
G.R. No. 76792 March 12, 1990
RESURRECCION
BARTOLOME,
ET
AL., petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT (now Court of Appeals) and HEIRS OF
SPOUSES BERNABE BARTOLOME and URSULA CID, respondents.
Rafael B. Ruiz for petitioners.
E.L. Peralta for private respondents.

FERNAN, C.J.:

This is a petition for review on certiorari of the decision 1 of the then Intermediate
Appellate Court "adjudicating the whole Lot No. 11165 in favor of" Bernabe Bartolome
and Ursula Cid, thereby reversing the decision 2 of the Regional Trial Court of Ilocos
Norte, Branch XII at Laoag City. The dispositive portion of the latter decision states:
WHEREFORE, judgment is hereby rendered adjudicating the eastern
portion to the heirs of the late Epitacio Batara measuring 27 meters from
south to north by 32 meters from east to west, with an area of 864 square
meters, bounded on the east by the Provincial Road; on the north by the
heirs of Rufo Manuel; on the west by a portion of the same Lot No. 11165;
and on the south by Lot No.11164; the remaining portion to the heirs of
Doroteo Bartolome, bounded on the east by the portion of Lot No. 11165
adjudicated to the heirs of Epitacio Batara and heirs of Rufo Manuel; on
the north by Eugenio Andrada; on the west by Nieves Caday or Lot No.
11166; and on the south by Lot No. 11164.
Likewise, the heirs of Epitacio Bartolome Batara are hereby ordered to
reserved (sic) the road right of way for the necessary expansion of the
road adjacent to the eastern side of said lot, subject, however, to just
compensation.
Once this Decision becomes final, let the corresponding Decree be issued
accordingly.
IT IS SO ORDERED.
The record shows that a 725-square meter portion of said Lot No. 11165 located in
Barrio 11, Laoag, Ilocos Norte, was first declared as his property by Epitacio Batara
under tax declaration No. 5708 dated May 23, 1906. 3The property was described
therein as bounded on the north by the property of Pedro Manuel, on the east by the
road, on the south by the property of Doroteo Bartolome and on the west by the
property of one named Esteban, and as having "una casa de tabla de dimension 5 x 4
metros" as improvement. Tax declaration No. 5708 was superseded by tax declaration
No. 37576 labelled as a "revision of declaration of real property (urban)" dated April 23,
1914. 4 The residential lot described in the latter tax declaration contained an area of
772 square meters with a "casa" and a "granero" as improvements thereon.
Epitacio Batara and his wife, Maria Gonzales, had two children: Catalina and Pedro.
The latter died a bachelor and without issue. Catalina, who married someone surnamed
Bartolome, bore five children named Isabela, Tarcila, Calixto, Resurreccion and
Ruperta. In 1912, before he left Laoag to settle in Culalabo, Gamo (Burgos), Isabela,
Epitacio entrusted the lot to his cousin, Doroteo Bartolome, who owned the lot bounding
Epitacio's property on the south. 5 Maria Gonzales remained in the lot for sometime.

When she later followed Epitacio to Isabela, she allowed Doroteo Bartolome to continue
taking charge of the property. 6
In 1916, Epitacio Batara died in Isabela. Five years later or in 1921, Maria Gonzales
and her grandchildren, Calixto and Resurreccion Bartolome, returned to Laoag. As they
found that the house on their lot was destroyed by fire, they boarded in someone else's
house. Calixto constructed a bamboo fence around his grandfather's lot and he and
Resurreccion, who was studying in Laoag, cleaned it. Resurreccion went back to
Isabela after Maria Gonzales' death in 1926. 7 It was also in that year when Doroteo
Bartolome, to whom Epitacio had entrusted his land, migrated to Davao City. Doroteo
died there two years later. 8
Thereafter, the Director of Lands instituted cadastral proceedings over the land involved
herein (Cadastral Case No. 53). On October 23, 1933, Ursula Cid, the widow of the son
of Doroteo Bartolome, Bernabe, who died in 1928, 9 filed an answer in Cadastral Case
No. 53, claiming ownership over Lot No. 11165 with an area of 1660 square meters,
described as bounded on the north by the property of Rufo Manuel and Eugenia
Andrada, on the east by the provincial road, on the south by the property of Doroteo
Bartolome, and on the west by the property of Nieves Caday and Eugenia Andrada, and
with a house as improvement thereon. The land was allegedly acquired by Ursula Cid
through inheritance from Doroteo Bartolome, the father of Ursula's deceased husband,
Bernabe. 10
More than three months later or on January 30, 1934, Resurreccion Bartolome also filed
an answer in the same cadastral case claiming ownership over a portion of Lot No.
11165 with an area of 864 square meters described as bounded on the north by the
property of the heirs of Rufo Manuel, on the east by Blumentritt Street, on the south by
the property of Doroteo Bartolome, and on the west by the property of Bernabe
Bartolome. No improvements on the lot were indicated in the answer which also stated
that said portion of Lot No. 11165 was acquired by claimant Resurreccion Bartolome "by
inheritance from my grandfather and grandmother . . . Epitacio Batara and Maria
Gonzales." 11
From then on, no further proceedings were held in the cadastral case. Meanwhile, in
1934, Resurreccion Bartolome verbally entrusted the portion she had claimed to Maria
Bartolome, whom she later described as the daughter of Doroteo Bartolome. 12
In 1939, Ursula Cid and her children also migrated to Davao City leaving their house on
Lot No. 11165 to a lessee, Severino Ramos. Ursula and her son, Dominador Bartolome,
instructed Maria Bartolome, the sister of Bernabe, to receive the rentals for the house
from Severino Ramos. 13 Maria Bartolome also paid the taxes on the property until
1948, when Dominador took over the task. 14 But on September 22, 1950, Maria
Bartolome, as "administrator of the parcel of land situated at Bo. 11, Laoag, Ilocos

Norte," leased Lot No. 11165 to the Philippine United Trading Co., Inc. 15 The rentals for
the property were paid by the lessee to Dominador Bartolome until the edifice housing
the company was burned down in 1968. 16 Resurreccion Bartolome, who had been
residing in Isabela, was given by Maria Bartolome a small amount, which could have
been about P50, in consideration of the lease contract. 17
In June, 1968, the Court of First Instance of Ilocos Norte sent out
notices for the "continuation of the hearing" on June 13, 1968 in Cadastral Case No.
53. 18 It should be remembered, however, that from the time Ursula Cid and
Resurreccion Bartolome filed their answers to the petition in the cadastral case, there
had been no progress in the proceedings.
A year later or in 1969, Maria J. Bartolome filed in Cadastral Case No. 53 a "motion to
admit answer in intervention," alleging that she is one of the children of Doroteo
Bartolome and that she and her co-heirs had been excluded in Ursula Cid's answer to
the
petition.
She
therefore
prayed
that
the
answer
of Ursula Cid be amended so as to include the rightful heirs of Doroteo Bartolome. 19 At
the same time, she filed an answer claiming co-ownership over Lot No. 11165 with
Clemente, Julia and Rosario Bartolome and Ursula Cid, the widow of Bernabe. She
likewise alleged therein that she and her siblings inherited the 1660-square meter lot
from Doroteo Bartolome.20
Three months later, Ursula Cid filed a motion to amend her answer to reflect the
complete "ground or basis of acquisition" of Lot No. 11165. 21 In her amended answer,
Ursula Cid stated that she was the absolute owner of Lot No. 11165; that she had been
the possessor of Lot No. 11165 for over fifty years; that she "acquired by inheritance
from Bernabe Bartolome, who together with her, purchased the . . . lot which used to be
three adjoining lots from their respective owners;" and that Lot No. 11165 had been
declared for tax purposes in the name of her late husband Bernabe Bartolome. 22
No hearing was conducted in the case until 1974. To buttress her claim that she and her
husband purchased Lot No. 11165, Ursula Cid presented at the trial three deeds of sale:
[a] one dated March 1, 1917 showing that Bernabe Bartolome and Ursula Cid bought a
374-square meter lot for fifteen pesos from the spouses Domingo Agustin and Josefa
Manrique; 23 [b] another document dated February 18, 1913 executed by Ignacia
Manrique in favor of Bernabe Bartolome evidencing the sale of another lot also for
fifteen pesos; 24 and [c] still another deed executed by Maria Gonzales y Paguyo on
February 9, 1917 in favor of Bernabe Bartolome and Ursula Cid ceding to the latter 772
square meters of land for P103.75. 25 The last-mentioned piece of land is the one being
claimed by Resurreccion Bartolome.
On May 10, 1984, the Regional Trial Court of Ilocos Norte rendered a decision the
dispositive portion of which is quoted above. The court entertained only the answers of

Ursula Cid and Resurreccion Bartolome. It found that the lots described in Exhibits 2
and 3 presented by Ursula Cid "are not within Lot 11165" and that said exhibits "are
defective as the vendors are not the real owner(s)" of the lots described therein. As to
Exhibit 4, the court ruled that it has "no probative value as the same is incomplete and
unsigned." The court also held that Ursula Cid's possession of the land "after the
claimants had filed their respective answer(s) or after the declaration of a general
default," did not confer ownership on her because said possession was interrupted and
merely tolerated by all the parties during the pendency of the case. 26
Ursula Cid appealed to the then Intermediate Appellate Court. In its decision reversing
the lower court, the appellate court held that the deeds of sale presented by Ursula Cid
are ancient documents under Section 22, Rule 132 of the Rules of Court. It also ruled
that Ursula Cid's continuous possession of the lot from its acquisition and her exercise
of rights of ownership over it vested her with the legal presumption that she possessed
it under a just title.
Her motion for the reconsideration of said decision having been denied, Resurreccion
Bartolome filed the instant petition for review on certiorari based on two principal issues:
[a] whether the provisions of Rule 132 on ancient documents are applicable with respect
to Exhibit 4, and [b] whether acquisitive prescription runs during the pendency of a
cadastral case.
Exhibit 4 consists of three pieces of paper. The first piece is a blank sheet which
apparently serves as a cover page. The two other pages contain the handwritten
document in Ilocano stating that in consideration of the amount of P103.75, Maria
Gonzales y Paguyo sold to the spouses Bernabe Bartolome and Ursula Cid 772 square
meters of land bounded on the north by the property of Pedro Manuel, on the east by
the Bacarra road, on the south by the property of Doroteo Bartolome and on the west by
the property of Bernabe Bartolome. The third sheet or page 2 thereof contains a
warranty against eviction and other disturbances with the last three lines indicating the
date of the execution of the instrument.
According to Dominador Bartolome, he first saw Exhibit 4 in the possession of his
mother, Ursula Cid, when he was just eleven years old. He noticed that the document
had a fourth page containing the signature of Maria Gonzales and that all four pages
were sewn together. 27 However, when the document was entrusted to him by his
mother in 1947 as he was then representing the family in litigation concerning the land,
the document's fourth page was already missing. 28 He stated that his mother told him
that the fourth page was lost during the Japanese occupation while they were
evacuating from Davao City. 29
Dominador Bartolome also presented in court a sworn statement in Ilocano executed by
Ursula Cid on February 19, 1937. 30 In her statement, Ursula Cid declared that the sale

of the lot to her and her husband by Maria Gonzales was evidenced by a written
instrument; that the land had been transferred in the name of her husband; that she had
been paying taxes therefor, and that they had been in continuous possession of the land
for more than twenty years. 31
Rule 132 of the Rules of Court provides:
Sec. 22. Evidence of execution not necessary. Where a private writing
is more than thirty years old, is produced from a custody in which it would
naturally be found if genuine, and is unblemished by any alterations or
circumstances of suspicion, no other evidence of its execution and
authenticity need be given.
We agree with the appellate court that the first two requirements ordained by Section 22
are met by Exhibit 4. It appearing that it was executed in 1917, Exhibit 4 was more than
thirty years old when it was offered in evidence in 1983. 32 It was presented in court by
the proper custodian thereof who is an heir of the person who would naturally keep
it.33 We notice, however, that the Court of Appeals failed to consider and discuss the
third requirement; that no alterations or circumstances of suspicion are present.
Admittedly, on its face, the deed of sale appears unmarred by alteration. We hold,
however, that the missing page has nonetheless affected its authenticity. Indeed, its
importance cannot be overemphasized. It allegedly bears the signature of the vendor of
the portion of Lot No. 11165 in question and therefore, it contains vital proof of the
voluntary transmission of rights over the subject of the sale. Without that signature, the
document is incomplete. Verily, an incomplete document is akin to if not worse than a
document with altered contents.
Moreover, there is a circumstance which bothers the Court and makes the genuineness
of the document suspect. If it is really true that the document was executed in 1917,
Ursula Cid would have had it in her possession when she filed her answer in Cadastral
Case No. 53 in 1933. Accordingly, she could have stated therein that she acquired the
portion in question by purchase from Maria Gonzales. But as it turned out, she only
claimed purchase as a mode of acquisition of Lot No. 11165 after her sister-in-law,
Maria J. Bartolome and the other descendants of Doroteo Bartolome sought
intervention in the case and demanded their rightful shares over the property.
All these negate the appellate court's conclusion that Exhibit 4 is an ancient document.
Necessarily, proofs of its due execution and authenticity are vital. Under Section 21 of
Rule 132, the due execution and authenticity of a private writing must be proved either
by anyone who saw the writing executed, by evidence of the genuineness of the
handwriting of the maker, or by a subscribing witness. The testimony of Dominador
Bartolome on Exhibit 4 and Ursula Cid's sworn statement in 1937 34 do not fall within the

purview of Section 21. The signature of Maria Gonzales on the missing fourth page of
Exhibit 4 would have helped authenticate the document if it is proven to be genuine. But
as there can be no such proof arising from the signature of Maria Gonzales in the deed
of sale, the same must be excluded. 35
Even if Exhibit 4 were complete and authentic, still, it would substantially be infirm.
Under Article 834 of the old Civil Code, Maria Gonzales, as a surviving spouse, "shall be
entitled to a portion in usufruct equal to that corresponding by way of legitime to each of
the legitimate children or descendants who has not received any betterment." And, until
it had been ascertained by means of the liquidation of the deceased spouse's estate
that a portion of the conjugal property remained after all the partnership obligations and
debts had been paid, the surviving spouse or her heirs could not assert any claim of
right or title in or to the community property which was placed in the exclusive
possession and control of the husband as administrator thereof. 36 Hence, in the
absence of proof that the estate of Epitacio Batara had been duly settled, Maria
Gonzales had no right to sell not even a portion of the property subject of Exhibit 4.
On the issue of whether acquisitive prescription runs during the pendency of a cadastral
case, we hold, as this Court held in Cano v. De Camacho, 37 that the institution of
cadastral proceedings, or at least the publication of the notice therein issued, has the
effect of suspending the running of the prescriptive period. Hence, the appellate court
erred in ascribing acquisitive prescription in favor of Ursula Cid "up to the present." 38
Neither can Ursula Cid successfully assert that prior to the institution of the cadastral
proceedings, she and her husband had gained acquisitive prescription over the
property. Until Doroteo Bartolome migrated to Davao City in 1926, he was in possession
of the whole lot including the portion entrusted to him by Epitacio Batara. Granting that
the 1520-square meter lot Bernabe Bartolome had declared as his own in 1925 39 is
within Lot No. 11165, still, the period from 1925 until the filing of the cadastral case in
1933 failed to give him an advantage. It is short of the 10-year actual, adverse and
uninterrupted period of possession mandated by Section 41 of the Code of Civil
Procedure in order that a full and complete title could be vested on the person claiming
to be the owner of a piece of land.
Furthermore, while it is true that the property had been declared for tax purposes by
Bernabe Bartolome and that, subsequent to his death, taxes thereon were paid in the
name of his son, Dominador, 40 ownership thereof had not been acquired by Ursula Cid
or her heirs. Aside from the fact that said declarations and payments were made during
the pendency of the cadastral case, a tax declaration in the name of the alleged
property owner or of his predecessor-in-interest, does not prove ownership. It is merely
an indicium of a claim of ownership. 41 In the same manner, neither does the payment of
taxes conclusively prove ownership of the land paid for.

The foregoing discussion notwithstanding, the Court is unprepared to decree 824

square meters of Lot No. 11165 in favor of Resurreccion Bartolome and her co-heirs to
the estate of Epitacio Batara. The revised declaration of real property in the name of
Epitacio, which petitioners presented as Exhibit B, reveals that Epitacio Batara owned
only 772 square meters of the lot involved. Certainly, petitioner and her co-heirs may not
be entitled to an area greater than what their grandfather claimed as his own.
Similarly, what remains of Lot No. 11165 after the portion herein adjudicated to
Resurreccion Bartolome and her co-heirs has been determined, may not be granted to
the heirs of Bernabe Bartolome and Ursula Cid exclusively. The two other deeds of sale
presented as Exhibits 2 and 3 having been found worthless by the trial court as they
involve parcels of land not within Lot No. 11165 and the vendors of which were not the
real owners of the property, which findings of facts are binding on this Court, the law
mandates that the property, having been inherited from Doroteo Bartolome, must be
shared in equal portions by his children or their heirs.
WHEREFORE, the appealed decision of the then Intermediate Appellate Court is
hereby reversed and set aside.
The eastern portion of Lot No. 11165 with an area of 772 square meters is hereby
adjudicated in favor of the heirs of Epitacio Batara who are herein represented by
Resurreccion Bartolome while the remaining area of Lot No. 11165 is hereby
adjudicated in favor of the heirs of Doroteo Bartolome.
Petitioners shall pay the cost of the survey and subdivision of Lot No. 11165. No costs.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

THIRD DIVISION
G.R. No. 164273

March 28, 2007

EMMANUEL
B.
vs.
CITIBANK, N.A., (Philippines), Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:

AZNAR, Petitioner,

Before this Court is a Petition for Review assailing the Decision 1 of the Court of Appeals
(CA) in CA-G.R. CV No. 62554 dated January 30, 2004 which set aside the November
25, 1998 Order of the Regional Trial Court (RTC) Branch 10, Cebu City and reinstated
the Decision of RTC Branch 20 of Cebu City dated May 29, 1998 in Civil Case No.
CEB-16474; and the CA Resolution dated May 26, 2004 denying petitioners motion for
reconsideration.
The facts are as follows:
Emmanuel B. Aznar (Aznar), a known businessman 2 in Cebu, is a holder of a Preferred
Master Credit Card (Mastercard) bearing number 5423-3920-0786-7012 issued by
Citibank with a credit limit of P150,000.00. As he and his wife, Zoraida, planned to take
their two grandchildren, Melissa and Richard Beane, on an Asian tour, Aznar made a
total advance deposit of P485,000.00 with Citibank with the intention of increasing his
credit limit toP635,000.00.3
With the use of his Mastercard, Aznar purchased plane tickets to Kuala Lumpur for his
group worth P237,000.00. On July 17, 1994, Aznar, his wife and grandchildren left Cebu
for the said destination.4
Aznar claims that when he presented his Mastercard in some establishments in
Malaysia, Singapore and Indonesia, the same was not honored. 5 And when he tried to
use the same in Ingtan Tour and Travel Agency (Ingtan Agency) in Indonesia to
purchase plane tickets to Bali, it was again dishonored for the reason that his card was
blacklisted by Citibank. Such dishonor forced him to buy the tickets in cash. 6 He further
claims that his humiliation caused by the denial of his card was aggravated when Ingtan
Agency spoke of swindlers trying to use blacklisted cards. 7 Aznar and his group
returned to the Philippines on August 10, 1994. 8
On August 26, 1994, Aznar filed a complaint for damages against Citibank, docketed as
Civil Case No. CEB-16474 and raffled to RTC Branch 20, Cebu City, claiming that
Citibank fraudulently or with gross negligence blacklisted his Mastercard which forced
him, his wife and grandchildren to abort important tour destinations and prevented them
from buying certain items in their tour.9 He further claimed that he suffered mental
anguish, serious anxiety, wounded feelings, besmirched reputation and social
humiliation due to the wrongful blacklisting of his card. 10 To prove that Citibank
blacklisted his Mastercard, Aznar presented a computer print-out, denominated as ONLINE AUTHORIZATIONS FOREIGN ACCOUNT ACTIVITY REPORT, issued to him by
Ingtan Agency (Exh. "G") with the signature of one Victrina Elnado Nubi (Nubi) 11 which
shows that his card in question was "DECL OVERLIMIT" or declared over the limit. 12
Citibank denied the allegation that it blacklisted Aznars card. It also contended that
under the terms and conditions governing the issuance and use of its credit cards,

Citibank is exempt from any liability for the dishonor of its cards by any merchant
affiliate, and that its liability for any action or incident which may be brought against it in
relation to the issuance and use of its credit cards is limited to P1,000.00 or the actual
damage proven whichever is lesser.13
To prove that they did not blacklist Aznars card, Citibanks Credit Card Department
Head, Dennis Flores, presented Warning Cancellation Bulletins which contained the list
of its canceled cards covering the period of Aznars trip. 14
On May 29, 1998, RTC Branch 20, Cebu City, through Judge Ferdinand J. Marcos,
rendered its decision dismissing Aznars complaint for lack of merit. 15 The trial court held
that as between the computer print-out 16presented by Aznar and the Warning
Cancellation Bulletins17 presented by Citibank, the latter had more weight as their due
execution and authenticity were duly established by Citibank. 18 The trial court also held
that even if it was shown that Aznars credit card was dishonored by a merchant
establishment, Citibank was not shown to have acted with malice or bad faith when the
same was dishonored.19
Aznar filed a motion for reconsideration with motion to re-raffle the case saying that
Judge Marcos could not be impartial as he himself is a holder of a Citibank credit
card.20 The case was re-raffled21 and on November 25, 1998, the RTC, this time through
Judge Jesus S. De la Pea of Branch 10 of Cebu City, issued an Order granting Aznars
motion for reconsideration, as follows:
WHEREFORE, the Motion for Reconsideration is hereby GRANTED. The DECISION
dated May 29, 1998 is hereby reconsidered, and consequently, the defendant is hereby
condemned liable to pay the following sums of money:
a) P10,000,000.00 as moral damages;
b) P5,000,000.00 as exemplary damages;
c) P1,000,000.00 as attorneys fees; and
d) P200,000.00 as litigation expenses. 22
Judge De la Pea ruled that: it is improbable that a man of Aznars stature would
fabricate Exh. "G" or the computer print-out which shows that Aznars Mastercard was
dishonored for the reason that it was declared over the limit; Exh. "G" was printed out by
Nubi in the ordinary or regular course of business in the modern credit card industry and
Nubi was not able to testify as she was in a foreign country and cannot be reached by
subpoena; taking judicial notice of the practice of automated teller machines (ATMs)
and credit card facilities which readily print out bank account status, Exh. "G" can be
received as prima facie evidence of the dishonor of Aznars Mastercard; no rebutting

evidence was presented by Citibank to prove that Aznars Mastercard was not
dishonored, as all it proved was that said credit card was not included in the blacklisted
cards; when Citibank accepted the additional deposit of P485,000.00 from Aznar, there
was an implied novation and Citibank was obligated to increase Aznars credit limit and
ensure that Aznar will not encounter any embarrassing situation with the use of his
Mastercard; Citibanks failure to comply with its obligation constitutes gross negligence
as it caused Aznar inconvenience, mental anguish and social humiliation; the fine prints
in the flyer of the credit card limiting the liability of the bank to P1,000.00 or the actual
damage proven, whichever is lower, is a contract of adhesion which must be interpreted
against Citibank.23
Citibank filed an appeal with the CA and its counsel filed an administrative case against
Judge De la Pea for grave misconduct, gross ignorance of the law and incompetence,
claiming among others that said judge rendered his decision without having read the
transcripts. The administrative case was held in abeyance pending the outcome of the
appeal filed by Citibank with the CA.24lawphi1.net
On January 30, 2004, the CA rendered its Decision granting Citibanks appeal thus:
WHEREFORE, the instant appeal is GRANTED. The assailed order of the Regional
Trial Court, 7th Judicial Region, Branch 10, Cebu City, in Civil Case No. CEB-16474, is
hereby SET ASIDE and the decision, dated 29 May 1998 of the Regional Trial Court,
7th Judicial Region, Branch 20, Cebu City in this case is REINSTATED.
SO ORDERED.25
The CA ruled that: Aznar had no personal knowledge of the blacklisting of his card and
only presumed the same when it was dishonored in certain establishments; such
dishonor is not sufficient to prove that his card was blacklisted by Citibank; Exh. "G" is
an electronic document which must be authenticated pursuant to Section 2, Rule 5 of
the Rules on Electronic Evidence 26 or under Section 20 of Rule 132 of the Rules of
Court27 by anyone who saw the document executed or written; Aznar, however, failed to
prove the authenticity of Exh. "G", thus it must be excluded; the unrefuted testimony of
Aznar that his credit card was dishonored by Ingtan Agency and certain establishments
abroad is not sufficient to justify the award of damages in his favor, absent any showing
that Citibank had anything to do with the said dishonor; Citibank had no absolute control
over the actions of its merchant affiliates, thus it should not be held liable for the
dishonor of Aznars credit card by said establishments. 28
Aznar filed a motion for reconsideration which the CA dismissed in its Resolution dated
May 26, 2004.29

Parenthetically, the administrative case against Judge De la Pea was activated and on
April 29, 2005, the Courts Third Division 30 found respondent judge guilty of knowingly
rendering an unjust judgment and ordered his suspension for six months. The Court
held that Judge De la Pea erred in basing his Order on a manifestation submitted by
Aznar to support his Motion for Reconsideration, when no copy of such manifestation
was served on the adverse party and it was filed beyond office hours. The Court also
noted that Judge De la Pea made an egregiously large award of damages in favor of
Aznar which opened himself to suspicion. 31
Aznar now comes before this Court on a petition for review alleging that: the CA
erroneously made its own factual finding that his Mastercard was not blacklisted when
the matter of blacklisting was already a non-issue in the November 25, 1998 Order of
the RTC; the RTC found that Aznars Mastercard was dishonored for the reason that it
was declared over the credit limit; this factual finding is supported by Exh. "G" and by
his (Aznars) testimony; the issue of dishonor on the ground of DECL OVERLIMIT,
although not alleged in the complaint, was tried with the implied consent of the parties
and should be treated as if raised in the pleadings pursuant to Section 5, Rule 10 of the
Rules of Civil Procedure;32 Exh. "G" cannot be excluded as it qualifies as an electronic
evidence following the Rules on Electronic Evidence which provides that print-outs are
also originals for purposes of the Best Evidence Rule; Exh. "G" has remained complete
and unaltered, apart from the signature of Nubi, thus the same is reliable for the
purpose for which it was generated; the RTC judge correctly credited the testimony of
Aznar on the issuance of the computer print-out as Aznar saw that it was signed by
Nubi; said testimony constitutes the "other evidence showing the integrity and reliability
of the print-out to the satisfaction of the judge" which is required under the Rules on
Electronic Evidence; the trial court was also correct in finding that Citibank was grossly
negligent in failing to credit the additional deposit and make the necessary entries in its
systems to prevent Aznar from encountering any embarrassing situation with the use of
his Mastercard.33
Citibank, in its Comment, contends that: Aznar never had personal knowledge that his
credit card was blacklisted as he only presumed such fact; the issue of dishonor on the
ground that the card was declared over the limit was also never tried with the implied
consent of both parties; Aznars self-serving testimony is not sufficient to prove the
integrity and reliability of Exh. "G"; Aznar did not declare that it was Nubi who printed the
document and that said document was printed in his presence as he merely said that
the print-out was provided him; there is also no annotation on Exh. "G" to establish that
it was Nubi who printed the same; assuming further that Exh. "G" is admissible and
Aznars credit card was dishonored, Citibank still cannot be held liable for damages as it
only shows that Aznars credit card was dishonored for having been declared over the
limit; Aznars cause of action against Citibank hinged on the alleged blacklisting of his
card which purportedly caused its dishonor; dishonor alone, however, is not sufficient to
award Aznar damages as he must prove that the dishonor was caused by a grossly

negligent act of Citibank; the award of damages in favor of Aznar was based on Article
117034 of the Civil Code, i.e., there was fraud, negligence or delay in the performance of
its obligation; there was no proof, however that Citibank committed fraud or delay or that
it contravened its obligations towards Aznar; the terms and conditions of the credit card
cannot be considered as a contract of adhesion since Aznar was entirely free to reject
the card if he did not want the conditions stipulated therein; a person whose stature is
such that he is expected to be more prudent with respect to his transactions cannot later
on be heard to complain for being ignorant or having been forced into merely
consenting to the contract.35
In his Reply, Aznar contended that to a layman, the term "blacklisting" is synonymous
with the words "hot list" or "declared overlimit"; and whether his card was blacklisted or
declared over the limit, the same was dishonored due to the fault or gross negligence of
Citibank.36
Aznar also filed a Memorandum raising as issues the following:
I. Whether or not the augmentation deposit in the amount of P485,000.00 of the
Petitioner constitutes relative extinctive novation;
II. Whether or not the purchases made by Petitioner were beyond his credit limit;
III. Whether or not the issues of dishonor by reason of overlimit was tried with the
consent of the parties;
IV. Whether or not the "On Line Authorization Report" is an electronic document."
V. Whether or not the "On Line Authorization Report" constitutes electronic
evidence;
VI. Whether or not the agreement between the parties is a contract of adhesion;
VII. Whether or not the Respondent is negligent in not crediting the deposits of
the Respondent.37
Aznar further averred in his Memorandum that Citibank assured him that with the use of
his Mastercard, he would never be turned down by any merchant store, and that under
Section 43, Rule 130 of the Rules of Court, Exh. "G" is admissible in evidence. 38
Citibank also filed a Memorandum reiterating its earlier arguments. 39
Stripped to its essentials, the only question that needs to be answered is: whether Aznar
has established his claim against Citibank.

The answer is no.

It is basic that in civil cases, the burden of proof rests on the plaintiff to establish his
case based on a preponderance of evidence. The party that alleges a fact also has the
burden of proving it.40
In the complaint Aznar filed before the RTC, he claimed that Citibank blacklisted his
Mastercard which caused its dishonor in several establishments in Malaysia, Singapore,
and Indonesia, particularly in Ingtan Agency in Indonesia where he was humiliated when
its staff insinuated that he could be a swindler trying to use a blacklisted card.
As correctly found by the RTC in its May 29, 1998 Decision, Aznar failed to prove with a
preponderance of evidence that Citibank blacklisted his Mastercard or placed the same
on the "hot list."41
Aznar in his testimony admitted that he had no personal knowledge that his Mastercard
was blacklisted by Citibank and only presumed such fact from the dishonor of his card.
Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list was confirmed to
be authentic".
Now, who confirmed that the blacklisting of your Preferred Citibank Mastercard was
authentic?
A. Okey. When I presented this Mastercard, my card rather, at the Merchants store, I do
not know, they called up somebody for verification then later they told me that "your card
is being denied". So, I am not in a position to answer that. I do not know whom they
called up; where they verified. So, when it is denied thats presumed to be
blacklisted.
Q. So the word that was used was denied?
A. Denied.
Q. And after you were told that your card was denied you presumed that it was
blacklisted?
A. Definitely.
Q. So your statement that your card was allegedly blacklisted is only your
presumption drawn from the fact, from your allegations, that it was denied at the
merchandise store?
A. Yes, sir.42 (Emphasis supplied)

The dishonor of Aznars Mastercard is not sufficient to support a conclusion that said
credit card was blacklisted by Citibank, especially in view of Aznars own admission that
in other merchant establishments in Kuala Lumpur and Singapore, his Mastercard was
accepted and honored.43
Aznar puts much weight on the ON-LINE AUTHORIZATION FOREIGN ACCOUNT
ACTIVITY REPORT, a computer print-out handed to Aznar by Ingtan Agency, marked as
Exh. "G", to prove that his Mastercard was dishonored for being blacklisted. On said
print-out appears the words "DECL OVERLIMIT" opposite Account No. 5423-39200786-7012.
As correctly pointed out by the RTC and the CA, however, such exhibit cannot be
considered admissible as its authenticity and due execution were not sufficiently
established by petitioner.
The prevailing rule at the time of the promulgation of the RTC Decision is Section 20 of
Rule 132 of the Rules of Court. It provides that whenever any private document offered
as authentic is received in evidence, its due execution and authenticity must be proved
either by (a) anyone who saw the document executed or written; or (b) by evidence of
the genuineness of the signature or handwriting of the maker.
Aznar, who testified on the authenticity of Exh. "G," did not actually see the document
executed or written, neither was he able to provide evidence on the genuineness of the
signature or handwriting of Nubi, who handed to him said computer print-out. Indeed, all
he was able to allege in his testimony are the following:
Q I show to you a Computer Print Out captioned as On Line Authorization Activity
Report where it is shown that the Preferred Master Card Number 5423392007867012
was denied as per notation on the margin of this Computer Print Out, is this the
document evidencing the dishonor of your Preferred Master Card?
xxxx
A Yes sir, after that Ingtan incident, I went straight to the Service Agency there and on
the left hand side you will be able to see the name of the person in-charged [sic] there
certifying that really my card is being blacklisted and there is the signature there of the
agency.
ATTY. NAVARRO:
The witness, your honor, is pointing to the signature over the handwritten name of
Victrina Elnado Nubi which I pray, your honor, that the Computer Print Out be marked as
our Exhibit "G" and the remarks at the left hand bottom portion of Victorina Elnado Nubi
with her signature thereon be encircled and be marked as our Exhibit "G-1".

xxxx
Q Mr. Aznar, where did you secure this Computer Print Out marked as Exhibit
"G"?
A This is provided by that Agency, your honor. They were the ones who provided
me with this. So what the lady did, she gave me the Statement and I requested her
to sign to show proof that my Preferred Master Card has been
rejected.44 (Emphasis supplied).
Even if examined under the Rules on Electronic Evidence, which took effect on August
1, 2001, and which is being invoked by Aznar in this case, the authentication of Exh. "G"
would still be found wanting.
Pertinent sections of Rule 5 read:
Section 1. Burden of proving authenticity. The person seeking to introduce an
electronic document in any legal proceeding has the burden of proving its authenticity in
the manner provided in this Rule.
Section 2. Manner of authentication. Before any private electronic document offered
as authentic is received in evidence, its authenticity must be proved by any of the
following means:
(a) by evidence that it had been digitally signed by the person purported to have
signed the same;
(b) by evidence that other appropriate security procedures or devices as may be
authorized by the Supreme Court or by law for authentication of electronic
documents were applied to the document; or
(c) by other evidence showing its integrity and reliability to the satisfaction of the
judge.
Aznar claims that his testimony complies with par. (c), i.e., it constitutes the "other
evidence showing integrity and reliability of Exh. "G" to the satisfaction of the judge."
The Court is not convinced. Aznars testimony that the person from Ingtan Agency
merely handed him the computer print-out and that he thereafter asked said person to
sign the same cannot be considered as sufficient to show said print-outs integrity and
reliability. As correctly pointed out by Judge Marcos in his May 29, 1998 Decision, Exh.
"G" does not show on its face that it was issued by Ingtan Agency as Aznar merely
mentioned in passing how he was able to secure the print-out from the agency; Aznar
also failed to show the specific business address of the source of the computer print-out

because while the name of Ingtan Agency was mentioned by Aznar, its business
address was not reflected in the print-out. 45
Indeed, Aznar failed to demonstrate how the information reflected on the print-out was
generated and how the said information could be relied upon as true. In fact, Aznar to
repeat, testified as follows:
ATTY. NERI
Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list was confirmed to
be authentic"
Now, who confirmed that the blacklisting of your Preferred Citibank Mastercard was
authentic?
A Okey. When I presented this Mastercard, my card rather, at the Merchants store, I do
not know, they called up somebody for verification then later they told me that "your card
is being denied". So, I am not in a position to answer that. I do not know whom they
called up; where they verified. So, when it is denied thats presumed to be
blacklisted.46 (Emphasis supplied)
Aznar next invokes Section 43 of Rule 130 of the Rules of Court, which pertains to
entries in the course of business, to support Exh. "G". Said provision reads:
Sec. 43. Entries in the course of business. Entries made at, or near the time of the
transactions to which they refer, by a person deceased or unable to testify, who was in a
position to know the facts therein stated, may be received as prima facie evidence, if
such person made the entries in his professional capacity or in the performance of duty
and in the ordinary or regular course of business or duty.
Under this rule, however, the following conditions are required:
1. the person who made the entry must be dead, or unable to testify;
2. the entries were made at or near the time of the transactions to which they
refer;
3. the entrant was in a position to know the facts stated in the entries;
4. the entries were made in his professional capacity or in the performance of a
duty, whether legal, contractual, moral or religious; and
5. the entries were made in the ordinary or regular course of business or duty.47

As correctly pointed out by the RTC in its May 29, 1998 Decision, there appears on the
computer print-out the name of a certain "Victrina Elnado Nubi" and a signature
purportedly belonging to her, and at the left dorsal side were handwritten the words
"Sorry for the delay since the records had to be retrieved. Regards. Darryl Mario." It is
not clear therefore if it was Nubi who encoded the information stated in the print-out and
was the one who printed the same. The handwritten annotation signed by a certain
Darryl Mario even suggests that it was Mario who printed the same and only handed the
print-out to Nubi. The identity of the entrant, required by the provision above mentioned,
was therefore not established. Neither did petitioner establish in what professional
capacity did Mario or Nubi make the entries, or whether the entries were made in the
performance of their duty in the ordinary or regular course of business or duty.
And even if Exh. "G" is admitted as evidence, it only shows that the use of the credit
card of petitioner was denied because it was already over the limit. There is no
allegation in the Complaint or evidence to show that there was gross negligence on the
part of Citibank in declaring that the credit card has been used over the limit.
The Court is also perplexed that stated on Exh. "G" is the amount of "6,289,195.10"
opposite petitioner's account number, which data, petitioner did not clarify. 48 As plaintiff
in this case, it was incumbent on him to prove that he did not actually incur the said
amount which is above his credit limit. As it is, the Court cannot see how Exh. "G" could
help petitioner's claim for damages.
The claim of petitioner that Citibank blacklisted his card through fraud or gross
negligence is likewise effectively negated by the evidence of Citibank which was
correctly upheld by the RTC and the CA, to wit:
xxx Mr. Dennis Flores, the Head of the Credit Card Department of defendant Bank,
presented documents known as Warning Cancellation Bulletin for July 10, 17, 24, and
31, 1994 (Exhibits 3, 3-1 to 3-38, 4, 4-1 to 4-38 5, 5-1 to 5-39 and 6, 6-1 to 639), for August 7, 1994 (Exhibit[s] 7, 7-1 to 7-37), for August 8, 1994 (Exhibit[s] 8,
8-1 to 8-20) which show that plaintiffs Citibank preferred mastercard was not placed
in a hot list or was not blacklisted.
The Warning Cancellation Bulletins (WCB) (Exhibits 3, 4, 5, 6, 7, 8 and their
submarkings) which covered the period of four (4) days in July 1994 (from July 10, 17,
24 and 31, 1994), and two (2) days in August 1994, (August 7 and 8, 1994), when
plaintiff traveled in the aforementioned Asian countries showed that said Citibank
preferred mastercard had never been placed in a hot list or the same was blacklisted,
let alone the fact that all the credit cards which had been cancelled by the defendant
bank were all contained, reported and listed in said Warning Cancellation Bulletin which
were issued and released on a regular basis.

These three hundred (300) Warning Cancellation Bulletins pieces of documentary

proofs, all in all, adduced by defendant pointed to the fact that said plaintiffs credit car
(sic) was not among those found in said bulletins as having been cancelled for the
period for which the said bulletins had been issued.
Between said computer print out (Exhibit G) and the Warning Cancellation Bulletins
(Exhibits 3 to 8 and their submarkings) the latter documents adduced by defendant
are entitled to greater weight than that said computer print out presented by plaintiff that
bears on the issue of whether the plaintiffs preferred master card was actually placed in
the hot list or blacklisted for the following reasons:
The first reason is that the due execution and authentication of these Warning
Cancellation Bulletins (or WCB) have been duly established and identified by
defendants own witness, Dennis Flores, one of the banks officers, who is the head of
its credit card department, and, therefore, competent to testify on the said bulletins as
having been issued by the defendant bank showing that plaintiffs preferred master
credit card was never blacklisted or placed in the Banks hot list. But on the other hand,
plaintiffs computer print out (Exhibit G) was never authenticated or its due execution
had never been duly established. Thus, between a set of duly authenticated commercial
documents, the Warning Cancellation Bulletins (Exhibits 3 to 8 and their
submarkings), presented by defendants (sic) and an unauthenticated private document,
plaintiffs computer print out (Exhibit G), the former deserves greater evidentiary weight
supporting the findings of this Court that plaintiffs preferred master card (Exhibit 1) had
never been blacklisted at all or placed in a so-called hot list by defendant. 49
Petitioner next argues that with the additional deposit he made in his account which was
accepted by Citibank, there was an implied novation and Citibank was under the
obligation to increase his credit limit and make the necessary entries in its computerized
systems in order that petitioner may not encounter any embarrassing situation with the
use of his credit card. Again, the Court finds that petitioner's argument on this point has
no leg to stand on.
Citibank never denied that it received petitioners additional deposit. 50 It even claimed
that petitioner was able to purchase plane tickets from Cebu to Kuala Lumpur in the
amount of P237,170.00, which amount was beyond hisP150,000.00 limit, because it
was able to credit petitioners additional deposit to his account. Flores of Citibank
testified:
COURT:
Q When was this ticket purchased, after the account was augmented
or before?

A After the account was augmented, Your Honor, because there is no way we can
approve a P250,000.00 purchase with a P150,000.00 credit limit. 51
xxx
ATTY. NERI:
For the record, your honor, the deposit of P450,000.00 was made as per exhibit of
the plaintiff on June 28. The purchase of the tickets amount to P237,000.00 was
approved and debited on the account of Mr. Aznar on July 20, your honor. The
deposit was made about a month before the purchase of the tickets as per
documentary exhibits, your honor.
COURT:
So, Atty. Navarro, what do you say to that explanation?
ATTY. NAVARRO [counsel of petitioner]:
That is correct, your honor, that is borne out by the records, your
honor. (Emphasis supplied)
COURT: (to witness)
Q So, I think Atty. Navarro is only after whether a credit line could be extended?
A Yes, your honor.
Q Even if there is no augmenting?
A No, sir, it is not possible. So, the only way the P237,000.00 transaction could be
approved was by way of advance payment which actually happened in this case
because there is no way that the P237,000.00 can be approved with
the P150,000.00 credit limit.52 (Emphasis supplied)
The allegations of blacklisting not having been proved, is Citibank liable for damages for
the dishonor of Aznars Mastercard?
Again, the answer is no.
Citibank, in its attempt to evade liability, invokes paragraphs 7 and 15 of the terms and
conditions governing the issuance of its Mastercard which read:

7. MERCHANT AFFILIATES. [Citibank is] not responsible if the Card is not honored by
any merchant affiliate for any reason. Furthermore, [the cardholder] will not hold
[Citibank] responsible for any defective product or service purchased through the Card.
xxxx
15. LIMITATION OF LIABILITY. In any action arising from this agreement or any incident
thereto which [the cardholder] or any other party may file against [Citibank], [Citibanks]
liability shall not exceed One Thousand Pesos [P1,000.00] or the actual damages
proven, whichever is lesser.53
On this point, the Court agrees with Aznar that the terms and conditions of Citibanks
Mastercard constitute a contract of adhesion. It is settled that contracts between
cardholders and the credit card companies are contracts of adhesion, so-called,
because their terms are prepared by only one party while the other merely affixes his
signature signifying his adhesion thereto.54
In this case, paragraph 7 of the terms and conditions states that "[Citibank is] not
responsible if the Card is not honored by any merchant affiliate for any reason x x x".
While it is true that Citibank may have no control of all the actions of its merchant
affiliates, and should not be held liable therefor, it is incorrect, however, to give it blanket
freedom from liability if its card is dishonored by any merchant affiliate for any reason.
Such phrase renders the statement vague and as the said terms and conditions
constitute a contract of adhesion, any ambiguity in its provisions must be construed
against the party who prepared the contract, 55 in this case Citibank.
Citibank also invokes paragraph 15 of its terms and conditions which limits its liability
to P1,000.00 or the actual damage proven, whichever is lesser.
Again, such stipulation cannot be considered as valid for being unconscionable as it
precludes payment of a larger amount even though damage may be clearly proven.
This Court is not precluded from ruling out blind adherence to the terms of a contract if
the attendant facts and circumstances show that they should be ignored for being
obviously too one-sided.56
The invalidity of the terms and conditions being invoked by Citibank, notwithstanding,
the Court still cannot award damages in favor of petitioner.
It is settled that in order that a plaintiff may maintain an action for the injuries of which
he complains, he must establish that such injuries resulted from a breach of duty which
the defendant owed to the plaintiff a concurrence of injury to the plaintiff and legal
responsibility by the person causing it. The underlying basis for the award of tort
damages is the premise that an individual was injured in contemplation of law; thus

there must first be a breach before damages may be awarded and the breach of such
duty should be the proximate cause of the injury.57
It is not enough that one merely suffered sleepless nights, mental anguish or serious
anxiety as a result of the actuations of the other party. It is also required that a culpable
act or omission was factually established, that proof that the wrongful act or omission of
the defendant is shown as the proximate cause of the damage sustained by the
claimant and that the case is predicated on any of the instances expressed or
envisioned by Arts. 221958 and 222059 of the Civil Code.60
In culpa contractual or breach of contract, moral damages are recoverable only if the
defendant has acted fraudulently or in bad faith, or is found guilty of gross negligence
amounting to bad faith, or in wanton disregard of his contractual obligations. The breach
must be wanton, reckless, malicious or in bad faith, oppressive or abusive. 61
While the Court commiserates with Aznar for whatever undue embarrassment he
suffered when his credit card was dishonored by Ingtan Agency, especially when the
agencys personnel insinuated that he could be a swindler trying to use blacklisted
cards, the Court cannot grant his present petition as he failed to show by
preponderance of evidence that Citibank breached any obligation that would make it
answerable for said suffering.
As the Court pronounced in BPI Express Card Corporation v. Court of Appeals, 62
We do not dispute the findings of the lower court that private respondent suffered
damages as a result of the cancellation of his credit card. However, there is a material
distinction between damages and injury. Injury is the illegal invasion of a legal right;
damage is the loss, hurt, or harm which results from the injury; and damages are the
recompense or compensation awarded for the damage suffered. Thus, there can be
damage without injury to those instances in which the loss or harm was not the result of
a violation of a legal duty. In such cases, the consequences must be borne by the
injured person alone, the law affords no remedy for damages resulting from an act
which does not amount to a legal injury or wrong. These situations are often
called damnum absque injuria.63
WHEREFORE, the petition is denied for lack of merit.
SO ORDERED.
THIRD DIVISION
G.R. No. 182886, March 09, 2015

SPOUSES
SALVADOR
P.
NORBERTE,
JR.
AND
ELIZABETH
S.
NORBERTE, Petitioners, v. SPOUSES FELICISIMO G. MEJIA AND ELVIRA C. MEJIA
AND/OR
THEIR
HEIRS,
REPRESENTED
BY
ALEXIS
MEJIAQUERUBIN, Respondent.
DECISION
PERALTA, J.:
Before the Court is a Petition for Review under Rule 45 of the Rules of Court which
petitioners spouses Salvador P. Norberte, Jr. and Elizabeth S. Norberte filed, assailing
the Decision1 of the Court of Appeals (CA), dated September 21, 2007, and its
Resolution2 dated May 14, 2008 in CA-G.R. SP No. 91926. The CA remanded the case
to the Regional Trial Court (RTC) of Caloocan City, Branch 129 for further proceedings.
The

antecedents

of

the

instant

case

are

as

follows:

The subject property in the case at bar is a 160-square-meter parcel of land located in
the Calaanan District, Caloocan City which was previously owned by Edgardo
Ongsiaco. It appeared that Ongsiaco allowed Dativa Gonzales, mother of respondent
Felicisimo G. Mejia, to occupy said lot and build a house thereon. However, Ongsiaco
later sold the same land to the spouses Carlos and Josefina Legaspi (the Spouses
Legaspi), who caused the registration of the property in their names. Thus, the Spouses
Legaspi
filed
an
action
for
ejectment
against
Gonzales.
On March 28, 1988, the Spouses Legaspi executed a Deed of Conditional Sale over the
subject lot in favor of petitioners spouses Salvador and Elizabeth Norberte (the
Spouses Norberte). As consideration for the sale, the parties agreed on P160,000.00 as
the amount of the purchase price. After the Spouses Norberte paid the downpayment in
the amount of P20,000.00, the deed of conditional sale was duly notarized and
annotated
at
the
back
of
the
property's
title.
However, on July 6, 1990, the Spouses Legaspi again sold the same property, this time
to respondents spouses Felicisimo and Elvira Mejia (the Spouses Mejia). This
transaction resulted in the execution of a compromise agreement between them,
leading to the dismissal of the ejectment case earlier filed against Gonzales. This
prompted the Spouses Norberte to file an action to annul said sale to the Spouses Mejia
and
successfully
obtained
a
judgment
in
their
favor.
On June 6, 2003, upon payment of the balance of the purchase price, the wife and the
children of the then deceased Carlos Legaspi finally executed a Deed of Absolute Sale
in favor of the Spouses Norberte. Thus, the Norbertes made a demand to vacate
against the Mejias. Since the demand was left unheeded, the Spouses Norberte filed a
complaint for ejectment on November 6, 2003 before the Caloocan Metropolitan Trial
Court (MeTC), Branch 49. The case was docketed as Civil Case No. 03-27540.

On December 22, 2004, the Caloocan MeTC dismissed 3 the complaint for lack of
jurisdiction since, under the circumstances, the summary action for unlawful detainer
was no longer available and the proper action should have been accion publiciana. The
Spouses Norberte then brought the case to the RTC and likewise filed a motion to cite
in contempt of court the counsel of the Mejias, Atty. Nancy Quimpo, for failure to furnish
the court the names and addresses of the legal representatives of the Spouses Mejia,
who both died during the course of the proceedings. Atty. Quimpo, on the other hand,
contended that the action for ejectment had been effectively extinguished by the death
of
her
clients.
The RTC, thereafter, affirmed in toto the decision of the MeTC in a very brief Order
dated April 29, 2005, the full text of which reads:chanroblesvirtuallawlibrary
Above captioned case is an appeal interposed by the herein Plaintiffs-Appellants from
the Decision of the Court a quo, the dispositive portion of which states the following:
WHEREFORE,
For

lack

for
of

lack

of

basis,

jurisdiction
the

this

Counterclaim

case

is

is

hereby
likewise

SO

dismissed.
dismissed.
ORDERED.

This Court, in the exercise of its appellate jurisdiction, hereby AFFIRMS the Decision of
the Court below in toto for being in accord with the facts and the law of the case.
SO ORDERED.4cralawlawlibrary
It

also

denied

the

motion

to

cite

Atty.

Quimpo

in

contempt

of

court.

The Spouses Norberte thus elevated the case to the CA, seeking the reversal of the
rulings of the courts below. On September 21, 2007, the appellate court
ruled:chanroblesvirtuallawlibrary
WHEREFORE, premises considered, the case is REMANDED to Branch 129 of the
Regional
Trial
Court
of
Caloocan
City
for
further
proceedings.
Atty. Nancy Quimpo is, on the other hand, REPRIMANDED for her failure and/or refusal
to completely perform her duties under Section 16, Rule 3 of the 1997 Rules of Civil
Procedure. She is further warned that a repetition of similar act or omission will be dealt
with
more
severely.
SO ORDERED.5cralawlawlibrary
The Norbertes then filed a Motion for Reconsideration, but the same was also denied.
Hence,
the
present
petition.
The Spouses Norberte mainly argue that their action is one for unlawful detainer and, as
such, the MeTC has jurisdiction over the same. They likewise contend that the March

28, 1988 Deed of Conditional Sale is not absolute in nature but is, in fact, a mere
contract
to
sell.
The

Court

Finds

the

petition

to

be

without

merit.

In summary ejectment suits (unlawful detainer and forcible entry), the only issue to be
determined is who between the contending parties has better possession of the
contested property. The' Municipal Trial Courts, Metropolitan Trial Courts in Cities, and
the Municipal Circuit Trial Courts exercise exclusive original jurisdiction over these
cases and the proceedings are governed by the Rules on Summary Procedure. On the
other hand, accion publiciana, also known as accion plenaria de posesion, is a plenary
action for the recovery of possession in an ordinary civil proceeding to determine the
better and legal right to possess, independently of title. The main distinctions between
these two remedies lie in the period within which the action can be instituted and in the
court which exercises jurisdiction over the matter. Actions for unlawful detainer and
forcible entry must be filed within one (1) year from the date possession is lost,
while accion publiciana may be filed only after the expiration of that period but within the
period prescribed in the statute of limitations. An accion publiciana may only be filed
with the RTC, while a complaint, for unlawful detainer or forcible entry may only be filed
with
the
first
level
courts.6
The Court sustains the finding that the MeTC had no jurisdiction over the case. The
ownership of the subject property passed to the Spouses Norberte by constructive
delivery upon the execution of the March 28, 1988 contract of conditional sale between
them and the Legaspis. Although denominated as conditional, a deed of sale is absolute
in nature in the absence of any stipulation reserving title to the seller until full payment
of the purchase price. In such case, ownership of the thing sold passes to the buyer
upon actual or constructive delivery.7 In a contract of sale, the title to the property
passes to the buyer upon the delivery of the thing sold. In a contract to sell, on the other
hand, the ownership is, by agreement, retained by the vendor and is not to pass to the
vendee until full payment of the purchase price. 8 Here, there was already a perfected
contract. The condition imposed was only on the performance of the obligations of the
parties.9 As admitted by the Spouses Norberte themselves, there is nothing in the Deed
of Conditional Sale which expressly provides for the retention of title or ownership of the
property by the sellers until full payment of the purchase price. 10 There is clearly no
express reservation of title made by the Legaspis over the property, or any provision
which would impose payment of the price as a condition for the contract's entering into
force.11 The absence of such stipulation indicates that what the parties have actually
contemplated
was
a
contract
of
absolute
sale. 12
Therefore, the Spouses Norberte were deemed to have been unlawfully deprived of the
lawful possession of the property by the Mejias upon the execution of the contract of
conditional sale on March 28, 1998. Unfortunately, they filed their complaint for
ejectment only on November 6, 2003, way beyond the prescribed period of one (1) year
within which the action should be commenced. However, the RTC should not have
dismissed the case. Rather, it should have tried it as one for accion publiciana, as if it

had originally been filed with it, in accordance with paragraph 1 of Section 8, 13 Rule 40
of the Rules of Court. It likewise failed to state any findings of facts and conclusions of
law
on
which
it
based
its
affirmance
of
the
MeTC
Decision.
Finally, Atty. Quimpo should be reprimanded for her failure and refusal to furnish the
courts of the names and addresses of the spouses' legal representatives despite the
death of Felicisimo Mejia on June 23, 2004, and of Elvira Mejia on March 23, 2005. An
ejectment case survives the death of a party and the death of the Spouses Mejia did not
extinguish the action for ejectment instituted against them. That action, not being a
purely personal one, survived their deaths and their heirs can take their place to protect
and
represent
their
interests
therein.cralawred
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals, dated
September 21, 2007, and its Resolution dated May 14, 2008 in CA-G.R. SP No. 91926
are
hereby AFFIRMED.
SO ORDERED.chanroblesvirtuallawlibrary
Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION
G.R. Nos. 79597-98

May 20, 1991

HEIRS OF DEMETRIA LACSA, represented by: BIENVENIDO CABAIS, VIRGINIA

CABAIS, LEONOR CABAIS-PENA and DOLORES CABAIS-MAGPAYO, petitioners,
vs.
COURT OF APPEALS, AURELIO D. SONGCO, ANGEL D. SONGCO ENCARNACION
D. SONGCO, LOURDES D. SONGCO, ANGELA S. SONGCO, LUDIVINA S.
SONGCO, JOSEPHINE S. SONGCO, ALBERT S. SONGCO, INOSENCIO S.
SONGCO, JAIME S. SONGCO, MARTIN S. SONGCO, and BERNARD S. SONGCO,
Being Heirs of Inocencio Songco, respondents.
Norbin
P.
Dimalanta
Dante S. David for private respondents.

for

petitioners.

PADILLA, J.:
This is a petition for review on certiorari of the decision * of respondent Court of Appeals
in CA-G.R. CV Nos. 08397-08398 dated 16 July 1987 affirming with modification the
decision of the Regional Trial Court of Guagua, Pampanga, in favor of private

respondents, and its resolution dated 14 August 1987 denying the motion for
reconsideration.
This petition which originated with the Regional Trial Court of Guagua, Pampanga
involves two (2) cases, namely: Civil Case No. G-1190 and Civil Case No. G-1332. 1
Civil Case No. G-1190 is an action for recovery of possession with damages and
preliminary injunction filed by herein petitioners, the heirs of Demetria Lacsa, against
Aurelio Songco and John Doe based on the principal allegations that petitioners are
heirs of deceased Demetria Lacsa who, during her lifetime, was the owner of a certain
parcel of land consisting partly of a fishpond and partly of uncultivated open space,
located in Bancal, Guagua, Pampanga, evidenced by Original Certificate of Title No.
RO-1038 (11725); that the principal respondent and his predecessor-in-interest who are
neither co-owners of the land nor tenants thereof, thru stealth, fraud and other forms of
machination, succeeded in occupying or possessing the fishpond of said parcel of land
and caused the open space therein to be cleared for expanded occupancy thereof, and
refused to vacate the same despite petitioner's demands on them to vacate. 2
Civil Case No. G-1332 is an action also by herein petitioners against private
respondents before the same lower court for cancellation of title, ownership with
damages and preliminary injunction, based on the allegations that they are the heirs of
Demetria Lacsa who was the owner of the land also involved in Civil Case No. G-1190;
that the herein private respondents and their predecessors-in-interest, thru stealth, fraud
and other forms of machination, succeeded in occupying or possessing the fishpond of
the said parcel of land, and later abandoned the same but only after the case was filed
and after all the fish were transferred to the adjoining fishpond owned by the private
respondents; that on 31 October 1923 and 15 March 1924, by presenting to the
Register of Deeds of Pampanga certain forged and absolutely simulated documents,
namely: "TRADUCCION AL CASTELLANO DE LA ESCRITURA DE PARTICION
EXTRAJUDICIAL" and "ESCRITURA DE VENTA ABSOLUTA", respectively, and by
means of false pretenses and misrepresentation, Inocencio Songco, the private
respondents' predecessor-in-interest, succeeded in transferring the title to said property
in his name, to the damage and prejudice of the petitioners; and that a preliminary
injunction was necessary to prevent the private respondents from disposing of said
property. 3
Private respondents denied the material allegations of both complaints and alleged as
special and affirmative defenses, petitioners' lack of cause of action, for the reason that
Original Certificate of Title No. RO-1038 (11725) was merely a reconstituted copy
issued in April 1983 upon petitioners' expedient claim that the owner's duplicate copy
thereof had been missing when the truth of the matter was that OCT No. RO-1038
(11725) in the name of Demetria Lacsa, had long been cancelled and superseded by
TCT No. 794 in the name of Alberta Guevarra and Juan Limpin by virtue of the
document entitled "TRADUCCION AL CASTELLANO DE LA ESCRITURA DE
PARTICION EXTRA-JUDICIAL" entered into by the heirs of Demetria Lacsa; that the
latter TCT was in turn superseded by TCT No. 929 issued in the name of Inocencio

Songco (father of private respondents) by virtue of a document entitled "ESCRITURA

DE VENTA ABSOLUTA" executed by spouses Juan Limpin and Alberta Guevarra in
favor of said Inocencio Songo. 4
Private respondents, in their answer, pleaded a counterclaim against petitioners based
on allegations that the latter headed by Carlito Magpayo, by force and intimidation, took
possession of a portion of the fishpond in the land and occupied a hut therein, that at
that time, private respondents had 3,000 bangus fingerlings left in the fishpond which
upon petitioners' harvest thereof left private respondents deprived and damaged in the
amount of P50,000.00 more or less; that such illegal occupancy caused private
respondents to suffer unrealized income and profits, sleepless nights, wounded feelings
and serious anxiety which entitled them to actual, moral and exemplary damages as
well as attorney's fees and P500.00 appearance fee for every hearing. 5
On 20 January 1985, the parties assisted by their respective counsel filed in Civil Case
No. G-1332 a joint stipulation of facts, alleging:
1. That on June 9, 1982, the plaintiffs, being heirs of Demetria Lacsa, filed Civil
Case No. 1190;
2. That after the defendants filed their Answer in the said Civil Case No. G-1190,
and learning the land subject of the two (2) abovementioned cases (sic), said
plaintiffs filed a Motion for Leave to Admit Amended and/or Supplemental
Complaint.
3. That the said motion was denied by the Honorable Court, hence, said plaintiffs
filed Civil Case No. G-1332, the above-entitled case, with the same cause of
action as that of the proposed Amended and/or Supplemental Complaint;
4. That the evidences of both parties in Civil Case No. G-1190 and in the aboveentitled case are practically and literally the same;
5. That in view of the foregoing, and in order to avoid duplicity of action by
repeatedly presenting the same act of evidences and same set of witnesses, the
parties mutually agreed as they hereby agree and stipulate that any and all
evidences presented under Civil Case No. 1190 shall be adopted as evidences
for both parties in the above-entitled case, and upon submission for resolution of
Civil Case No. G-1190, the above-entitled case shall likewise be deemed
submitted for resolution on the basis of the evidence presented in the same Civil
Case No. G-1190. 6
On the basis of this joint stipulation of facts, the lower court held that:
. . . the fishpond in question was originally owned by Demetria Lacsa under
Original Certificate of Title No. 11725. After Demetria Lacsa died her two
daughters Alberta Guevarra and Ambrocia Guevarra with their respective

husbands Juan Limpin and Damaso Cabais entered into an extrajudicial partition
of the properties left by Demetria Lacsa under the document "Traduccion Al
Castellano de la Escritura de Partition Extra-judicial" dated April 7, 1923 (Exhibits
"3","3-A" and "3-B") wherein the fishpond in question was adjudicated to Alberta
Guevarra and which deed was duly registered in the Office of the Registry of
Deeds of Pampanga as evidenced by the certification of the Deputy Register of
Deeds marked as Exhibit "3-C". Aside from the "Traduccion Al Castellano de la
Escritura de Particion Extrajudicial" written in the Spanish language, the spouses
Alberta Guevarra and Juan Limpin and the spouses Ambrosia Guevarra and
Damaso Cabais executed on April 7, 1923, another deed of partition in the
Pampango dialect marked as Exhibit "3-D" "wherein the fishpond in question was
adjudicated to Alberta Guevarra. As a consequence, Original Certificate of Title
No. 794 (Exhibit "4") was issued to spouses Alberta Guevarra and Juan Limpin.
On January 20, 1924, the spouses Juan Limpin and Alberta Guevarra sold the
fishpond in question to Inocencio Songco under the deed entitled "Escritura de
Venta Absoluta" (Exhibits "7" and "7-A") which was duly registered in the Office of
the Registry of Deeds of Pampanga as evidenced by the certification of the
Deputy Register of Deeds marked Exhibit "7-B". As a result of the sale, Transfer
Certificate of Title No. 794 (Exhibit "4") in the name of the spouses Alberta
Guevarra and Juan Limpin was cancelled by the Office of the Registry of Deeds
of Pampanga and Transfer Certificate of Title No. 929 was issued to Inocencio
Songco." 7
The lower court thus held that the fishpond in question belongs to the private
respondents, having been inherited by them from their deceased father Inocencio
Songco. 8
The dispositive portion of the judgment in favor of private respondents reads:
WHEREFORE, JUDGMENT is hereby rendered
In Civil Case No. G - 1190
(A) Ordering the dismissal of the complaint in Civil Case No. G-1190;
In Civil Case No. G-1332
(B) Ordering the dismissal of the complaint in Civil Case No. G-1332;
In Both Civil Case No. G-1190 and Civil Case No. G-1332
(C) Ordering the cancellation of Original Certificate of Title No. RO-1038 (11725)
in the name of Demetria Lacsa;
(D) Ordering the plaintiffs to restore possession of the fishpond in question
located in Bancal, Guagua, Pampanga, to the defendants (sic);

(E) Ordering the plaintiffs to pay jointly and severally, the defendants the sum of
Twenty Five Thousand (P25,000.00) Pesos, Philippine Currency, as and for
moral damages;
(F) Ordering the plaintiffs to pay jointly and severally, the defendants the sum of
Twenty Five Thousand (P25,000.00) Pesos, Philippine Currency, as and for
exemplary damages;
(G) Ordering the plaintiffs to pay jointly and severally, the defendants the sum of
Ten Thousand (P10,000.00) Pesos, Philippine Currency, as attorney's fees;
(H) Costs against the plaintiffs.
SO ORDERED. 9
Petitioners appealed the above-mentioned decision to the respondent Court of Appeals
assigning the following errors allegedly committed by the lower court:
I. IN FAILING TO APPRECIATE THE PREPONDERANCE OF EVIDENCE IN
FAVOR OF THE PLAINTIFFS-APPELLANTS THAT THE TWO DOCUMENTS
(EXHS. 3 & 7 AND THEIR SUB-MARKINGS) WERE FORGED AND
ABSOLUTELY SIMULATED DOCUMENTS. HENCE, NULL AND VOID;
II. IN HOLDING THAT THERE WAS NO EVIDENCE THAT THE SIGNATURE OF
JUAN LIMPIN AND THUMBMARK OF ALBERTA GUEVARRA APPEARING ON
THE EXCRITUA DE VENTA ABSOLUTA (EXHS. 7 & 7-A) WERE FORGED;
III. IN APPRECIATING IN FAVOR OF THE APPELLEES THE DOCUMENTS
PRESENTED BY WITNESS JESUS CRUZ WHEN THEIR SOURCES COULD
NOT BE ACCOUNTED FOR AND THEIR AUTHENTICITY IS IN QUESTION;
IV. IN HOLDING THAT INOCENCIO SONGCO, THE PREDECESSOR-ININTEREST OF THE APPELLEES WAS AN INNOCENT PURCHASER FOR
VALUE;
V. IN HOLDING THAT TRANSFER CERTIFICATE OF TITLE NO. 929 WAS
ISSUED TO INOCENCIO SONGCO BY THE REGISTERED TRY OF DEEDS OF
PAMPANGA;
VI. IN HOLDING THAT ORIGINAL CERTIFICATE OF TITLE NO. RO-1038
(11725) WAS ISSUED BY THE COURT (CFI-III PAMPANGA) IN EXCESS OF
OR WITHOUT JURISDICTION AND THEREFORE NULL AND VOID;
VII. IN FAILING TO APPRECIATE THAT THE VOLUNTARY ABANDONMENT OF
THE FISHPOND IN QUESTION BY THE APPELLEES WAS A RECOGNITION
OF APPELLANTS' TITLE TO IT;

VIII. IN AWARDING DAMAGES TO THE APPELLEES.

10

The Court of Appeals rendered a decision in the appealed case, the dispositive portion
of which reads:
WHEREFORE, the decision appealed from is hereby AFFIRMED with the
modification that appellants are not liable for moral and exemplary damages as
well as attorney's fees.
SO ORDERED. 11
Petitioners flied a motion for reconsideration with the Court of Appeals but the same
was denied in its resolution dated 14 August 1987. 12 Hence, this petition.
Petitioners assign the following alleged errors to the Court of Appeals:
I. IN APPLYING THE "ANCIENT DOCUMENT RULE" ON THE QUESTIONED
DOCUMENT ENTITLED "ESCRITURA DE PARTICION EXTRAJUDICIAL" AND
"ESCRITURA DE VENTA ABSOLUTA; AND MARKED DURING THE TRIAL AS
EXHIBITS "3" AND "7", RESPECTIVELY, FOR THE RESPONDENT HEREIN;
II. IN DISREGARDING THE MANDATORY REQUIREMENT OF THE NOTARIAL
LAW WHICH TOOK EFFECT AS EARLY AS FEBRUARY 1, 1903;
III. IN DISREGARDING THE RULE ON PROOF OF PUBLIC OR OFFICIAL
RECORD, (SEC. 25, RULE 132, RULES OF COURT) 13
Petitioners contend that the Court of Appeals wrongfully applied the "ancient document
rule" provided in Sec. 22, Rule 132 of the Rules of Court. 14 The rule states that:
Sec. 22. Evidence of execution not necessary. Were a private writing is more
than thirty years old, is produced from a custody in which it would naturally be
found if genuine, and is unblemished by any alterations or circumstances of
suspicion, no other evidence of its execution and authenticity need be given.
It is submitted by petitioners that under this rule, for a document to be classified as an
"ancient document", it must not only be at least thirty (30) years old but it must also be
found in the proper custody and is unblemished by alterations and is otherwise free
from suspicion. 15 Thus, according to petitioners, exhibits "3" and "7", entitled
"Traduccion Al Castellano de la Escritura de Particion Extrajudicial" and "Escritura de
Venta Absoluta", respectively, can not qualify under the foregoing rule, for the reason
that since the "first pages" of said documents do not bear the signatures of the alleged
parties thereto, this constitutes an indelible blemish that can beget unlimited
alterations. 16

We are not persuaded by the contention. Under the "ancient document rule," for a
private ancient document to be exempt from proof of due execution and authenticity, it is
not enough that it be more than thirty (30) years old; it is also necessary that the
following requirements are fulfilled; (1) that it is produced from a custody in which it
would naturally be found if genuine; and (2) that it is unblemished by any alteration or
circumstances of suspicion. 17
The first document, Exhibit "3", entitled 'Traduccion Al Castellano de la Escritura de
Particion Extrajudicial" was executed on 7 April 1923 whereas the second document,
exhibit "7", entitled "Escritura de Venta Absoluta" was executed on 20 January 1924.
These documents are, therefore, more than thirty (30) years old. Both copies of the
aforementioned documents were certified as exact copies of the original on file with the
Office of the Register of Deeds of Pampanga, by the Deputy Register of Deeds. There
is a further certification with regard to the Pampango translation of the document of
extrajudicial partition which was issued by the Archives division, Bureau of Records
Management of the Department of General Services. 18
Documents which affect real property, in order that they may bind third parties, must be
recorded with the appropriate Register of Deeds. The documents in question, being
certified as copies of originals on file with the Register of Deeds of Pampanga, can be
said to be found in the proper custody. Clearly, therefore, the first two (2) requirements
of the "ancient document rule" were met.
As to the last requirement that the document must on its face appear to be genuine,
petitioners did not present any conclusive evidence to support their allegation of
falsification of the said documents. They merely alluded to the fact that the lack of
signatures on the first two (2) pages could have easily led to their substitution. We
cannot uphold this surmise absent any proof whatsoever. As held in one case, a
contract apparently honest and lawful on its face must be treated as such and one who
assails the genuineness of such contract must present conclusive evidence of
falsification. 19
Moreover, the last requirement of the "ancient document rule" that a document must be
unblemished by any alteration or circumstances of suspicion refers to the extrinsic
quality of the document itself. The lack of signatures on the first pages, therefore,
absent any alterations or circumstances of suspicion cannot be held to detract from the
fact that the documents in question, which were certified as copied of the originals on
file with the Register of Deeds of Pampanga, are genuine and free from any blemish or
circumstances of suspicion.
The documents in question are "ancient documents" as envisioned in Sec. 22 of Rule
132 of the Rules of Court.1wphi1Further proof of their due execution and authenticity
is no longer required. Having held that the documents in question are private writings
which are more than thirty (30) years old, come from the proper repository thereof, and
are unblemished by any alteration or circumstances of suspicion, there is no further
need for these documents to fulfill the requirements of the 1903 Notarial Law. Hence,

the other contentions of the petitioners that the documents do not fulfill the mandatory
requirements of the Notarial Law 20 and that the proper person or public official was not
presented to testify on his certification of the documents in question, 21 need not be
resolved as they would no longer serve any purpose.
WHEREFORE, the Petition is DENIED. The appealed decision of the Court of Appeals
is AFFIRMED. Costs against the petitioners.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

INTERPACIFIC
TRANSIT,
vs.
RUFO AVILES and JOSEPHINE AVILES, respondents.

INC., petitioner,

FIRST DIVISION

G.R. No. 86062 June 6, 1990

Balane, Barican, Cruz, Alampay Law Office for petitioner.

Francisco G. Mendoza private respondents.

CRUZ, J.:
This case hinges on the proper interpretation and application of the rules on the
admissibility of documentary evidence and the viability. of a civil action for damages
arising from the same acts imputed to the defendant in a criminal action where he has
been acquitted.
In the information filed against Rufo and Josephine Aviles, the private respondents
herein, it was alleged that being then sub-agents of Interpacific Transit, Inc. and as such
enjoying its trust and confidence, they collected from its various clients payments for
airway bills in the amount of P204,030.66 which, instead of remitting it to their principal,
they unlawfully converted to their own personal use and benefit. 1

At the trial, the prosecution introduced photocopies of the airway bills supposedly
received by the accused for which they had not rendered proper accounting. This was
done in, the course of the direct examination of one of the prosecution witnesses. 2 The
defense objected to their presentation, invoking the best evidence rule. The prosecution
said it would submit the original airway bills in due time. Upon such undertaking, the trial
court allowed the marking of the said documents a s Exhibits "B" to "OO." The e
prosecution n did submit the original airway bills nor did it prove their loss to justify their
substitution with secondary evidence. Nevertheless, when the certified photocopies of
the said bills formally were offered, 3 in evidence, the defense interposed no objection.
In acquitting the accused, Judge Herminio I. Benito of the Regional Trial Court of Makati
rejected the agency theory of the prosecution and held that the relationship between the
petitioner and Rufo Aviles was that of creditor and debtor only. "Under such
relationship,' it declared, "the outstanding account, if any, of the accused in favor of ITI
would be in the nature of an indebtedness, the non- payment of which does not
Constitute estafa." 4
The court' also held that the certified photocopies of the airway by were not admissible
under the rule that "there can be no evidence of a writing the content of which is the
subject of inquiry other' than the writing itself." Loss of the originals had not been proved
to justify the exception to the rule as one of the prosecution witness had testified that
they were still in the ITI bodega. Neither had it been shown that the originals had been
"recorded in an existing record a certified copy of which is made evidence by law."
In its order denying the motion for reconsideration, the trial court declared that it "had
resolved the issue of whether the accused has civil obligation to ITI on the basis of the
admissibility in evidence of the xerox copies of the airway bills." 5
Right or wrong, the acquittal on the merits of the accused can no longer be the subject
of an appeal under the double jeopardy rule. However, the petitioner seeks to press the
civil liability of the private respondents, on the ground that the dismissal of the criminal
action did not abate the civil claim for the recovery of the amount. More to the point, ITI
argues that the evidence of the airways bills should not have been rejected and that it
had sufficiently established the indebtedness of the private respondents to it.
The Court of Appeals 6 affirmed, the decision of the trial court in toto, adding that the
existing record spoken of in Section 2 (e) and (d) of Rule 130 of the Rules of Court must
be in the custody, of a public officer only. It also declared that:
Since no evidence of civil liability was presented, no necessity existed on
the part of the private respondents to present evidence of payment of an
obligation which was not shown to exist.

The petitioner now asks this Court to annul that judgment as contrary to law and the
facts established at the As in the courts below, it is insisting on the admissibility of its
evidence to prove the civil liability of the private respondents.
We agree with the petitioner. The certified photocopies of the airway bills should have
been considered.
In assessing this evidence, the lower courts confined themselves to the best evidence
rule and the nature of the documents being presented, which they held did not come
under any of the exceptions to the rule. There is no question that the photocopies were
secondary evidence and as such were not admissible unless there was ample proof of
the loss of the originals; and neither were the other exceptions allowed by the Rules
applicable. The trouble is that in rejecting these copies under Rule 130, Section 2, the
respondent court disregarded an equally important principle long observed in our trial
courts and amply supported by jurisprudence.
This is the rule that objection to documentary evidence must be made at the time it is
formally offered. as an exhibit and not before. Objection prior to that time is premature.
It is instructive at this paint to make a distinction between Identification of documentary
evidence and its formal offer as an exhibit. The first is done in the course of the trial and
is accompanied by the marking of the evidence an an exhibit. The second is done only
when the party rests its case and not before. The mere fact that a particular document is
Identified and marked as an exhibit does not mean it will be or has been offered as part
of the evidence of the party. The party may decide to formally offer it if it believes this
will advance its cause, and then again it may decide not to do so at all. In the latter
event, the trial court is, under Rule 132, Section 35, not authorized to consider it.
Objection to the documentary evidence must be made at the time it is formally offered,
not earlier. The Identification of the document before it is marked as an exhibit does not
constitute the formal offer of the document as evidence for the party presenting it.
Objection to the Identification and marking of the document is not equivalent to
objection to the document when it is formally offered in evidence. What really matters is
the objection to the document at the time it is formally offered as an exhibit.
In the case at bar, the photocopies of the airway bills were objected to by the private
respondents as secondary evidence only when they, were being Identified for marking
by the prosecution. They were nevertheless marked as exhibits upon the promise that
the original airway bills would be submitted later. it is true that the originals were never
produced. Yet, notwithstanding this omission, the defense did not object when the
exhibits as previously marked were formally offered in evidence. And these were
subsequently admitted by the trial court. 7

In People v. Teodoro, 8 a document being Identified by a prosecution witness was

objected to as merely secondary, whereupon the trial judge ordered the testimony
stricken out. This Court, in holding the objection to be premature, said:
It must be noted that the Fiscal was only Identifying the official records of
service of the defendant preparatory to introducing them as evidence. ...
The time for the presentation of the records had not yet come;
presentation was to be made after their Identification. For what purpose
and to what end the Fiscal would introduce them as evidence was not yet
stated or disclosed. ... The objection of counsel for the defendant was,
therefore, premature, especially as the Fiscal had not yet stated for what
purpose he would introduce the said records. ...
The time for objecting the evidence is when the same is offered.
(Emphasis supplied).
The objection of the defense to the photocopies of the airway bins while they were
being Identified and marked as exhibits did not constitute the objection it should have
made when the exhibits were formally offered in evidence by the prosecution. No valid
and timely objection was made at that time. And it is no argument to say that the earlier
objection should be considered a continuing objection under Sec. 37 of Rule 132, for
that provision obviously refers to a single objection to a class of evidence (testimonial or
documentary) which when first offered is considered to encompass the rest of the
evidence. The presumption is, of course, that there was an offer and a seasonable
objection thereto. But, to repeat, no objection was really made in the case before us
because it was not made at the proper time.
It would have been so simple for the defense to reiterate its former objection, this time
seasonably, when the formal offer of exhibits was made. It is curious that it did not,
especially so since the objections to the formal offer of exhibits was made in writing. In
fact, the defense filed no objection at all not only to the photocopies but to all the other
exhibits of the prosecution.
The effect of such omission is obvious. The rule is that evidence not objected to is
deemed admitted and may be validly considered by the court in arriving at its
judgment. 9 This is true even if by its nature the evidence is inadmissible and would
have surely been rejected if it had been challenged at the proper time.
The records certainly would have been the, beet proof of such former
conviction. The certificate was not the best proof. There seems to be no
justification for the presentation of proof of a character. ... Under an
objection upon the ground that the said certificate was not the best proof,
it should have been rejected. Once admitted, however, without objection,

even though not admissible under an objection, we are not inclined now to
reject it. If the defendant had opportunely presented an objection to the
admissibility of said certificate, no doubt the prosecution would have
presented the best proof upon the questions to which said certificate
relates. 10
(It) is universally accepted that when secondary or incompetent evidence
is presented and accepted without any objection on the part of the other
party, the latter is bound thereby and the court is obliged to grant it the
probatory value it deserves. 11
We hold therefore that it was erroneous for the lower courts to reject the photocopies of
the airway bills to prove the liability of the private respondents to the petitioner. While we
may agree that there was really no criminal liability that could attach to them because
they had no fiduciary relationship with ITI, the rejected evidence sufficiently established
their indebtedness to the petitioner. Hence, we must reverse the ruling below that "on
account of the inadmissibility of the prosecution's Exhibits 'B' and 'OO', coupled with the
denial made by the accused, there appears to be no concrete proof of such
accountability."
Accoording to Rule 120, Section 2, of the Rules of Court:
In case of acquittal, unless there is a clear showing that the act from which
the civil liability might arise did not exist, the judgment shall make a finding
on the civil liability of the accused in favor of the offended party.
With the admission of such exhibits pursuant to the ruling above made, we find that
there is concrete proof of the defendant's accountability. More than this, we also
disbelieve the evidence of the private respondents that the said airway bills had been
paid for. The evidence consists only of check stubs corresponding to payments
allegedly made by the accused to the ITI, and we find this insufficient.
As it is Aviles who has alleged payment, it is for him to prove that allegation. He did not
produce any receipt of such payment. He said that the cancelled payment checks had
been lost and relied merely on the check stubs, which are self-serving. The prosecution
correctly stressed in its motion for reconsideration that the accused could have easily
secured a certification from the bank that the checks allegedly issued to ITI had been
honored. No such certification was presented. In short, the private respondents failed to
establish their allegation that payment for the airway bills delivered to them had been
duly remitted to ITI.
In Padilla v. Court of Appeals, 12 we held:

There appear to be no sound reasons to require a separate civil action to

still be filed considering that the facts to be proved in the civil case have
already been established in the criminal proceedings where the accused
was acquitted. He was, in fact, exonerated of the charge. The
constitutional presumption of innocence called for more vigilant efforts on
the part of prosecuting attorneys and defense counsel, a keener
awareness by all witnesses of the serious implications of perjury, and a
more studied consideration by the judge of the entire records and of
applicable statutes and precedents. To require a separate civil action
simply because the accused was I acquitted would mean needless
clogging of court dockets and unnecessary duplication of litigation with all
its attendant loss of time, effort, and money on the part of all concerned.
By the same token, we find that remand of this case to, the trial court for further
hearings would be a needless waste of time and effort to the prejudice of the speedy
administration of justice. Applying the above ruling, we hereby declare therefore, on the
basis of the evidence submitted at the trial as reflected in the records before us, that the
private respondents are liable to the petitioner in the sum of P204,030.66, representing
the cost of the airway bills.
WHEREFORE, the petition is GRANTED. The challenged decision of the Court of
Appeals is SET ASIDE and a new one is rendered ORDERING the private respondents
to. pay to the petitioner the sum of P204,030.66, with 6% interest from November 16,
1981, plus the costs of this suit.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION

G.R. No. 87434 August 5, 1992

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

Carlo L. Aquino for Sweet Lines, Inc.

REGALADO, J.:
A maritime suit 1 was commenced on May 12, 1978 by herein Petitioner Philippine
American General Insurance Co., Inc. (Philamgen) and Tagum Plastics, Inc. (TPI)
against private respondents Sweet Lines, Inc. (SLI) and Davao Veterans Arrastre and
Port Services, Inc. (DVAPSI), along with S.C.I. Line (The Shipping Corporation of India
Limited) and F.E. Zuellig, Inc., as co-defendants in the court a quo, seeking recovery of
the cost of lost or damaged shipment plus exemplary damages, attorney's fees and
costs allegedly due to defendants' negligence, with the following factual backdrop
yielded by the findings of the court below and adopted by respondent court:
It would appear that in or about March 1977, the vessel SS "VISHVA
YASH" belonging to or operated by the foreign common carrier, took on
board at Baton Rouge, LA, two (2) consignments of cargoes for shipment
to Manila and later for transhipment to Davao City, consisting of 600 bags
Low Density Polyethylene 631 and another 6,400 bags Low Density
Polyethylene 647, both consigned to the order of Far East Bank and Trust
Company of Manila, with arrival notice to Tagum Plastics, Inc., Madaum,
Tagum, Davao City. Said cargoes were covered, respectively, by Bills of
Lading Nos. 6 and 7 issued by the foreign common carrier (Exhs. E and
F). The necessary packing or Weight List (Exhs. A and B), as well as the
Commercial Invoices (Exhs. C and D) accompanied the shipment. The
cargoes were likewise insured by the Tagum Plastics Inc. with plaintiff
Philippine American General Insurance Co., Inc., (Exh. G).
In the course of time, the said vessel arrived at Manila and discharged its
cargoes in the Port of Manila for transhipment to Davao City. For this
purpose, the foreign carrier awaited and made use of the services of the
vessel called M/V "Sweet Love" owned and operated by defendant
interisland carrier.
Subject cargoes were loaded in Holds Nos. 2 and 3 of the interisland
carrier. These were commingled with similar cargoes belonging to
Evergreen Plantation and also Standfilco.
On May 15, 1977, the shipment(s) were discharged from the interisland
carrier into the custody of the consignee. A later survey conducted on July
8, 1977, upon the instance of the plaintiff, shows the following:

Of the cargo covered by Bill of Lading No. 25 or (2)6, supposed to contain

6,400 bags of Low Density Polyethylene 647 originally inside 160 pallets,
there were delivered to the consignee 5,413 bags in good order condition.
The survey shows shortages, damages and losses to be as follows:
Undelivered/Damaged bags as tallied during discharge from
vessel-173 bags; undelivered and damaged as noted and
observed whilst stored at the pier-699 bags; and
shortlanded-110 bags (Exhs. P and P-1).
Of the 600 bags of Low Density Polyethylene 631, the survey conducted
on the same day shows an actual delivery to the consignee of only 507
bags in good order condition. Likewise noted were the following losses,
damages and shortages, to wit:
Undelivered/damaged bags and
discharge from vessel-17 bags.

tally

sheets

during

Undelivered and damaged as noted and observed whilst

stored at the pier-66 bags; Shortlanded-10 bags.
Therefore, of said shipment totalling 7,000 bags, originally contained in
175 pallets, only a total of 5,820 bags were delivered to the consignee in
good order condition, leaving a balance of 1,080 bags. Such loss from this
particular shipment is what any or all defendants may be answerable to
(sic).
As already stated, some bags were either shortlanded or were missing,
and some of the 1,080 bags were torn, the contents thereof partly spilled
or were fully/partially emptied, but, worse, the contents thereof
contaminated with foreign matters and therefore could no longer serve
their intended purpose. The position taken by the consignee was that even
those bags which still had some contents were considered as total losses
as the remaining contents were contaminated with foreign matters and
therefore did not (sic) longer serve the intended purpose of the material.
Each bag was valued, taking into account the customs duties and other
taxes paid as well as charges and the conversion value then of a dollar to
the peso, at P110.28 per bag (see Exhs. L and L-1 M and O). 2
Before trial, a compromise agreement was entered into between petitioners, as
plaintiffs, and defendants S.C.I. Line and F.E. Zuellig, upon the latter's payment of
P532.65 in settlement of the claim against them. Whereupon, the trial court in its order
of August 12, 1981 3 granted plaintiffs' motion to dismiss grounded on said amicable

settlement and the case as to S.C.I. Line and F.E. Zuellig was consequently "dismissed
with prejudice and without pronouncement as to costs."
The trial court thereafter rendered judgment in favor of herein petitioners on this
dispositive portion:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff
Philippine General American Insurance Company Inc. and against the
remaining defendants, Sweet Lines Inc. and Davao Veterans Arrastre Inc.
as follows:
Defendant Sweet Lines, Inc. is ordered to pay said plaintiff the sum of
P34,902.00, with legal interest thereon from date of extrajudicial demand
on April 28, 1978 (Exh. M) until fully paid;
Defendant Sweet Lines Inc. and Davao Veterans Arrastre and (Port)
Services Inc. are directed to pay jointly and severally, the plaintiff the sum
of P49,747.55, with legal interest thereon from April 28, 1978 until fully
paid;
Each of said defendants are ordered to pay the plaintiffs the additional
sum of P5,000 is reimbursable attorney's fees and other litigation
expenses;
Each of said defendants shall pay one-fourth (1/4) costs.

Due to the reversal on appeal by respondent court of the trial court's decision on the
ground of prescription, 5 in effect dismissing the complaint of herein petitioners, and the
denial of their motion for reconsideration, 6 petitioners filed the instant petition for review
on certiorari, faulting respondent appellate court with the following errors: (1) in
upholding, without proof, the existence of the so-called prescriptive period; (2)
granting arguendo that the said prescriptive period does exist, in not finding the same to
be null and void; and (3) assuming arguendo that the said prescriptive period is valid
and legal, in failing to conclude that petitioners substantially complied therewith. 7
Parenthetically, we observe that herein petitioners are jointly pursuing this case,
considering their common interest in the shipment subject of the present controversy, to
obviate any question as to who the real party in interest is and to protect their respective
rights as insurer and insured. In any case, there is no impediment to the legal standing
of Petitioner Philamgen, even if it alone were to sue herein private respondents in its
own capacity as insurer, it having been subrogated to all rights of recovery for loss of or
damage to the shipment insured under its Marine Risk Note No. 438734 dated March
31, 1977 8 in view of the full settlement of the claim thereunder as evidenced by the

subrogation receipt 9 issued in its favor by Far East Bank and Trust Co., Davao Branch,
for the account of petitioner TPI.
Upon payment of the loss covered by the policy, the insurer's entitlement to
subrogation pro tanto, being of the highest equity, equips it with a cause of action
against a third party in case of contractual breach. 10 Further, the insurer's subrogatory
right to sue for recovery under the bill of lading in case of loss of or damage to the cargo
is jurisprudentially upheld. 11 However, if an insurer, in the exercise of its subrogatory
right, may proceed against the erring carrier and for all intents and purposes stands in
the place and in substitution of the consignee, a fortiori such insurer is presumed to
know and is just as bound by the contractual terms under the bill of lading as the
insured.
On the first issue, petitioners contend that it was error for the Court of Appeals to
reverse the appealed decision on the supposed ground of prescription when SLI failed
to adduce any evidence in support thereof and that the bills of lading said to contain the
shortened periods for filing a claim and for instituting a court action against the carrier
were never offered in evidence. Considering that the existence and tenor of this
stipulation on the aforesaid periods have allegedly not been established, petitioners
maintain that it is inconceivable how they can possibly comply therewith. 12 In refutation,
SLI avers that it is standard practice in its operations to issue bills of lading for
shipments entrusted to it for carriage and that it in fact issued bills of lading numbered
MD-25 and MD-26 therefor with proof of their existence manifest in the records of the
case. 13 For its part, DVAPSI insists on the propriety of the dismissal of the complaint as
to it due to petitioners' failure to prove its direct responsibility for the loss of and/or
damage to the cargo.14
On this point, in denying petitioner's motion for reconsideration, the Court of Appeals
resolved that although the bills of lading were not offered in evidence, the litigation
obviously revolves on such bills of lading which are practically the documents or
contracts sued upon, hence, they are inevitably involved and their provisions cannot be
disregarded in the determination of the relative rights of the parties thereto. 15
Respondent court correctly passed upon the matter of prescription, since that defense
was so considered and controverted by the parties. This issue may accordingly be
taken cognizance of by the court even if not inceptively raised as a defense so long as
its existence is plainly apparent on the face of relevant pleadings. 16 In the case at bar,
prescription as an affirmative defense was seasonably raised by SLI in its
answer, 17 except that the bills of lading embodying the same were not formally offered
in evidence, thus reducing the bone of contention to whether or not prescription can be
maintained as such defense and, as in this case, consequently upheld on the strength
of mere references thereto.

As petitioners are suing upon SLI's contractual obligation under the contract of carriage
as contained in the bills of lading, such bills of lading can be categorized as actionable
documents which under the Rules must be properly pleaded either as causes of action
or defenses, 18 and the genuineness and due execution of which are deemed admitted
unless specifically denied under oath by the adverse party. 19 The rules on actionable
documents cover and apply to both a cause of action or defense based on said
documents. 20
In the present case and under the aforestated assumption that the time limit involved is
a prescriptive period, respondent carrier duly raised prescription as an affirmative
defense in its answer setting forth paragraph 5 of the pertinent bills of lading which
comprised the stipulation thereon by parties, to wit:
5. Claims for shortage, damage, must be made at the time of delivery to
consignee or agent, if container shows exterior signs of damage or
shortage. Claims for non-delivery, misdelivery, loss or damage must be
filed within 30 days from accrual. Suits arising from shortage, damage or
loss, non-delivery or misdelivery shall be instituted within 60 days from
date of accrual of right of action. Failure to file claims or institute judicial
proceedings as herein provided constitutes waiver of claim or right of
action. In no case shall carrier be liable for any delay, non-delivery,
misdelivery, loss of damage to cargo while cargo is not in actual custody
of carrier. 21
In their reply thereto, herein petitioners, by their own assertions that
2. In connection with Pars. 14 and 15 of defendant Sweet Lines, Inc.'s
Answer, plaintiffs state that such agreements are what the Supreme Court
considers as contracts of adhesion (see Sweet Lines, Inc. vs. Hon.
Bernardo Teves, et al., G.R. No. L-37750, May 19, 1978) and,
consequently, the provisions therein which are contrary to law and public
policy cannot be availed of by answering defendant as valid defenses. 22
thereby failed to controvert the existence of the bills of lading and the aforequoted
provisions therein, hence they impliedly admitted the same when they merely assailed
the validity of subject stipulations.
Petitioners' failure to specifically deny the existence, much less the genuineness and
due execution, of the instruments in question amounts to an admission. Judicial
admissions, verbal or written, made by the parties in the pleadings or in the course of
the trial or other proceedings in the same case are conclusive, no evidence being
required to prove the same, and cannot be contradicted unless shown to have been
made through palpable mistake or that no such admission was made. 23 Moreover,

when the due execution and genuineness of an instrument are deemed admitted
because of the adverse party's failure to make a specific verified denial thereof, the
instrument need not be presented formally in evidence for it may be considered an
admitted fact. 24
Even granting that petitioners' averment in their reply amounts to a denial, it has the
procedural earmarks of what in the law on pleadings is called a negative pregnant, that
is, a denial pregnant with the admission of the substantial facts in the pleading
responded to which are not squarely denied. It is in effect an admission of the averment
it is directed to. 25 Thus, while petitioners objected to the validity of such agreement for
being contrary to public policy, the existence of the bills of lading and said stipulations
were nevertheless impliedly admitted by them.
We find merit in respondent court's comments that petitioners failed to touch on the
matter of the non-presentation of the bills of lading in their brief and earlier on in the
appellate proceedings in this case, hence it is too late in the day to now allow the
litigation to be overturned on that score, for to do so would mean an over-indulgence in
technicalities. Hence, for the reasons already advanced, the non-inclusion of the
controverted bills of lading in the formal offer of evidence cannot, under the facts of this
particular case, be considered a fatal procedural lapse as would bar respondent carrier
from raising the defense of prescription. Petitioners' feigned ignorance of the provisions
of the bills of lading, particularly on the time limitations for filing a claim and for
commencing a suit in court, as their excuse for non-compliance therewith does not
deserve serious attention.
It is to be noted that the carriage of the cargo involved was effected pursuant to an
"Application for Delivery of Cargoes without Original Bill of Lading" issued on May 20,
1977 in Davao City 26 with the notation therein that said application corresponds to and
is subject to the terms of bills of lading MD-25 and MD-26. It would be a safe
assessment to interpret this to mean that, sight unseen, petitioners acknowledged the
existence of said bills of lading. By having the cargo shipped on respondent carrier's
vessel and later making a claim for loss on the basis of the bills of lading, petitioners for
all intents and purposes accepted said bills. Having done so they are bound by all
stipulations contained therein. 27 Verily, as petitioners are suing for recovery on the
contract, and in fact even went as far as assailing its validity by categorizing it as a
contract of adhesion, then they necessarily admit that there is such a contract, their
knowledge of the existence of which with its attendant stipulations they cannot now be
allowed to deny.
On the issue of the validity of the controverted paragraph 5 of the bills of lading above
quoted which unequivocally prescribes a time frame of thirty (30) days for filing a claim
with the carrier in case of loss of or damage to the cargo and sixty (60) days from
accrual of the right of action for instituting an action in court, which periods must concur,

petitioners posit that the alleged shorter prescriptive period which is in the nature of a
limitation on petitioners' right of recovery is unreasonable and that SLI has the burden of
proving otherwise, citing the earlier case of Southern Lines, Inc. vs. Court of Appeals, et
al. 28 They postulate this on the theory that the bills of lading containing the same
constitute contracts of adhesion and are, therefore, void for being contrary to public
policy, supposedly pursuant to the dictum in Sweet Lines, Inc. vs. Teves, et al. 29
Furthermore, they contend, since the liability of private respondents has been clearly
established, to bar petitioners' right of recovery on a mere technicality will pave the way
for unjust enrichment. 30 Contrarily, SLI asserts and defends the reasonableness of the
time limitation within which claims should be filed with the carrier; the necessity for the
same, as this condition for the carrier's liability is uniformly adopted by nearly all
shipping companies if they are to survive the concomitant rigors and risks of the
shipping industry; and the countervailing balance afforded by such stipulation to the
legal presumption of negligence under which the carrier labors in the event of loss of or
damage to the cargo. 31
It has long been held that Article 366 of the Code of Commerce applies not only to
overland
and
river
transportation
but
also
to
maritime
32
transportation. Moreover, we agree that in this jurisdiction, as viewed from another
angle, it is more accurate to state that the filing of a claim with the carrier within the time
limitation therefor under Article 366 actually constitutes a condition precedent to the
accrual of a right of action against a carrier for damages caused to the merchandise.
The shipper or the consignee must allege and prove the fulfillment of the condition and
if he omits such allegations and proof, no right of action against the carrier can accrue in
his favor. As the requirements in Article 366, restated with a slight modification in the
assailed paragraph 5 of the bills of lading, are reasonable conditions precedent, they
are not limitations of action. 33 Being conditions precedent, their performance must
precede a suit for enforcement 34 and the vesting of the right to file spit does not take
place until the happening of these conditions. 35
Now, before an action can properly be commenced all the essential elements of the
cause of action must be in existence, that is, the cause of action must be complete. All
valid conditions precedent to the institution of the particular action, whether prescribed
by statute, fixed by agreement of the parties or implied by law must be performed or
complied with before commencing the action, unless the conduct of the adverse party
has been such as to prevent or waive performance or excuse non-performance of the
condition. 36
It bears restating that a right of action is the right to presently enforce a cause of action,
while a cause of action consists of the operative facts which give rise to such right of
action. The right of action does not arise until the performance of all conditions
precedent to the action and may be taken away by the running of the statute of

limitations, through estoppel, or by other circumstances which do not affect the cause of
action. 37 Performance or fulfillment of all conditions precedent upon which a right of
action depends must be sufficiently alleged, 38 considering that the burden of proof to
show that a party has a right of action is upon the person initiating the suit. 39
More particularly, where the contract of shipment contains a reasonable requirement of
giving notice of loss of or injury to the goods, the giving of such notice is a condition
precedent to the action for loss or injury or the right to enforce the carrier's liability. Such
requirement is not an empty formalism. The fundamental reason or purpose of such a
stipulation is not to relieve the carrier from just liability, but reasonably to inform it that
the shipment has been damaged and that it is charged with liability therefor, and to give
it an opportunity to examine the nature and extent of the injury. This protects the carrier
by affording it an opportunity to make an investigation of a claim while the matter is
fresh and easily investigated so as to safeguard itself from false and fraudulent
claims. 40
Stipulations in bills of lading or other contracts of shipment which require notice of claim
for loss of or damage to goods shipped in order to impose liability on the carrier operate
to prevent the enforcement of the contract when not complied with, that is, notice is a
condition precedent and the carrier is not liable if notice is not given in accordance with
the stipulation, 41 as the failure to comply with such a stipulation in a contract of carriage
with respect to notice of loss or claim for damage bars recovery for the loss or damage
suffered. 42
On the other hand, the validity of a contractual limitation of time for filing the suit itself
against a carrier shorter than the statutory period therefor has generally been upheld as
such stipulation merely affects the shipper's remedy and does not affect the liability of
the carrier. In the absence of any statutory limitation and subject only to the requirement
on the reasonableness of the stipulated limitation period, the parties to a contract of
carriage may fix by agreement a shorter time for the bringing of suit on a claim for the
loss of or damage to the shipment than that provided by the statute of limitations. Such
limitation is not contrary to public policy for it does not in any way defeat the complete
vestiture of the right to recover, but merely requires the assertion of that right by action
at an earlier period than would be necessary to defeat it through the operation of the
ordinary statute of limitations. 43
In the case at bar, there is neither any showing of compliance by petitioners with the
requirement for the filing of a notice of claim within the prescribed period nor any
allegation to that effect. It may then be said that while petitioners may possibly have a
cause of action, for failure to comply with the above condition precedent they lost
whatever right of action they may have in their favor or, token in another sense, that
remedial right or right to relief had prescribed. 44

The shipment in question was discharged into the custody of the consignee on May 15,
1977, and it was from this date that petitioners' cause of action accrued, with thirty (30)
days therefrom within which to file a claim with the carrier for any loss or damage which
may have been suffered by the cargo and thereby perfect their right of action. The
findings of respondent court as supported by petitioners' formal offer of evidence in the
court below show that the claim was filed with SLI only on April 28, 1978, way beyond
the period provided in the bills of lading 45 and violative of the contractual provision, the
inevitable consequence of which is the loss of petitioners' remedy or right to sue. Even
the filing of the complaint on May 12, 1978 is of no remedial or practical consequence,
since the time limits for the filing thereof, whether viewed as a condition precedent or as
a prescriptive period, would in this case be productive of the same result, that is, that
petitioners had no right of action to begin with or, at any rate, their claim was timebarred.
What the court finds rather odd is the fact that petitioner TPI filed a provisional claim
with DVAPSI as early as June 14, 1977 46 and, as found by the trial court, a survey fixing
the extent of loss of and/or damage to the cargo was conducted on July 8, 1977 at the
instance of petitioners. 47 If petitioners had the opportunity and awareness to file such
provisional claim and to cause a survey to be conducted soon after the discharge of the
cargo, then they could very easily have filed the necessary formal, or even a
provisional, claim with SLI itself 48 within the stipulated period therefor, instead of doing
so only on April 28, 1978 despite the vessel's arrival at the port of destination on May
15, 1977. Their failure to timely act brings us to no inference other than the fact that
petitioners slept on their rights and they must now face the consequences of such
inaction.
The ratiocination of the Court of Appeals on this aspect is worth reproducing:
xxx xxx xxx
It must be noted, at this juncture, that the aforestated time limitation in the
presentation of claim for loss or damage, is but a restatement of the rule
prescribed under Art. 366 of the Code of Commerce which reads as
follows:
Art. 366. Within the twenty-four hours following the receipt of
the merchandise, the claim against the carrier for damage or
average which may be found therein upon opening the
packages, may be made, provided that the indications of the
damage or average which gives rise to the claim cannot be
ascertained from the outside part of the packages, in which
case the claims shall be admitted only at the time of the
receipt.

After the periods mentioned have elapsed, or the

transportation charges have been paid, no claim shall be
admitted against the carrier with regard to the condition in
which the goods transported were delivered.
Gleanable therefrom is the fact that subject stipulation even lengthened
the period for presentation of claims thereunder. Such modification has
been sanctioned by the Supreme Court. In the case of Ong Yet (M)ua
Hardware Co., Inc. vs. Mitsui Steamship Co., Ltd., et al., 59 O.G. No. 17,
p. 2764, it ruled that Art. 366 of the Code of Commerce can be modified by
a bill of lading prescribing the period of 90 days after arrival of the ship, for
filing of written claim with the carrier or agent, instead of the 24-hour time
limit after delivery provided in the aforecited legal provision.
Tested, too, under paragraph 5 of said Bill of Lading, it is crystal clear that
the commencement of the instant suit on May 12, 1978 was indeed fatally
late. In view of the express provision that "suits arising from
. . . damage or loss shall be instituted within 60 days from date of accrual
of right of action," the present action necessarily fails on ground of
prescription.
In the absence of constitutional or statutory prohibition, it is
usually held or recognized that it is competent for the parties
to a contract of shipment to agree on a limitation of time
shorter than the statutory period, within which action for
breach of the contract shall be brought, and such limitation
will be enforced if reasonable . . . (13 C.J.S. 496-497)
A perusal of the pertinent provisions of law on the matter would disclose
that there is no constitutional or statutory prohibition infirming paragraph 5
of subject Bill of Lading. The stipulated period of 60 days is reasonable
enough for appellees to ascertain the facts and thereafter to sue, if need
be, and the 60-day period agreed upon by the parties which shortened the
statutory period within which to bring action for breach of contract is valid
and binding. . . . (Emphasis in the original text.) 49
As explained above, the shortened period for filing suit is not unreasonable and has in
fact been generally recognized to be a valid business practice in the shipping industry.
Petitioners' advertence to the Court's holding in the Southern Lines case, supra, is futile
as what was involved was a claim for refund of excess payment. We ruled therein that
non-compliance with the requirement of filing a notice of claim under Article 366 of the
Code of Commerce does not affect the consignee's right of action against the carrier
because said requirement applies only to cases for recovery of damages on account of

loss of or damage to cargo, not to an action for refund of overpayment, and on the
further consideration that neither the Code of Commerce nor the bills of lading therein
provided any time limitation for suing for refund of money paid in excess, except only
that it be filed within a reasonable time.
The ruling in Sweet Lines categorizing the stipulated limitation on venue of action
provided in the subject bill of lading as a contract of adhesion and, under the
circumstances therein, void for being contrary to public policy is evidently likewise
unavailing in view of the discrete environmental facts involved and the fact that the
restriction therein was unreasonable. In any case, Ong Yiu vs. Court of Appeals, et
al., 50 instructs us that "contracts of adhesion wherein one party imposes a ready-made
form of contract on the other . . . are contracts not entirely prohibited. The one who
adheres to the contract is in reality free to reject it entirely; if he adheres he gives his
consent." In the present case, not even an allegation of ignorance of a party excuses
non-compliance with the contractual stipulations since the responsibility for ensuring full
comprehension of the provisions of a contract of carriage devolves not on the carrier but
on the owner, shipper, or consignee as the case may be.
While it is true that substantial compliance with provisions on filing of claim for loss of or
damage to cargo may sometimes suffice, the invocation of such an assumption must be
viewed vis-a-vis the object or purpose which such a provision seeks to attain and that is
to afford the carrier a reasonable opportunity to determine the merits and validity of the
claim and to protect itself against unfounded impositions. 51 Petitioners' would
nevertheless adopt an adamant posture hinged on the issuance by SLI of a "Report on
Losses and Damages," dated May 15, 1977, 52 from which petitioners theorize that this
charges private respondents with actual knowledge of the loss and damage involved in
the present case as would obviate the need for or render superfluous the filing of a
claim within the stipulated period.
Withal, it has merely to be pointed out that the aforementioned report bears this notation
at the lower part thereof: "Damaged by Mla. labor upon unloading; B/L noted at port of
origin," as an explanation for the cause of loss of and/or damage to the cargo, together
with an iterative note stating that "(t)his Copy should be submitted together with your
claim invoice or receipt within 30 days from date of issue otherwise your claim will not
be honored."
Moreover, knowledge on the part of the carrier of the loss of or damage to the goods
deducible from the issuance of said report is not equivalent to nor does it approximate
the legal purpose served by the filing of the requisite claim, that is, to promptly apprise
the carrier about a consignee's intention to file a claim and thus cause the prompt
investigation of the veracity and merit thereof for its protection. It would be an unfair
imposition to require the carrier, upon discovery in the process of preparing the report
on losses or damages of any and all such loss or damage, to presume the existence of

a claim against it when at that time the carrier is expectedly concerned merely with
accounting for each and every shipment and assessing its condition. Unless and until a
notice of claim is therewith timely filed, the carrier cannot be expected to presume that
for every loss or damage tallied, a corresponding claim therefor has been filed or is
already in existence as would alert it to the urgency for an immediate investigation of
the soundness of the claim. The report on losses and damages is not the claim referred
to and required by the bills of lading for it does not fix responsibility for the loss or
damage, but merely states the condition of the goods shipped. The claim contemplated
herein, in whatever form, must be something more than a notice that the goods have
been lost or damaged; it must contain a claim for compensation or indicate an intent to
claim. 53
Thus, to put the legal effect of respondent carrier's report on losses or damages, the
preparation of which is standard procedure upon unloading of cargo at the port of
destination, on the same level as that of a notice of claim by imploring substantial
compliance is definitely farfetched. Besides, the cited notation on the carrier's report
itself makes it clear that the filing of a notice of claim in any case is imperative if carrier
is to be held liable at all for the loss of or damage to cargo.
Turning now to respondent DVAPSI and considering that whatever right of action
petitioners may have against respondent carrier was lost due to their failure to
seasonably file the requisite claim, it would be awkward, to say the least, that by some
convenient process of elimination DVAPSI should proverbially be left holding the bag,
and it would be pure speculation to assume that DVAPSI is probably responsible for the
loss of or damage to cargo. Unlike a common carrier, an arrastre operator does not
labor under a presumption of negligence in case of loss, destruction or deterioration of
goods discharged into its custody. In other words, to hold an arrastre operator liable for
loss of and/or damage to goods entrusted to it there must be preponderant evidence
that it did not exercise due diligence in the handling and care of the goods.
Petitioners failed to pinpoint liability on any of the original defendants and in this
seemingly wild goose-chase, they cannot quite put their finger down on when, where,
how and under whose responsibility the loss or damage probably occurred, or as stated
in paragraph 8 of their basic complaint filed in the court below, whether "(u)pon
discharge of the cargoes from the original carrying vessel, the SS VISHVA YASH,"
and/or upon discharge of the cargoes from the interisland vessel the MV "SWEET
LOVE," in Davao City and later while in the custody of defendant arrastre operator. 54
The testimony of petitioners' own witness, Roberto Cabato, Jr., Marine and Aviation
Claims Manager of petitioner Philamgen, was definitely inconclusive and the
responsibility for the loss or damage could still not be ascertained therefrom:

Q In other words, Mr. Cabato, you only computed the loss on

the basis of the figures submitted to you and based on the
documents like the survey certificate and the certificate of
the arrastre?
A Yes, sir.
Q Therefore, Mr. Cabato, you have no idea how or where
these losses were incurred?
A No, sir.
xxx xxx xxx
Q Mr. Witness, you said that you processed and investigated
the claim involving the shipment in question. Is it not a fact
that in your processing and investigation you considered
how the shipment was transported? Where the losses could
have occurred and what is the extent of the respective
responsibilities of the bailees and/or carriers involved?
xxx xxx xxx
A With respect to the shipment being transported, we have
of course to get into it in order to check whether the
shipment coming in to this port is in accordance with the
policy condition, like in this particular case, the shipment was
transported to Manila and transhipped through an interisland
vessel in accordance with the policy. With respect to the
losses, we have a general view where losses could have
occurred. Of course we will have to consider the different
bailees wherein the shipment must have passed through,
like the ocean vessel, the interisland vessel and the
arrastre, but definitely at that point and time we cannot
determine the extent of each liability. We are only interested
at that point and time in the liability as regards the
underwriter in accordance with the policy that we issued.
xxx xxx xxx
Q Mr. Witness, from the documents, namely, the survey of
Manila Adjusters and Surveyors Company, the survey of
Davao Arrastre contractor and the bills of lading issued by
the defendant Sweet Lines, will you be able to tell the

respective liabilities
concerned?

of

the

bailees

and/or

carriers

A No, sir. (Emphasis ours.) 55

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

of

the

Philippines
COURT

FIRST DIVISION

G.R. No. 105813 September 12, 1994

CONCEPCION
M.
CATUIRA, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
Arnold V. Guerrero & Associates for petitioner.

BELLOSILLO, J.:
Is the testimony of a witness inadmissible in evidence if not formally offered at the time
the witness is called to testify, as required in Sec. 35, in relation to Sec. 34, Rule 132, of
the Revised Rules on Evidence? 1

On 8 June 1990, two (2) Informations for estafa were filed against petitioner Concepcion
M. Catuira with the Regional Trial Court of Calamba, Laguna, for having issued two (2)
checks in payment of her obligation to private complainant Maxima Ocampo when
petitioner had no sufficient funds to cover the same, which checks upon presentment for
payment were dishonored by the drawee bank. 2
After the prosecution had presented its evidence, petitioner Concepcion M. Catuira filed
a Motion to Dismiss (by way of Demurrer to Evidence) under Sec. 15, Rule 119, of the
1985 Revised Rules on Criminal Procedure. 3Petitioner contended that the testimony of
private respondent Ocampo was inadmissible in evidence since it was not properly
introduced when she was called to testify as mandated in Sec. 35, Rule 132, of the
Revised Rules on Evidence. Petitioner also argued that even if the testimony of private
respondent was considered, the evidence of the prosecution still failed to prove that the
checks were issued in payment of an obligation.
On 26 July 1991, the trial court denied the motion to dismiss for lack of merit. On 18
October 1991, it likewise denied the motion to reconsider its denial of the motion to
dismiss.
On 4 November 1991 petitioner elevated her case to the Court of Appeals through a
petition for certiorari, prohibition and mandamus. In a similar move, the appellate court
rejected her petition and sustained the trial court in its denial of the motion to dismiss.
Hence, this recourse seeking to annul the decision of the Court of Appeals rendered on
27 February 1992 as well as its resolution of 1 June 1992. 4
Petitioner claims that the Court of Appeals erred when it accepted the testimony of
private respondent despite the undisputed fact that it was not offered at the time she
was called to testify; her testimony should have been stricken off the record pursuant to
Sec. 34, Rule 132, which prohibits the court from considering evidence which has not
been formally offered; and, it was error for respondent appellate court to declare that
petitioner's objection was not done at the proper time since under Sec. 36, Rule
132, 5 objection to evidence offered orally must be made immediately after the offer is
made. Evidently, petitioner could not have waived her right to object to the admissibility
of the testimony of private respondent since the rule requires that it must be done only
at the time such testimony is presented and the records plainly show that the
opportunity for petitioner to object only came when the prosecution attempted, albeit
belatedly, to offer the testimony after it has rested its case. 6
The petition is devoid of merit. The reason for requiring that evidence be formally
introduced is to enable the court to rule intelligently upon the objection to the questions
which have been asked. 7 As a general rule, the proponent must show its relevancy,
materiality and competency. Where the proponent offers evidence deemed by counsel
of the adverse party to be inadmissible for any reason, the latter has the right to object.

But such right is a mere privilege which can be waived. Necessarily, the objection must
be made at the earliest opportunity, lest silence when there is opportunity to speak may
operate as a waiver of objections. 8
Thus, while it is true that the prosecution failed to offer the questioned testimony when
private respondent was called to the witness stand, petitioner waived this procedural
error by failing to object at the appropriate time, i.e., when the ground for objection
became reasonably apparent the moment private respondent was called to testify
without any prior offer having been made by the proponent. Most apt is the observation
of the appellate court:
While it is true that the prosecution failed to offer in evidence the testimony
of the complaining witness upon calling her to testify and that it was only
after her testimony and after the petitioner moved that it be stricken that
the offer was made, the respondent Court did not gravely err in not
dismissing the case against the petitioner on the ground invoked. For, she
should have objected to the testimony of the complaining witness when it
was not first offered upon calling her and should not have waited in
ambush after she had already finished testifying. By so doing she did not
save the time of the Court in hearing the testimony of the witness that after
all according to her was inadmissible. And for her failure to make known
her objection at the proper time, the procedural error or defect was
waived. 9
Indeed, the rationale behind Sec. 34, Rule 132, is manifest in the minutes of the
Revision of Rules Committee. 10Thus
The new rule would require the testimony of a witness to offer it at the time
the witness is called to testify. This is the best time to offer the testimony
so that the court's time will not be wasted. Since it can right away rule on
whether the testimony is not necessary because it is irrelevant or
immaterial.
If petitioner was genuinely concerned with the ends of justice being served, her
actuations should have been otherwise. Instead, she attempted to capitalize on a mere
technicality to have the estafa case against her dismissed. 11 But even assuming that
petitioner's objection was timely, it was at best pointless and superfluous. For there is no
debating the fact that the testimony of complaining witness is relevant and material in
the criminal prosecution of petitioner for estafa. It is inconceivable that a situation could
exist wherein an offended party's testimony is immaterial in a criminal proceeding.
Consequently, even if the offer was belatedly made by the prosecution, there is no
reason for the testimony to be expunged from the record. On the contrary, the unoffered
oral evidence must be admitted if only to satisfy the court's sense of justice and fairness

and to stress that substantial justice may not be denied merely on the ground of
technicality. 12
WHEREFORE, the decision of the Court of Appeals sustaining the order of the Regional
Trial Court of Calamba, Laguna, Br. 35, denying petitioner's motion to dismiss (by way
of demurrer to evidence) is AFFIRMED. Costs against petitioner.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION

G.R. No. 116149 November 23, 1995

ELVIRA MATO VDA. DE OATE, substituted by her heirs MARIA MATO-ALAMEDA,
AIDA MATO, ZOE MATO, PACITA MATO and JUAN MATO II, petitioners,
vs.
THE COURT OF APPEALS and EULALIA M. TAGUBA, respondents.

KAPUNAN, J.:
Petitioners challenge the decision of the trial court, as affirmed by respondent court, for
lack of basis. They argue that the lower court and the Court of Appeals erred in
considering evidence not formally offered by private respondent in accordance with the
Rules of Court.
The controversy involves Lot No. 1571, a riceland located at Toran, Aparri, Cagayan
covered by Transfer Certificate of Title No. T-5168. On January 10, 1980, an action for
specific performance with damages was filed in the then Court of First Instance of
Cagayan, Branch II by Eulalia Marcita Taguba in her capacity as administratrix of the
estate of the deceased Leonor Taguba against Elvira Mato Vda. de Oate.
As the trial court found, the deceased Leonor Taguba bought the subject parcel of land
from Elvira Mato Vda. de Oate sometime in 1976 for a consideration of P5,000.00
payable in four (4) installments. Accordingly, she paid P2,250.00 on January 20,
1976, 1 P750.00 on February 23, 1976, 2 P1,000.00 on March 20, 1976 3 and P1,000.00
on July 29, 1976. 4 After full payment was made on July 29, 1976, the parties however

failed to reduce their contract in writing. On December 30, 1976, Leonor Taguba died.
The instant complaint was filed when demand was made upon Elvira Mato Vda. de
Oate to execute a public document of sale in favor of the deceased and her heirs and
she refused.
The trial court rejected the petitioners' defense that Elvira Mato Vda. de Oate
contracted a verbal loan from Leonor Taguba in the amount of P12,000.00 payable
within a period of 4 years with 12% interest. Also disbelieved was the allegation that two
(2) parcels of land covered by TCT No. 5167 and TCT No. 5168 (the land in dispute)
were mortgaged by Elvira Mato Vda. de Oate to Leonor Taguba as security for the
payment of the loan and that only P5,000.00 of the P12,000.00 loan was given by
Taguba.
On July 12, 1990, the trial court rendered judgment, the dispositive portion of which
reads:
WHEREFORE judgment is hereby rendered as follows:
1. Declaring the agreement between the late Leonor Taguba and
deceased defendant Elvira Mato Vda. de Oate entered into on 20
January 1976, as a contract of "to sell";
2. Ordering the defendants to execute the proper document to give effect
to the contract within thirty (30) days, otherwise, this Court shall be forced
to order the cancellation of the certificate of title covering Lot No. 1571 of
the Aparri Cadastre, and the Register of Deeds of Cagayan to issue
another certificate of title in the name of the Estate of Leonor Taguba;
3. Ordering the plaintiff to prosecute their money claims against deceased
defendant's estate in accordance with Section 21, Rule 3 of the Rules of
Court.
Costs de oficio.
SO ORDERED. 5
Petitioners appealed to respondent Court of Appeals faulting the trial court's factual
findings. They contended that the trial court erred when it took cognizance of the
plaintiff's evidence, particularly Exhibits "F," "F-1," "F-2" and "F-3", which had been
marked but never formally submitted in evidence as required by the Rules of Court.
Consequently, it was claimed that the trial court erred in relying on the said evidence in
deciding for private respondents.

On December 13, 1993, respondent court affirmed the decision of the trial court. 6 In
sustaining the lower court, the respondent court held that Exhibits "F, "F-1," "F-2" and
"F3" though not formally offered, may still be admitted in evidence for having complied
with the two (2) requisites for admission enunciated in our jurisprudence, 7 that is, (1)
evidence must be duly identified by testimony duly recorded and (2) it must be
incorporated in the records of the case.
A motion for reconsideration of said decision was denied for lack of merit on June 13,
1994. 8
Hence, the present petition for review. Petitioners ascribe to the respondent court the
following errors, to wit:
THE HONORABLE COURT OF APPEALS ERRED IN NOT RULING
THAT DOCUMENTS WHICH ARE MARKED AS EXHIBITS BUT NOT
FORMALLY OFFERED ARE NOT TO BE CONSIDERED BY THE
COURT;
THE HONORABLE COURT OF APPEALS ERRED IN NOT RULING
THAT SINCE THERE WAS NO FIXED PURCHASE PRICE OF THE
LAND AGREED UPON BY THE PARTIES, SPECIFIC PERFORMANCE
COULD NOT BE AVAILED BY THE BUYER TO FORCE THE OWNER OF
THE LAND TO EXECUTE A DEED OF SALE. 9
Section 35 (now Section 34) of Rule 132 of the Rules of Court provides:
Sec. 35. Offer of evidence. The court shall consider no evidence which
has not been formally offered. The purpose for which the evidence is
offered must be specified.
From the foregoing provision, it is clear that for evidence to be considered, the same
must be formally offered. Corollarily, the mere fact that a particular document is
identified and marked as an exhibit does not mean that it has already been offered as
part of the evidence of a party. In Interpacific Transit, Inc. v. Aviles, 10 we had the
occasion to make a distinction between identification of documentary evidence and its
formal offer as an exhibit. We said that the first is done in the course of the trial and is
accompanied by the marking of the evidence as an exhibit while the second is done
only when the party rests its case and not before. A party, therefore, may opt to formally
offer his evidence if he believes that it will advance his cause or not to do so at all. In
the event he chooses to do the latter, the trial court is not authorized by the Rules to
consider the same.
However, in People v. Napat-a 11 citing People v. Mate, 12 we relaxed the foregoing rule
and allowed evidence not formally offered to be admitted and considered by the trial

court provided the following requirements are present, viz.: first, the same must have
been duly identified by testimony duly recorded and, second, the same must have been
incorporated in the records of the case.
In the case at bench, we find, as respondent court did, that these requisites have been
satisfied.
The evidence in question refers to Exhibits "F," receipt for P2,250.00 dated January 20,
1976; "F-1," receipt for P750.00 dated February 23, 1976, "F-2," receipt for P1,000.00
dated March 20, 1976; and "F-3," receipt for another P1,000.00 dated July 29, 1976, all
showing the varying amounts paid by Leonor Taguba to Elvira Mato Vda. de Oate.
These exhibits were marked at the pre-trial for the purpose of identifying them. In fact,
the payment of P5,000.00 was admitted by herein petitioners in the same pre-trial. On
March 5, 1984, Eulalia Marcita Taguba identified the said exhibits in her testimony which
was duly recorded. She testified as follows:
ATTY. LUCERO:
Q Now, you said that the offer of P5,000.00 selling price
accepted by your sister and that she paid P2,250.00 on
January 20, 1976 (Exhibit "F") how about the balance on the
consideration?
A The amount of Seven hundred fifty (P750.00) pesos to
make it Three thousand (P3,000.00) pesos was paid on
February 23, 1976 and the two (2) at One thousand pesos
(P1,000.00) were paid on March 20, 1976 and July 29, 1976,
ma'am.
COURT:
Was that admitted by the other party?
ATTY. LUCERO:
May we put it on record that the amount of P750.00 was paid
by Miss Leonor B. Taguba on February 23, 1976, Your
Honor.
COURT:
First receipt is P2,250.00. 13
xxx xxx xxx

ATTY. LUCERO:
The receipt for the amount of Two Thousand two hundred
fifty (P2,250.00) pesos be marked as Exhibit "F", Your
Honor.
COURT:
Mark it as Exhibit "F." 14
ATTY. LUCERO:
May we request Your Honor that the amount of 750.00
receipt be marked as Exhibit "F-1" dated February 23, 1976;
Exhibit "F-2" is the receipt for P1,000.00 paid on March 20,
1976; all in all, the amount is P5,000.00 including Exhibit "J"
or rather Exhibit "F-3" which is the amount of P1,000.00 and
was paid apparently on July 29, 1976 as partial payment for
the parcel of land covered by TCT No. 5167 (sic),Your
Honor.
xxx xxx xxx
COURT:
Q Will you look at Exhibit "F3" and tell the Court if you know
this Exhibit and why do you know this?
A This was the receipt prepared by my sister paid to Elvira
M. Vda. de Oate the amount of One thousand (P1,000.00)
pesos as the payment of the land she purchased.
Q Why do you say that the same receipt was prepared by
your late sister Leonor Taguba?
A Yes ma'am because I was present when she made that
receipt. 15
Likewise, extant from the records is the witness' explanation of the contents of
each of the said exhibits. Also telling is petitioners' counsel vigorous crossexamination of the said witness who testified on the exhibits in question. 16
Herein subject exhibits were also incorporated and made part of the records of this
case. 17

Finally, petitioners' allegation that an action for specific performance cannot be availed
of in this case because the parties did not agree on a fixed price is likewise devoid of
merit. Private respondent's evidence and testimony remain unrebutted that the contract
price for the parcel of land in question is P5,000.00.
WHEREFORE, finding no reversible error on the part of respondent court, the decision
appealed from is hereby AFFIRMED in toto.
SO ORDERED.
FIRST DIVISION

THE HEIRS OF EMILIO G.R. No. 160832

SANTIOQUE, represented by
FELIMON W. SANTIOQUE,
Petitioners, Present:

PANGANIBAN, CJ.,
- versus - Chairperson,
YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
THE HEIRS OF EMILIO CALMA, CHICO-NAZARIO, JJ.
FABIAN CALMA, AGATONA
CALMA, and DEMETRIA
CALMA, represented by LOPE
AKOL and LUCIA CALMA-AKOL,
and the REGISTER OF DEEDS
OF THE PROVINCE OF TARLAC, Promulgated:
Respondents.
October 27, 2006

--------------------------------------------------------------------------------------------

DECISION
CALLEJO, SR., J.:

This is a petition for review on certiorari of the Decision [1] of the Court of Appeals (CA) in
CA-G.R. CV No. 65352 affirming the Decision [2] of the Regional Trial Court (RTC) in Civil
Case No. 8634, as well as the Resolution dated November 21, 2003 which denied the
motion for reconsideration thereof.

On March 31, 1932, the Governor General granted a homestead patent over a 20.9740hectare parcel of land located in Barrio Tibag, Tarlac, Tarlac. On the basis of said patent,
Original Certificate of Title (OCT) No. 1112 was issued by the Register of Deeds on April 21,
1932. The title was cancelled by Transfer Certificate of Title (TCT) No. 13287. On November 27,
1953, TCT No. 13287 was cancelled by TCT No. 19181 under the names of Agatona Calma,
Fabian Calma, Emilio Calma and Demetria Calma.[3] OnSeptember 23, 1954, the parties
executed a contract of lease in favor of the Spouses Lope A. Akol, who then executed an
Assignment of Leasehold Rights under the Contract of Lease in favor of the Rehabilitation
Finance Corporation (RFC) on January 26, 1955.[4]

In the meantime, Fabian Calma died intestate. A petition for the administration of his
estate was filed in the RTC of Tarlac docketed as Special Proceedings No. 1262. Lucia Calma
was appointed as administratrix of the estate. The heirs executed a Deed of Partition over the
property on April 17, 1967. On September 13, 1967,[5] TCT No. 19181 was cancelled by TCT
No. 71826 in the names of Agatona Calma, Emilio Calma, Demetria Calma and Fabian Calma.

Meanwhile, in 1967, a 20.564-ha parcel of land located in Tibag, Tarlac and identified as
Lot No. 3844 of Pat-H-132104 - prt. was declared for taxation purposes under the name of
Emilio Santioque (Tax Dec. No. 19675).[6] However, the declaration did not bear the name and
signature of the declarant.

On June 3, 1973, Santioque died intestate. His children, Felimon, Rose, Filomena, Jose,
Josefina, Ana, Rufino, and Avelina, all surnamed Santioque, filed on February 29, 1998, a
complaint in the RTC of Tarlac for declaration of nullity of title, reconveyance, with damages,
over a piece of land situated in Tibag,Tarlac City. The case was docketed as Civil Case No.
8634.

The heirs claimed that on March 31, 1932, Emilio was awarded Homestead Patent No.
18577 by virtue of Homestead Application No. 132104 over a lot located in Barrio Tibag, Tarlac
City; the said lot was identified as Lot No. 3844 of the Tarlac Cadastre No. 274, with an area of
20.5464 hectares; OCT No. 1112 was issued to Emilio on April 21, 1932, and from then had
enjoyed full ownership and dominion over the said lot; and prior to his death, Emilio ordered
Felimon to work for the recovery of the said property. [7]They further averred that when Felimon
went to the Register of Deeds of Tarlac for a final verification, he discovered that the lot covered
by OCT No. 1112 was already registered in the names of Agatona, Fabian, Emilio and Demetria,
all surnamed Calma, under TCT No. 19181 issued on November 27, 1953. It appeared from the
said TCT No. 19181 that the title was a transfer from TCT No. 13287.[8]

The heirs contended that Emilio was the first registrant of the subject lot and, as
such, was its lawful owner. The land could no longer be the subject matter of
subsequent cadastral proceedings, and any title issued pursuant thereto would be void.
They prayed that judgment be rendered in their favor, as follows:

WHEREFORE, it is most respectfully prayed that after due notice

and hearing, judgment be rendered ordering the nullification of TCT No.
19181 and TCT No. 13287 of the Register of Deeds of Tarlac and
upholding and declaring the existence, legality and validity of the
Homestead Patent bearing No. 18577 and OCT No. 1112 issued in the
name of the late Emilio Santioque and

1. Ordering Defendants to reimburse to the Plaintiffs the income,

profits or benefits unjustly derived by them from TCT No. 19181 and
13287 the estimation of which is left to the sound discretion of the
Honorable Court;

2. Ordering the Defendants to pay to the Plaintiffs the amount

of P50,000.00 as attorneys fees;

3. Cost of suit;

4. Any and all remedies just and equitable under the premises. [9]
The heirs of Calma filed a motion to dismiss the complaint alleging that (a) the
action had prescribed and was barred by laches; (b) the claim has been abandoned,
and (c) the complaint stated no cause of action. [10] The court denied the motion. The
heirs of Calma filed their answer, reiterating the grounds and allegations in their motion
to dismiss by way of special and affirmative defenses.[11]

During trial, Felimon Santioque testified for the plaintiffs. He admitted that they
had no copy of OCT No. 1112; the Register of Deeds likewise had no record of the said
title, nor TCT No. 13287.[12] He discovered from the said office that the subject lot was
covered by TCT No. 19181 with the names of Agatona Calma and her co-heirs as
owners.[13] The title was, in turn, cancelled and replaced by TCT No. 71286 also in the
names of Agatona Calma and her co-heirs.

On cross-examination, Felimon declared that his father, Emilio, mentioned the

property to the plaintiffs sometime before he died in 1973. From that time on, he tried to
ascertain the particulars of the property and succeeded in 1990 only when he went
through the records at the Community Environment and Natural Resources Office
(CENRO).[14]

Felimon declared that, on August 4, 1992, he secured a document from the

Lands Management Bureau (LMB) stating that on March 1 to 6, 1930, a parcel of land
with an area of 209,746 square meters located in Tibag, Tarlac, Tarlac, was surveyed
by W. Santiago and approved on February 27, 1932.[15] However, the document was not
certified by the Chief Geodetic Engineer. Neither did the plaintiffs present the employee
of the Bureau who prepared the document to testify on its authenticity.

Felimon admitted that Amando Bangayan, Chief, Records Management Division

of the LMB certified that, based on the survey records of Cadastral Survey No. 274 and
as indicated in the Area Sheet of Lot 3844, Cad. 274, Emilio Santioque was the claimant
of the lot. However, the Bureau had no available records of Homestead Application No.
132104 and Homestead Patent No. 18577 dated March 31, 1932.[16] Felino Cortez,
Chief, Ordinary and Cadastral Decree Division of the Land Registration Authority (LRA),
certified that after due verification of the records of the Book of Cadastral Lots, Lot 3844
had been the subject of Cadastral Case No. 61, LRC Cad. Record No. 1879; the case
had been decided but no final decree of registration had been issued; and the lot was
subject to the annotation con patent No. 18577 segun report of B.L.[17] The Register of
Deeds of Tarlac stated that, on January 25, 1998, despite diligent efforts, he could not
locate TCT No. 13287 and OCT No. 1112 or any other document leading to the
issuance of TCT No. 19181. He explained that in 1987 and 1988, his office had to be
reconstructed, and titles and documents had to be moved from one place to another.
[18]
The Register of Deeds issued a certification [19] dated September 10, 1998 stating that
despite diligent efforts, he could not locate OCT No. 1112 or any document showing
how it was cancelled.The Records Officer of the Register of Deeds in Tarlac City also
certified that OCT No. 1112 and TCT No. 13287 could not be found despite diligent
efforts.[20]

After the heirs of Santioque rested their case, the defendants, heirs of Calma,
demurred to plaintiffs evidence and sought its dismissal on the ground that the latter
failed to establish a preponderance of evidence to support their ownership over the
property.[21]

On August 11, 1999, the trial court issued an Order [22] granting the demurrer and
dismissing the complaint on the ground that plaintiffs failed to establish their case.

The heirs of Santioque appealed said order to the CA claiming that

THE TRIAL COURT ERRED IN HOLDING THAT PLAINTIFFSAPPELLANTS FAILED TO PROVE THAT ORIGINAL CERTIFICATE OF
TITLE NO. 1112 WAS ISSUED IN THE NAME OF EMILIO SANTIOQUE,
THE PLAINTIFFS PREDECESSOR-IN-INTEREST, DESPITE THE FACT

THAT SUFFICIENT, ADEQUATE AND CONVINCING EVIDENCE HAVE

BEEN PRESENTED TO PROVE THAT SAID OCT 1112 WAS ISSUED IN
THE NAME OF EMILIO SANTIOQUE.

II

THE TRIAL COURT ERRED IN RESORTING TO SPECULATIONS,

SURMISES AND CONJECTURES WHEN IT RULED THAT OCT 1112
COULD HAVE BEEN ISSUED TO ANOTHER PERSON OTHER THAN
THE LATE EMILIO SANTIOQUE.

III

THE TRIAL COURT ALSO RESORTED TO SPECULATIONS, SURMISES

AND CONJECTURES WHEN IT HELD THAT THERE WAS NO
EVIDENCE TO PROVE THAT PATENT NO. 18577 WAS ISSUED TO
EMILIO SANTIOQUE, THUS DISREGARDING THE COMPETENT AND
SUFFICIENT EVIDENCE ADDUCED BY PLAINTIFFS-APPELLANTS TO
PROVE THAT SAID PATENT WAS ISSUED TO EMILIO SANTIOQUE.

IV

THE TRIAL COURT ERRED IN HOLDING THAT TCT NO. 19181 ISSUED
TO DEFENDANTS-APPELLEES WAS PRESUMED TO HAVE BEEN
ISSUED IN THE ORDINARY COURSE OF BUSINESS WHEN IN FACT
ITS ISSUANCE IS PLAINLY FRAUDULENT AND EVIDENTLY
ANOMALOUS.

THE TRIAL COURT ERRED IN SWEEPINGLY CONCLUDING THAT

DEFENDANTS-APPELLEES HAVE ACQUIRED THE SUBJECT
PROPERTY BY ACQUISITIVE PRESCRIPTION AND IN RULING THAT
PLAINTIFFS-APPELLANTS HAVE SLEPT ON THEIR RIGHT FOR MANY
YEARS AND THAT THEY HAVE CONSTRUCTIVE NOTICE OF THE
ISSUANCE OF DEFENDANTS-APPELLEES TITLE, THUS THEY ARE
ESTOPPED BY LACHES.

VI

THE TRIAL COURT ERRED IN REFUSING WITHOUT VALID CAUSE TO

ISSUE SUBPOENA DUCES TECUM AND AD TESTIFICANDUM TO THE
REGISTER OF DEEDS OF TARLAC AND THE LAND REGISTRATION
AUTHORITY IN ORDER TO SHED LIGHT ON THE WHEREABOUTS OF
OCT 1112 AND THE ISSUANCE OF TCT NOS. 13287, 19181 AND
71826.[23]

On August 30, 2000, Felimon Santioque wrote to the Director of the National
Bureau of Investigation (NBI), Federico Opinion, Jr., requesting for his assistance in
investigating the disappearance of the copy of the Registrar of Deeds of Tarlac of
OCT No. 1112 and TCT No. 13287. [24] Attached to the said letter were the following
certifications and investigation reports of the LRA:
1.

Xerox copy of TCT No. 71826 dated September 13, 1967 under the
names of Agatona Calma, Emilio Calma, Dorotea Calma and Lucia
Calma.[25]

2.

Certified xerox copy Tax Declaration No. 22116 in the name of

Agatona Calma, et al;[26]

3.

Certified xerox copy of Tax Declaration No. 39766 in the name of

Agatona Calma, et al;[27]

4.

Certified xerox copy of Tax Declaration No. 35226 in the names of

Agatona Calma, et al;[28]

5.

Certified xerox copy of the Investigation Report of Mr. Felix Cabrera

Investigator, Land Registration Authority, dated September 30, 1999,
finding that there are no documents in the Registry supporting the
cancellation of OCT 1112 and the issuance of TCT Nos. 13287, and
that TCT No. 71826 is irregularly issued inasmuch as no transaction
which would justify its issuance appears in the Primary Entry Book; [29]

6.

Certification of Mr. Andres B. Obiena, Records Officer I of the

Register of Deeds of Tarlac, Tarlac, dated April 5, 1999, that OCT No.
1112 could not be located in the archives;[30]

7.

Certification of Mr. Meliton I. Vicente, Jr., Community Environment

and Natural Resources Officer of the DENR, Region III, that Lot No.
3844 is already covered by Homestead Application No. 132104 with
Patent No. 1877 issued to Emilio Santioque on March 31, 1932; [31]

8.

Certified xerox copy of Record Book Page 383 signed by Florida S.

Quiaoit, Records Management Unit, CENRO III-6, Tarlac City, showing
that Emilio Santioque is a claimant of Lot No. 3844 under Homestead
Application No. HA-132104 and Patent No. 1877; [32]

9.

Certified xerox copy of Area Sheet over Lot 3844 prepared for Emilio
Santioque, certified by Emilanda M. David, Record Officer 1,
DENRO, San Fernando, Pampanga dated February 29, 2000;[33]

10. Certified xerox copy of Case No. 6, Cad Record No. I, showing that
Emilio Santioque was the claimant of Lot No. 3844, under Pat-H132104 Part.[34]

The heirs of Santioque did not present the said documents at the trial below but
they included the same in their appellants brief.

Without waiting for the report of the NBI on their request, the heirs of Santioque
filed a motion with the CA for the early resolution of the case. [35] On June 27, 2003, the
CA affirmed the appealed decision.[36] The appellate court did not give probative weight
to the certifications and other documents submitted by the heirs of Santioque, as their
authenticity had not been established and the signatories therein were not presented for
cross-examination. It noted that none of the crucial documents were presented in the
trial court. Assuming that OCT No. 1112 was indeed issued to Emilio Santioque, the
claim of his heirs was nevertheless barred by laches; the latter must bear the
consequences of their fathers inaction.

The heirs of Santioque filed a motion for reconsideration, which the CA resolved
to deny on November 21, 2003.[37]

The heirs of Santioque, now petitioners, seek relief from this Court on the
following issues:
I.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED
IN NOT GIVING CREDENCE TO THE CERTIFICATIONS, DOCUMENTS,
RECORDS AND PICTURES SUBMITTED BY PETITIONER BEFORE
THE SAID COURT ON THE GROUND THAT THEY WERE NOT
SUBMITTED IN EVIDENCE AT THE TRIAL AND THAT THEIR
AUTHENTICITY HAS NOT BEEN ESTABLISHED, DESPITE THE FACT
THAT PETITIONERS FAILURE TO SUBMIT THE SAME AS EVIDENCE
BEFORE THE TRIAL COURT AND TO ESTABLISH THEIR
AUTHENTICITY WAS DUE TO THE PREMATURE AND UNJUSTIFIED
DISMISSAL OF THEIR COMPLAINT, WHICH WAS TANTAMOUNT TO
DENIAL OF THEIR RIGHT TO BE HEARD AND TO DUE PROCESS.

II.
THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING
THAT DESPITE PETITIONERS FAILURE TO PRESENT THEIR
ORIGINAL CERTIFICATE OF TITLE, OCT NO. 1112, SUFFICIENT AND
CONVINCING EVIDENCE WERE ADDUCED BY PETITIONERS TO
PROVE THAT SAID TITLE WAS ISSUED TO THEIR PREDECESSOR-ININTEREST, EMILIO SANTIOQUE. ON THE OTHER HAND, SINCE
PETITIONERS COMPLAINT WAS DISMISSED BY THE TRIAL COURT
ON RESPONDENTS DEMURRER TO EVIDENCE, THE RESPONDENTS
FAILED EITHER (1) TO CONTROVERT THE EVIDENCE ADDUCED BY
PETITIONERS IN SUPPORT OF THEIR CLAIM OVER THE SUBJECT
PROPERTY OR THEIR PRETENSION OF FACTS.

III.

THE
HONORABLE
COURT
OF
APPEALS
GRAVELY
MISAPPREHENDED THE FACTS OF THE CASE WHEN IT HELD THAT
RESPONDENTS ARE IN ACTUAL POSSESSION OF THE SUBJECT
PROPERTY, DESPITE CLEAR ABSENCE OF EVIDENCE BY
RESPONDENTS TO SUPPORT THEIR CLAIM OF POSSESSION AND
AS EVIDENCED BY THE PICTURES SUBMITTED BY PETITIONERS.

IV.
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
PETITIONERS DID NOTHING TO RECOVER THEIR CERTIFICATE OF
TITLE, OCT NO. 1112, IN A DIRECT ACTION IF INDEED SAID OCT NO.
1112 WAS ISSUED TO EMILIO SANTIOQUE AND INVALIDLY
CANCELLED AND REPLACED WITH TCT NO. 13287 IN THE NAME OF
RESPONDENTS, AND THAT THE PETITIONERS SHOULD BEAR THE
CONSEQUENCES OF THEIR FATHER EMILIO SANTIOQUES
INACTION, DESPITE THE FACT THAT PETITIONERS HAVE BEEN
VIGILANT OF THEIR RIGHTS AND, HENCE, PRESCRIPTION AND
LACHES DO NOT BAR PETITIONERS COMPLAINT.

V.
WHETHER OR NOT REMAND OF THE INSTANT CASE TO
THE LOWER COURT IS PROPER, INSTEAD OF A DECISION ON THE
MERITS.[38]

Petitioners contend that the appellate court erred in not giving credence to the
certifications, records, documents and pictures they attached to their appellants brief.
They aver that they had not yet discovered the said documents when they presented
their evidence at the trial court; hence, they could have presented the documents and
their affiants during the rebuttal stage of the proceedings had the trial court not
prematurely aborted the proceedings before it. They insist that they were denied their
right to due process when the trial court granted respondents demurrer to evidence and
dismissed the case.[39]

Petitioners aver that they have clearly shown and proven their claim over the
property, particularly through Tax Dec. No. 19675 and the contents of the Record Book.
They posit that judicial notice should be taken that tax declarations are usually issued in
the name of the prospective owner upon a showing of the basis of ownership. On the
other hand, respondents have no factual and evidentiary basis to support their claim
over the subject property since they have not adduced before the trial court any
documentary and testimonial evidence to support ownership of the property. Petitioners
further contend that they have clearly shown, through the pictures they submitted before
the appellate court, that respondents have not been in actual possession of the
property; hence, it cannot be presumed that respondents, as registered owners, are
likewise in possession of the subject property.[40]

Petitioners aver that prescription and laches do not bar their complaint since they have
been vigilant in protecting their rights. They contend that Emilio was old and sickly and
died at an old age. Laches presupposes negligence, and neither Emilio nor his
successors were negligent in protecting their rights over the subject property. It took
sometime before they could lodge a complaint against respondents because they had to
make inquiries first and retrieve documents from different offices to support their claim.
[41]

For their part, respondents aver that there were no indicia of proof that OCT No.1112
was really issued to Emilio. The evidence proffered by the petitioners only tends to
prove that Emilio was a mere claimant. It is not incumbent upon the respondents to
present any proof that they are the owners of the subject lot because the property is
registered in their name. The mere fact that the records are not available would not ipso
facto mean that the transactions made affecting OCT No. 1112 were irregular.[42]

Respondents further aver that the appellate court was correct in not giving
credence to the documents, which were not submitted during the trial even though they
were obtainable at that time. To allow the introduction of these documents on appeal
would violate the essence of due process as the respondents would not be able to

interpose objections to their admissibility. Even if these documents were admitted, they
would not help petitioners case since they would still not prove that Emilios claim
ripened into full ownership. Respondents likewise agree with the finding of the appellate
court that the complaint is already barred by prescription and laches. [43]

The petition is without merit.

The core issues in this case are: (1) whether the trial court erred in granting the
demurrer to evidence of respondents, and (2) whether petitioners claim is barred by
prescription and laches.

On the first issue, the Court holds that CA ruling which affirmed that of the RTC
granting the demurrer is correct.

Demurrer to evidence authorizes a judgment on the merits of the case without

the defendant having to submit evidence on his part as he would ordinarily have to do, if
it is shown by plaintiffs evidence that the latter is not entitled to the relief sought. The
demurrer, therefore, is an aid or instrument for the expeditious termination of an action,
similar to a motion to dismiss, which a court or tribunal may either grant or deny.[44]

A demurrer to evidence may be issued when, upon the facts and the law, the
plaintiff has shown no right to relief. [45] Where the plaintiffs evidence together with such
inferences and conclusions as may reasonably be drawn therefrom does not warrant
recovery against the defendant, a demurrer to evidence should be sustained. [46] A
demurrer to evidence is likewise sustainable when, admitting every proven fact
favorable to the plaintiff and indulging in his favor all conclusions fairly and reasonably
inferable therefrom, the plaintiff has failed to make out one or more of the material
elements of his case,[47] or when there is no evidence to support an allegation necessary

to his claim.[48] It should be sustained where the plaintiffs evidence is prima facie
insufficient for a recovery.[49]

Petitioners, as plaintiffs below, were obliged to prove their claim in their complaint
that their father, Emilio, applied for and was granted Homestead Patent No. 18577, and
that OCT No. 1112 was issued by the Register of Deeds in his name on the basis of
said patent. Petitioners had the burden of proof to present evidence on the fact in issue
to establish their claim by their own evidence required by law. [50] More so, where, as in
this case, on the face of TCT No. 19181 under the names of the respondents, it was
derived from TCT No. 13287, which in turn cancelled OCT No. 1112 issued on April 21,
1932 on the basis of a homestead patent. It must be stressed that the original certificate
of title carries a strong presumption that the provisions of law governing the registration
of land have been complied with. The OCT enjoys a presumption of validity. Once the
title is registered, the owners can rest secure on their ownership and possession.
[51]
Once a homestead patent granted in accordance with law is registered, the certificate
of title issued in virtue of said patent has the force and effect of a Torrens title issued
under the land registration law.[52]

In the present case, petitioners failed to prove the material allegations in their
complaint that Emilio Santioque applied for and was granted Patent No. 18577 and that
OCT No. 1112 was issued on the basis thereof. We quote with approval the ruling of the
RTC:

The plaintiffs failed to prove that OCT [N]o. 1112 was issued in the
name of Emilio Santioque. It was issued all right, but there is no evidence
it was in the name of Emilio Santioque. OCT [N]o. 1112 could have been
in the name of another person. Exhibit B merely shows that Emilio
Santioque is a survey claimant.

Exhibit A contradicted all these claims of plaintiffs. It is stated

therein that Lot No. 3844 of Tarlac Cadastre, Cadastral Case [N]o. 61,

L.R.C. Record No. 1879 was previously decided but no final decree of
registration has yet issued thereon. Hence, there was already a decision
by the cadastral court. In whose favor the land was awarded is a mystery
up to the date.

There is also no evidence that [P]atent [N]o. 18577 was issued to

Emilio Santioque. In fact, there is no available record to prove that [P]atent
[N]o. 18577 was in the name of Emilio Santioque. (Exhibit B-1) It is safe to
assume that the decision of the cadastral Court awarded the land to a
person who was also the awardee of [P]atent [N]o. 18577, because of the
entry said lot is subject to annotation quote: con patent no. 18577 segun
report of the B.L. , this being the very reason why no decree of registration
was issued pursuant to the cadastral proceeding. [53]

Petitioners even failed to present Homestead Application No. 132104 allegedly

filed by Emilio with the Bureau of Lands. In fact, as evidenced by the Certification of the
LMB, it had no record of said application and patent. The records of the LMB relative to
Cadastral Case No. 61 and LRC Cad. Record No. 1879 were, likewise, not presented.

It should be noted that, under Section 14 of Commonwealth Act 141, The Public
Land Act, there are certain requirements that a homestead applicant should comply with
before a patent could be issued to him, thus:

SECTION 14. No certificate shall be given or patent issued for the

land applied for until at least one-fifth of the land has been improved and
cultivated. The period within which the land shall be cultivated shall not be
less than one nor more than five years, from the date of the approval of
the application. The applicant shall, within the said period, notify the
Director of Lands as soon as he is ready to acquire the title. If at the date
of such notice, the applicant shall prove to the satisfaction of the Director

of Lands, that he has resided continuously for at least one year in the
municipality in which the land is located, or in a municipality adjacent to
the same, and has cultivated at least one-fifth of the land continuously
since the approval of the application, and shall make affidavit that no part
of said land has been alienated or encumbered, and that he has complied
with all the requirements of this Act, then, upon the payment of five pesos,
as final fee, he shall be entitled to a patent.

Petitioners failed to present competent and credible evidence that Emilio Calma
complied with the aforesaid requirements before his death.

Petitioners rely on Tax Dec. No. 19675 to substantiate their claim over the
subject property. However, it is axiomatic that tax receipts and tax declarations of
ownership for taxation purposes do not constitute sufficient proof of ownership. They
must be supported by other effective proofs. [54]

The appellate court was also correct in not giving credence to the certifications
which petitioners submitted before it on the ground that the said documents were not
presented in the trial court. Petitioners, thus, failed to prove the authenticity of said
documents because they failed to present the government officials who certified the
same.

It is well settled that courts will consider as evidence only that which has been
formally offered,[55] otherwise, the opposing party would be denied due process of law.
[56]
Thus, the Court explained in one case that

A formal offer is necessary since judges are required to base their findings
of fact and judgment onlyand strictlyupon the evidence offered by the
parties at the trial. To allow a party to attach any document to his pleading
and then expect the court to consider it as evidence may draw
unwarranted consequences. The opposing party will be deprived of his
chance to examine the document and object to its admissibility. The
appellate court will have difficulty reviewing documents not previously
scrutinized by the court below.[57]

Petitioners, however, contend that they could have presented the said
documents during the rebuttal stage of the proceedings before the trial court. It bears
stressing, however, that a plaintiff is bound to introduce all evidence that supports his
case during the presentation of his evidence in chief. [58] A party holding the affirmative of
an issue is bound to present all of the evidence on the case in chief before the close of
the proof, and may not add to it by the device of rebuttal. [59] After the parties have
produced their respective direct proofs, they are allowed to offer rebutting evidence only.
[60]

Generally, rebuttal evidence is confined to that which explains, disproves, or

counteracts evidence introduced by the adverse party. It is not intended to give a party
an opportunity to tell his story twice or to present evidence that was proper in the case
in chief. [61] However, the court for good reasons, in the furtherance of justice, may
permit them to offer evidence upon their original case, and its ruling will not be disturbed
in the appellate court where no abuse of discretion appears. This is usually allowed
when the evidence is newly discovered, or where it has been omitted through
inadvertence or mistake, or where the purpose of the evidence is to correct evidence
previously offered.[62]

It is true that petitioners failed to adduce rebuttal evidence because respondents

filed a Demurrer to Evidence. However, petitioners should have filed a motion for new
trial based on newly-discovered evidence under Rule 37, Section 2 of the 1997 Rules of
Civil Procedure after the trial court granted the demurrer and dismissed the complaint.

Petitioners aver that the documents they submitted on appeal were not yet
discovered during the presentation of their evidence before the trial court. [63] Assuming
this claim to be true, the Court notes however, that petitioners nevertheless failed to
establish that they could not, with reasonable diligence, have discovered and produced
the documents at the trial, and prove that such documents would probably alter the
result, if presented. The documents belatedly submitted by petitioners on appeal can
hardly be considered newly discovered since they are public records. Petitioners could
have earlier secured copies thereof during trial. Moreover, a perusal of these documents
reveals that even if admitted, they would not, in any way, bolster petitioners case, or
remedy the vacuum in their evidence-in-chief.

Further, we agree with the appellate court that petitioners complaint is barred by
prescription and laches. An action for reconveyance prescribes in ten years, the point of
reference being the date of registration of the deed or the date of issuance of the
certificate of title over the property.[64] Even if we reckon the prescription period from
TCT No. 19181 issued on November 27, 1953, the only title verified to be in the name of

respondents, more than ten years have already elapsed since then until the time the
petitioners filed their complaint on February 29, 1998. An action for reconveyance is
imprescriptible only when the plaintiff is in actual possession of the property. [65] In the
present case, there is no showing that petitioners were in actual possession of the
subject property.

In any event, petitioners cause of action is likewise barred by laches. The

essence of laches or stale demands is the failure or neglect for an unreasonable and
unexplained length of time to do that which, by exercising due diligence, could or should
have been done earlier, thus giving rise to the presumption that the party entitled to
assert it either has abandoned or declined to assert it. [66] Petitioners right of action had
long been barred by laches during the lifetime of their father, their predecessor in
interest; petitioners must necessarily bear the consequences of their predecessors
inaction. We quote, with approval, the following ruling of the CA:

The trial court further held that There is also no evidence that
patent No. 18577 was issued to Emilio Santioque. In fact, there is no
available record to prove that patent No. 18577 was in the name of Emilio
Santioque. (Exhibit B-1). We add that nowhere in the certificates of title
presented by appellants is the source of OCT No. 1112 indicated as
Homestead Patent No. 18577.

Even assuming that appellants constructive notice of another title

over Lot No. 3844 could be reckoned only from 1953 when TCT No.
19181 was issued to replace TCT No. 13287, still appellants and their
predecessors-in-interest waited 45 years before bringing the action
below. Meanwhile, Lot No. 3844 became the subject of various litigations
among appellees and with third parties, as well as several transactions,
such as the contract of lease between Emilio Calmas heirs and spouses
Lope A. Akol from 1954-1964 (Entry No. 46563); the Assignment of
Leasehold rights to Rehabilitation Finance Corporation, 1955 (Entry No.
53205); the Termination of Lease (Entry No. 1-7584; the Partial Release of
Leasehold (Entry No. 65888). No proof was submitted in the court below
to belie the actual possession of the subject lot by the appellees, who as
the registered owners are also presumed to be in possession of the same.

While the indefeasibility of the Torrens title of appellees can be

claimed only if a previous valid title to the same parcel does not exist
(Register of Deeds vs. Philippine National Bank, 13 SCRA 46), appellants
have failed to establish that OCT No. 1112 was issued in their fathers
name and was later invalidly cancelled in 1947 and replaced with TCT No.
13287. Only in 1998 was an action brought to directly question the validity
of TCT No. 13287. The principle of laches has indeed come into play.
Laches or stale demand is based upon grounds of public policy which
requires for the peace of society the discouragement of stale actions, and
unlike the statute of limitations is not a mere question of time but primarily
a question of the inequality or unfairness of permitting a right or claim to
be enforced or asserted (Pangilinan vs. Court of Appeals, 279 SCRA
590). In Agne vs. Director of Lands, 181 SCRA 793, 809 [1990], it was
held that the failure of the registered owners to assert their claim over the
disputed property for almost thirty (30) years constituted laches.

The question of laches is addressed to the sound discretion of the

court. Laches being an equitable doctrine, its application is controlled by
equitable considerations, although the better rule is that courts under the
principle of equity will not be guided or bound strictly by the statute of
limitations or doctrine of laches when to do so would result in manifest
wrong or injusticed result (Santiago vs. Court of Appeals, 278 SCRA 98).

We are aware of rulings to the effect that even if the defendants

have been in actual possession of the property for more than ten (10)
years, the registered title of plaintiffs over the property cannot be lost by
prescription or laches (Board of Liquidators vs. Roxas, 179 SCRA 809); or
that an action by the registered owner to recover possession based on a
Torrens title is not barred by laches (Dablo vs. Court of Appeals, 226
SCRA 621). However, the laches committed by the appellants pertained to
the establishment of their very title itself. Only after they have recovered
their title could they then have standing to question the title of the
appellants and recover possession of the subject lot. Besides, it has been
held that an action for reconveyance or quieting of title instituted only after
thirty (30) years could be barred by laches (City Government of Danao vs.
Monteverde Consunji, 358 SCRA 107). This being so, all the more should

an action to recover title, filed after 45 years, be barred by laches where

the complainants title is itself clearly doubtful. [67]

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.
The Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 65352
areAFFIRMED. Cost against the petitioners.

SO ORDERED.
THIRD DIVISION
[G.R. No. 136860. January 20, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGPANGA LIBNAO
KITTEN and ROSITA NUNGA y VALENCIA, accused.

AGPANGA LIBNAO y KITTEN, accused-appellant.

DECISION
PUNO, J.:
Before us is an appeal from the Decision dated November 19, 1998 of the Regional
Trial Court, Branch 65, Tarlac City, finding appellant Agpanga Libnao and her coaccused Rosita Nunga guilty of violating Article II, Section 4 of R.A. No. 6425, otherwise
known as the Dangerous Drugs Act of 1972. [1] For their conviction, each was sentenced
to suffer an imprisonment of reclusion perpetua and to pay a fine of two million pesos.
Appellant and her co-accused were charged under the following Information:
That on or about October 20, 1996 at around 1:00 oclock dawn, in the Municipality of
Tarlac, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused conspiring, confederating and helping with one
another, without being lawfully authorized, did then and there willfully, unlawfully and
feloniously make delivery/transport with intent to sell marijuana leaves wrapped in a
transparent plastic weighing approximately eight (8) kilos, which is in violation of Section

4, Article II of RA 6425, otherwise known as the Dangerous Drugs Act of 1972, as

amended.
CONTRARY TO LAW.[2]
During their arraignment, both entered a plea of Not Guilty. Trial on the merits
ensued.
It appears from the evidence adduced by the prosecution that in August of 1996,
intelligence operatives of the Philippine National Police (PNP) stationed in Tarlac, Tarlac
began conducting surveillance operation on suspected drug dealers in the area. They
learned from their asset that a certain woman from Tajiri, Tarlac and a companion from
Baguio City were transporting illegal drugs once a month in big bulks.
On October 19, 1996, at about 10 oclock in the evening, Chief Inspector Benjamin
Arceo, Tarlac Police Chief, held a briefing in connection with a tip which his office
received that the two drug pushers, riding in a tricycle, would be making a delivery that
night. An hour later, the Police Alert Team installed a checkpoint in Barangay
Salapungan to apprehend the suspects.Witness SPO1 Marlon Gamotea, PO3 Florante
Ferrer and SPO3 Roberto Aquino were assigned to man the checkpoint.
At about 1:00 oclock in the morning of the following day, SPO1 Gamotea and PO3
Ferrer flagged down a passing tricycle. It had two female passengers seated inside,
who were later identified as the appellant Agpanga Libnao and her co-accused Rosita
Nunga.[3] In front of them was a black bag. Suspicious of the black bag and the twos
uneasy behavior when asked about its ownership and content, the officers invited them
to Kabayan Center No.2 located at the same barangay. They brought with them the
black bag.
Upon reaching the center, PO3 Ferrer fetched Barangay Captain Roy Pascual to
witness the opening of the black bag. In the meantime, the two women and the bag
were turned over to the investigator on duty, SPO3 Arthur Antonio. As soon as the
barangay captain arrived, the black bag was opened in the presence of the appellant,
her co-accused and personnel of the center. Found inside it were eight bricks of leaves
sealed in plastic bags and covered with newspaper. The leaves were suspected to be
marijuana.
To determine who owns the bag and its contents, SPO3 Antonio interrogated the
two. Rosita Nunga stated that it was owned by the appellant. The latter, in turn, disputed
this allegation. Thereafter, they were made to sign a confiscation receipt without the
assistance of any counsel, as they were not informed of their right to have one. During
the course of the investigation, not even close relatives of theirs were present.

The seized articles were later brought to the PNP Crime Laboratory in San
Fernando, Pampanga on October 23, 1996. Forensic Chemist Daisy P. Babu conducted
a laboratory examination on them. She concluded that the articles were marijuana
leaves weighing eight kilos.[4]
For their part, both accused denied the accusation against them. Rosita Nunga
testified that in the evening of October 19,1996, she went to buy medicine for her ailing
child at a pharmacy near the Tarlac Provincial Hospital. The child was suffering from
diarrhea, occasioned by abdominal pain. To return to their house, she boarded a tricycle
bound for Barangay Tariji, where she resides. Along the way, the tricycle she was riding
was flagged down by a policeman at a checkpoint in Barangay Salapungan. She was
taken aback when the officer invited her to the Kabayan Center. It was there that she
was confronted with the black bag allegedly containing eight bricks of marijuana
leaves. She disputed owning the bag and knowing its contents. She also denied sitting
beside the appellant in the passengers seat inside the tricycle, although she admitted
noticing a male passenger behind the driver.
Remarkably, appellant did not appear in court and was only represented by her
lawyer. The latter marked and submitted in evidence an affidavit executed by one Efren
Gannod, a security guard of Philippine Rabbit Bus Lines in Tarlac, Tarlac. The sworn
statement declared that at about 0220H on October 20, 1996, SPO2 Antonio arrived at
their terminal and arrested a certain woman who boarded their Bus No. 983. The
incident was recorded in the companys logbook. Gannod, however, was not presented
in court to attest that the woman referred in his affidavit was the appellant.
After trial, the court convicted appellant and her co-accused Rosita Nunga, thus:
WHEREFORE, finding both accused guilty beyond reasonable doubt of the offense of
violation of Article II, Section 4 of RA 6425 in relation to RA 7659, they are hereby
sentenced to suffer an imprisonment of reclusion perpetua and to pay a fine of two
million pesos.
SO ORDERED.[5]
Aggrieved by the verdict, appellant interposed the present appeal. In her brief, she
assigned the following errors:
1. The Honorable Regional Trial Court failed to appreciate the contention of the defense
that the right of accused against illegal and unwarranted arrest and search was violated
by the police officers who arrested both accused.
2. The Honorable Court failed to appreciate the contention of the defense that the right
of the accused to custodial investigation was deliberately violated by the peace officers
who apprehended and investigated the accused.

3. The Honorable Court miserably failed to evaluate the material inconsistencies in the
testimonies of the prosecutions witnesses which inconsistencies cast doubt and make
incredible the contention and version of the prosecution.
4. The Honorable Court gravely abused its discretion when it appreciated and
considered the documentary and object evidence of the prosecution not formally offered
amounting to ignorance of the law.[6]
We are not persuaded by these contentions; hence, the appeal must be dismissed.
In arguing that her arrest was unlawful, appellant capitalizes on the absence of a
warrant for her arrest. She contends that at the time she was apprehended by the police
officers, she was not committing any offense but was merely riding a tricycle. In the
same manner, she impugns the search made on her belongings as illegal as it was
done without a valid warrant or under circumstances when warrantless search is
permissible. Consequently, any evidence obtained therein is inadmissible against her.
These arguments fail to impress. The general rule is that a search may be
conducted by law enforcers only on the strength of a search warrant validly issued by a
judge as provided in Article III, Section 2 of the 1987 Constitution, thus:
The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant and warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized. [7]
The constitutional guarantee is not a blanket prohibition against all searches and
seizures as it operates only against unreasonable searches and seizures. Searches and
seizures are as a rule unreasonable unless authorized by a validly issued search
warrant or warrant of arrest. Thus, the fundamental protection accorded by the search
and seizure clause is that between persons and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants
and warrants of arrest.[8]
Be that as it may, the requirement that a judicial warrant must be obtained prior to
the carrying out of a search and seizure is not absolute. There are certain familiar
exceptions to the rule, one of which relates to search of moving vehicles. [9] Warrantless
search and seizure of moving vehicles are allowed in recognition of the impracticability
of securing a warrant under said circumstances as the vehicle can be quickly moved out
of the locality or jurisdiction in which the warrant may be sought. [10] Peace officers in
such cases, however, are limited to routine checks where the examination of the vehicle

is limited to visual inspection.[11] When a vehicle is stopped and subjected to an

extensive search, such would be constitutionally permissible only if the officers made it
upon probable cause, i.e., upon a belief, reasonably arising out of circumstances known
to the seizing officer, that an automobile or other vehicle contains as item, article or
object which by law is subject to seizure and destruction. [12]
In earlier decisions, we held that there was probable cause in the following
instances: (a) where the distinctive odor of marijuana emanated from the plastic bag
carried by the accused;[13] (b) where an informer positively identified the accused who
was observed to be acting suspiciously; [14] (c) where the accused who were riding a
jeepney were stopped and searched by policemen who had earlier received confidential
reports that said accused would transport a quantity of marijuana; [15] (d) where Narcom
agents had received information that a Caucasian coming from Sagada, Mountain
Province had in his possession prohibited drugs and when the Narcom agents
confronted the accused Caucasian because of a conspicuous bulge in his waistline, he
failed to present his passport and other identification papers when requested to do so;
[16]
(f) where the moving vehicle was stopped and searched on the basis of intelligence
information and clandestine reports by a deep penetration agent or spy -- one who
participated in the drug smuggling activities of the syndicate to which the accused
belong -- that said accused were bringing prohibited drugs into the country; [17] (g) where
the arresting officers had received a confidential information that the accused, whose
identity as a drug distributor was established in a previous test-buy operation, would be
boarding MV Dona Virginia and probably carrying shabu with him; [18] (h) where police
officers received an information that the accused, who was carrying a suspiciouslooking gray luggage bag, would transport marijuana in a bag to Manila; [19] and (i) where
the appearance of the accused and the color of the bag he was carrying fitted the
description given by a civilian asset.[20]
The warrantless search in the case at bench is not bereft of a probable cause. The
Tarlac Police Intelligence Division had been conducting surveillance operation for three
months in the area. The surveillance yielded the information that once a month,
appellant and her co-accused Rosita Nunga transport drugs in big bulks. At 10:00 pm of
October 19, 1996, the police received a tip that the two will be transporting drugs that
night riding a tricycle. Surely, the two were intercepted three hours later, riding a tricycle
and carrying a suspicious-looking black bag, which possibly contained the drugs in
bulk. When they were asked who owned it and what its content was, both became
uneasy. Under these circumstances, the warrantless search and seizure of appellants
bag was not illegal.
It is also clear that at the time she was apprehended, she was committing a criminal
offense. She was making a delivery or transporting prohibited drugs in violation of
Article II, Section 4 of R.A. No. 6425. Under the Rules of Court, one of the instances a

police officer is permitted to carry out a warrantless arrest is when the person to be
arrested is caught committing a crime in flagrante delicto, thus:
Section 5. Arrest without Warrant; when lawful. - A peace officer or a private person
may, without warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person to be
arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.
x x x.[21] (emphasis supplied)
Appellant also takes issue of the fact that she was not assisted by a lawyer when
police officers interrogated her. She claimed that she was not duly informed of her right
to remain silent and to have competent counsel of her choice. Hence, she argues that
the confession or admission obtained therein should be considered inadmissible in
evidence against her.
These contentions deserve scant attention. Appellant did not make any confession
during her custodial investigation. In determining the guilt of the appellant and her coaccused, the trial court based its decision on the testimonies of prosecution witnesses
and on the existence of the confiscated marijuana. We quote the relevant portion of its
decision:
Earlier in the course of the proceedings, the court then presided by Judge Angel
Parazo, granted bail to accused Agpanga Libnao, ruling that the confiscation receipt
signed by both accused (Exhibit C) is inadmissible because they were not assisted by a
counsel. Confronted with this same issue, this court finds the postulate to rest on good
authority and will therefore reiterate its inadmissibility.
Since the prosecution had not presented any extrajudicial confession extracted from
both accused as evidence of their guilt, the court finds it needless to discuss any
answer given by both accused as a result of the police interrogation while in their
custody. By force of necessity, therefore, the only issue to be resolved by the
court is whether or not, based on the prosecutions evidence, both accused can
be convicted.[22] (emphasis supplied)

Appellant then faults the trial court for appreciating and taking into account the
object and documentary evidence of the prosecution despite the latters failure to
formally offer them.Absent any formal offer, she argues that they again must be deemed
inadmissible.
The contention is untenable. Evidence not formally offered can be considered by
the court as long as they have been properly identified by testimony duly recorded and
they have themselves been incorporated in the records of the case. [23] All the
documentary and object evidence in this case were properly identified, presented and
marked as exhibits in court, including the bricks of marijuana. [24] Even without their
formal offer, therefore, the prosecution can still establish the case because witnesses
properly identified those exhibits, and their testimonies are recorded. [25] Furthermore,
appellants counsel had cross-examined the prosecution witnesses who testified on the
exhibits.[26]
Appellant also assails the credibility of the testimonies of the prosecution
witnesses. She first cites the inconsistency between the testimony of SPO1 Marlon
Gamotea, who said that it was SPO2 Antonio who opened the black bag containing the
marijuana; and that of SPO2 Antonio, who declared that the bag was already open
when he arrived at the Kabayan Center.She then focuses on the police officers failure to
remember the family name of the driver of the tricycle where she allegedly rode,
claiming that this is improbable and contrary to human experience.
Again, appellants arguments lack merit. The alleged inconsistencies she mentions
refer only to minor details and not to material points regarding the basic elements of the
crime. They are inconsequential that they do not affect the credibility of the witnesses
nor detract from the established fact that appellant and her co-accused were
transporting marijuana. Testimonies of witnesses need only corroborate each other on
important and relevant details concerning the principal occurrence. [27] The identity of the
person who opened the bag is clearly immaterial to the guilt of the appellant. Besides, it
is to be expected that the testimony of witnesses regarding the same incident may be
inconsistent in some aspects because different persons may have different recollections
of the same incident.[28]
Likewise, we find nothing improbable in the failure of the police officers to note and
remember the name of the tricycle driver for the reason that it was unnecessary for
them to do so. It was not shown that the driver was in complicity with the appellant and
her co-accused in the commission of the crime.
To be sure, credence was properly accorded to the testimonies of prosecution
witnesses, who are law enforcers. When police officers have no motive to testify falsely
against the accused, courts are inclined to uphold this presumption. [29] In this case, no

evidence has been presented to suggest any improper motive on the part of the police
enforcers in arresting the appellant.
Against the credible positive testimonies of the prosecution witnesses, appellants
defense of denial and alibi cannot stand. The defense of denial and alibi has been
invariably viewed by the courts with disfavor for it can just as easily be concocted and is
a common and standard defense ploy in most cases involving violation of the
Dangerous Drugs Act.[30] It has to be substantiated by clear and convincing evidence.
[31]
The sole proof presented in the lower court by the appellant to support her claim of
denial and alibi was a sworn statement, which was not even affirmed on the witness
stand by the affiant. Hence, we reject her defense.
IN VIEW WHEREOF, the instant appeal is DENIED. The decision of the trial court
finding appellant guilty beyond reasonable doubt of the offense of violation of Article II,
Section 4 of R.A. No. 6425 in relation to R.A. No. 7659, and sentencing her to an
imprisonment of reclusion perpetua and to pay a fine of two million pesos is hereby
AFFIRMED.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION
G.R. No. L-28499 September 30, 1977
VICTORIAS
MILLING
COMPANY,
INC., petitioner,
vs.
ONG SU AND THE HONORABLE TIBURCIO S. EVALLE IN HIS CAPACITY AS
DIRECTOR OF PATENT'S,respondents.
Gonzalo W. Gonzalez, Agpalo & Associates for petitioner.
Salonga, Ordoez, Yap & Associates and Armando G. Gungon for respondents.

FERNANDEZ, J.:
This is a petition to review the decision of the Director of Patents in Inter Partes Case
No. 304 entitled "Victorias Milling Company, Inc., petitioner, verus, Ong Su" dated
August 15, 1967 denying the petition to cancel the certificate of registration issued by

the philippines Patent Office on Jurie 20, 1961 in favor of Ong Su covering the tradenwk
"VALENTINE" and design and used on refined sugar. 1
The petitioner, Victorias Milling Company, Inc., a domestic corporation and engaged in
the manufacture and sale of refined granulated sugar is the owner of the trademark
"VICTORIAS" and d design registered in the Philippines Patent Office on November 9,
1961.
The respondent Ong Su is engaged in the repacking and sale of refine sugar and is the
owner of the trademark "VALENTINE" and design registered in the Philippines Patent
Office on June 20, 1961.
On October 4, 1963, Victorias Mining Company, Inc. filed with the Philippine Patent
Office a petition to cancel the registration of the Ong Su trademark "Valentine."
The petitioner allied that its tradermrk "Victorias" and diamond design has distinctive of
its sugar long before the respondent used its trademark; that the registration of
"Valentine" and design has caused and will cause great damage to petitioner by reason
of mistake, confusion, or deception among the purchasers because it is similar to its
"Victorias" trademark; that registration was fradulently obtained by Ong Su and that
"Valentine" faisely suggests a connection with Saint Valentine or with an institution or
belief connected therewith. 2
In his answer to the petition the respondent averred that he is doing business under the
name and style "Valentine Packaging" and has registered the trademark "Valentine" with
a design for sugar and was issued Certificate of Registration No. 8891 dated June 20,
1961; that the trademark "Victorias" with diamond design and the trademark "Valentine"
with a design are two different marks; and that there is absolutely no likelihood of
confusion, mistake or deception to purchasers through the concurrent use of the
petitioner's mark "Victorias" with a diamond design and the respondents' mark
"Valentine" with a design in connection with sugar. 3
The petitioner's only witness, Pacifica V. Vijandre its vice-president and stockholder,
testified that Victorias Milling Company, Inc. has used since 1947 the trademark
"Victorias" and diamond design with colors of red and black on sacks of sugar having
variable weight and size of 5 lbs., 10 lbs., 25 N., 50 lbs., and 100 lbs.; that the company
had transactions on or sales of sugar with local dealers such as Kim Kee, Chu Yu &
Co., Limouan & Co., Luzon Merchandising Corp. and ARCA that the average sale from
1958 to 1962 was P30,000,000 and for the whole year of 1962 the sale was
P46,000,000; that he came to know that the trademark "Valentine" appeared in the
market in 1962 through the report of his company's field agents; and that except for the
words "Valentine and Victorias", the design and wordings of the bags are practically the
same. 4

The respondent, Ong Su decWW that he adopted and began using his trademark
"Valentine" and design before and continuously after World War II in the Philippines,
particularly on paper bags used as containers for starch, coffee and sugar; and that
since January 1955 he continued using said trademark on repacked sugar.
Arturo Chicane a witness for the respondent, testified that he was a distribution agent of
Ong Su that he travelled a lot but he river own across an instance when the respondent
Ong Su product was mistaken for the petitioner's product; that he found the diamond
design to be quite common in combination with other words used as trademarks as a
background or to enhance their appearance, such as "DIAMOND" and design (Exhibit
"54-A"), "EAGLE" and design (Exhibit "53"), and "SUNRISE" and design (Exhibit "55"),
not belonging to the petitioner, which are also used on repacked sugar by various sugar
dealers; and that said designs and the color of the lines on which drawn had not been
regarded as trademarks but we ornamentation. 5
The Director of Patents denied the petition to cancel the certificate of registration of the
respondent Ong Su covering the trademark "Valentine" and design because:
From the facts of record, I find nothing to sustain the petition.
There is no question that as to their respective literal designation the
trademarks are different. One is VALENTINE while the other is
VICTORIAS. Thus, as to sound and connotation there is no dispute as to
their dissimilarity.
However, from the evidence and pleadings, it appears that petitioner is
relying heavily on its diamond design, the color scheme, and the printing
sequence or arrangement of such legends as weight, contents and
manufacturer or packer.
I am of the firm belief that the diamond Portion of petitioner's trademark
hag not bolstered its cause. Common geometric shapes such as circles,
ovals, squares, triangles, diamonds, and the like, when used as vehicles
for display on word marks, ordinarily are not retarded as indicia of origin
for goods to which the marks are applied, unless of course they have
acquired secondary meaning. I have scoured the records completely to
ascertain if the petitioner has submitted satisfactory evidence in this
regard, but I find absolutely nothing to base a ruling that the triangle (sic)
design has acquired a secondary meaning with respect to its sugar
business.
It is the common practice for trademark owners to register designs forming
outline of their distinguishing mark, but when the registrant of such design

relies upon registration in proceeding based upon likelihood of confusion

of purchasers, he assumes the burden of showing that the design portion
of the mark has been so used that purchasers recognize the design,
standing alone, as indicating goods emanating from the registrant. Bausch
& Lomb Optical Co., v. Overseas Finance & Trading Co., Inc. (ComrPats)
112 USPQ 6.
Considering herein that the petitioner failed to establish that diamond
design component of its mark has acquired a secondary meaning and that
the literal portion of the marks have no similarity, there is no reasonable
likelihood of purchaser confusion resulting from registrant's use of
VALENTINE within a diamond and petitioner's use of VICTORIAS within a
diamond.
As regards the colors black and red used, it is fundamental in trademark
jurisprudence that color alone, unless displayed in a distinct or arbitrary
design, does not function as a trademark, inasmuch as here, or
elsewhere, the colors black and red are not so displayed by the petitioner,
and are primary colors commonly and freely used in the printing business.
Finally, as regards the printing sequences or arrangement of such legends
as weight, contents, and manufacturer or packer, I regard it as merely a
matter pertaining to the address of the goods' a matter involving unfair
competition over which the Patent Office has no jurisdiction. (See: Menzi
& Co., Inc, vs. Andres Co Dee. No. 59 dated Oct. 31, 1952, Dir. of
Patents.) And in the case of A. E. Staley Manufacturing Co., Inc. vs.
Andres Co. v. Tan Tong, citing, Gillette Safety Razor Go. v. Triangle
Mechanical Laboratories, 31 USPQ 24; Aladdin Mfg. Co. v. Mantle Lamp
Co., 21 USPQ 58; and J. C. Eno (U.S.) Limited v. Deshayas 29 USPQ
179), it was held that the tribunals of the Philippines Patent Office have no
jurisdiction over questions of unfair competition. At most, the petitioner's
recourse is for it to seek relief in civil courts.
The allegations that the registration of VALENTINE was obtained
fraudulently; that it falsely suggests a connection with St. Valentine; and
that it is merely descriptive or deceptively misdescriptive of sugar have no
basis in law and fact. 6
The petitioner submits that the Director of Patents committed the following errors:
I

THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING

THAT PETITIONER'S REGISTERED DIAMOND DESIGN IS NOT AN
INDEX OF ORIGIN.
II
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING
THAT PETITIONER IS REQUIRED TO ESTABLISH THAT ITS DIAMOND
DESIGN HAS ACQUIRED A SECONDARY MEANING.
III
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING
PETITIONER'S DIAMOND DESIGN HAS NOT ACQUIRED A
SECONDARY MEANING.
IV
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING
THAT THE DETAILS OF PETITIONER'S DESIGN THAT HAVE BEEN
IMITATED BY RESPONDENT ONG SU MERELY PERTAIN TO
THE'DRESS OF THE GOODS.'
V
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN CONFINING
HIS COMPARISON OF PETITIONER'S AND RESPONDENT'S
RESPECTIVE TRADEMARKS TO ONE SOLE ITEM OF THEIR DESIGN,
IGNORING THE COMPLETE LABELS AS ACTUALLY USED IN TRADE
AND SEEN BY CONSUMERS.
VI
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN TAKING THE
POSITION THAT IN CASES OF TRADEMARK CANCELLATION
INVOLVING, AMONG OTHERS, OBVIOUS ACTS OF UNFAIR
COMPETITION, HE NEED NOT TAKE ANY ACTION WHATSOEVER,
SINCE HE SUPPOSEDLY HAS NO JURISDICTION IN THE PREMISES.
VII
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING
THAT PETITIONER'S REGISTERED COLOR DESIGN DOES NOT
FUNCTION AS A TRADEMARK.

VIII
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING
THAT BECAUSE THE LITERAL PORTIONS OF THE RESPECTIVE
TRADEMARKS IN QUESTION, NAMELY, THE RESPECTIVE NAMES
'VICTORIAS' AND 'VALENTINE', HAVE NO SIMILARITY, THERE IS NO
REASONABLE LIKELIHOOD OF PURCHASER CONFUSION.
IX
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN ASSUMING
THAT PETITIONER, OR THE OWNER OF ANY IMITATED OR
INFRINGED TRADEMARK FOR THAT MATTER, MUST ESTABLISH
ACTUAL PURCHASER CONFUSION.
X
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN PREVENTING
THE TESTIMONIES OF RESPONDENT ONG SU AND WITNESS
ERNESTO DURAN AS REBUTTAL WITNESSES FOR PETITIONER,
SAID RULINGS OF RESPONDENT DIRECTOR CONSTITUTING
REVERSIBLE ERROR AND THE DENIAL OF PROCEDURAL DUE
PROCESS.
XI
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING
THAT THE REGISTRATION OF THE VALENTINE TRADEMARK BY
RESPONDENT ONG SU WAS NOT PRUDULENTLY OBTAINED.
XII
THE RESPONDENT DIRECTOR OF PATENTS, ACTING TfIROUGH
HEARING OFFICER AMANDO MARQUEZ, ERRED IN ADMITTING
RESPONDENT ONG SU'S EXHIBITS PERTAINING TO ONE 'MARIANO
ANG SAID NAME NOT HAVING BEEN CLEARLY ESTABLISHED AS AN
ALIAS,
ALHTHOUGH
ADMITTEDLY
UNAUTHORIZED,
OF
7
RESPONDENT ONG SU.
The contention of petitioner that the diamond design in its trademark is an index of
origin has no merit. The petitioner has not shown that the design portion of the mark has
been so used that purchasers recognize the design, standing alone, as indicating goods
coming from the registrant. As correctly stated by the Director of Patents, common
geometric shapes such as diamonds ordinarily are not regarded as indicia of origin for

goods to which the remarks are applied unless they have acquired a secondary
meaning. And there is no evidence that the diamond design in the trademark of the
petitioner has acquired a secondary meaning with respect to its sugar business. The
word "Victorias" is what Identifies the sugar contained in the bag as the product of the
petitioner. Indeed, the petitioner has advertised its sugar in bags marked "Victorias" with
oval, hexagor. and other designs.
The evidence is that Ong Su has been using his trademark since prior to the last World
War and he obtained the registration thereof on June 20, 1961. Vijandre declared that
the petitioner started to use its trademark only in 1947. Said trademark was registered
on November 9, 1961. It cannot be said, therefore, that the respondent Ong Su imitated
the trademark of the petitioner.
The petitioner avers that purchasers of sugar are likely to confuse petitioner's "Victorias"
trademark and respondent Ong Su's "Valentine" trademark because of the following
similarities:
1. Both trademarks have the same diamond design with the slight
modification that the lines of the "VALENTINE" diamond design are a little
protruding at the ends.
2. The lines forming the diamond design in both trademarks consist of two
lines, namely, the outer portion and the inner portion.
3. The outer portion of the diamond design of both trademarks has the
color black as shown in the specimens (Exhibits "A" and "B"). The, inner
line of the diamond design in both trademarks has the color red.
4. In both trade marks, the word "PURE" in black print appears inside of
the upper portion of the diamond design.
5. In both trade marks, the word "VICTORIAS" and the word VALENTINE'
placed within the diamond design are conspicuously colored red.
6. The letter "V" in Victorias and the letter "V" in Valentine are Identically
placed.
7. The word "VICTORIAS" and the word "VALENTINE" are Identically
arranged, the same containing the same number of letters.
8. Immediately below the words "VICTORIAS" and "VALENTINE"appears
the words "REFINED SUGAR".

9. underneath the diamond design in both trademarks are the words "FINE
GRANULATED" and below said phrase are the words 'CANE SUGAR'with
a small diamond design.
10. Both, trade marks are used on refines sugar.
11. The words "PURE," "VALENTINE," "VICTORIAS," "FINE
GRANULATED" and "CANE SUGAR" in both trade marks are same has
arranged and printed.9
The respondent Ong Su maintains that the alleged are minor for the following reason:
Appellant attempts to show the possibility or likelihood of purchaser
confusion by pointing out alleged similarities in the packages in question,
e.g. "Pure Refined Sugar" appearing in both marks in question. It should
be noted, however, that these words are merely descriptive commonly
applied to the goods, namely, sugar, and cannot be exclusively
appropriated by the petitioner. The other alleged similarities pointed to by
appellant that the lines forming the diamond design in both trademarks
consist of two lines, the outer portion and the inner portion; that the
diamond design in both tradeniarks has the color black and the inner line
of both designs has the red color; that the diamond design as used by the
petitioner and by respondent are of the same size; that the letter 'V' in
Victorias and the letter "V" in "Valentine" are the same size; and that the
letter 'V' in VICTORIAS and the letter "V" in the Valentine package are
Identically pIaced in the diamond; and that the word "Victorias" and the
word "VALENTINE" are Identically arranged within the diamond are, we
submit with respect, minor and insignificant for the purpose of this petition
even if the observations of appellant are correct. 10
It seems clear that the words "Valentine" and "Victorias" and the names and places of
business of Victorias Milling Company, Inc. and Ong Su are the dominant features of the
trademarks in question. The petitioner has not established such a substantial similarity
between the two trademarks in question as to warrant the cancellation of the trademark
'Valentine'of the respondent Su. The Director of Patents correctly ruled that he has no
jurisdiction over the issue of unfair competition. Under Section 27 of the Trade Mark
Law, Republic Act No. 166, after actions for unfair competition shall be brought before
the proper Court of First Instance.
The refusal of the Director of Patents to allow respondent Ong Su and witness Emesto
Duran to testify on rebuttal is not a reversible effort.

The only'purpose of the petitioner in proposing to call Ong Su as a witness on rebuttal is

to ask the latter if he had judicial authority to use the alias 'Mariano'. Ang It appears,
however, that the counsel of petitioner had already extensively cross-examined Ong Su
as to a citizenship, alien certificate of registration and the other name Mariano Ang. It
seems immaterial whether or not Ong Su has judicial authority to use Mariano Ang as
an alias. There is evidence that even before the last World War, the trademark
'Valentine' and design had been used under the name of either Ong Su or Mariano Ang.
The petitioner sought to present Emesto T. Duran as rebuttal witness to prove that there
was a confusion among consumers or buyers of sugar caused by the alleged sorority of
the "Victorias" and "Valentine" trademarks. The presentation of Emesto T. Duran as
rebuttal witness was objected to by counsel of the respondent on the ground that the
evidence sought to be elicited from Duran did not directly contradict the testimony of
witness Chicane The objection was sustained by the hearing officer whose ruling was
subsequently confer by the Director of Patents. Counsel for the petitioner made the
following formal offer of proof:
ATTY. GONZALEZ:
Your Honor please, in view of the ruling of the Honorable Director your
Honor please on the admissibility of certain items of evidence, which
resolution dated February 21, 1966 was received by undersigned counsel
for the petitioner on February 22, 1966, said resolution was setting the
hearing of this case for this morning, I wish to state, I wish to register my
exception, my respectful exception to said resolution. In view of the
resolution not permitting me to present Mr. Ernesto Duran, my proposed
witness whom I attempted to present at the last hearing, I wish to offer as
proof the following items ol' the testimony of witness Duran. Now as he
would go shopping with his parents and that sometime in the month of
February 1963 he went to the Aranque market, and while he was buying
groceries he saw a shelf with five (5) lbs. bag of sugar with the bag and
package he thought was VICTORIAS. Witness Duran will further testify
that he went to the shelf and pointed to the bag of sugar and hesaid Isang
support ng Victorias Ang. That the sugar was taken by the shopkeeper
and when he went home he found out that the sugar was marked
VALENTINE. lie went on again on another time later and saw that the shelf
was still filled with five (5) pounds (lbs,) bag VALENTINE sugar. The shelf
also has bags of VICTORIAS sugar side by side with VALENTINE sugar,
that the package of VALENTINE looked so much alike will VICTORIAS
sugar that he was misled into pointing to VALENTINE and asked for
VICTORIAS.
HEARING OFFICER:

What is that, is that supposed to be the testimony of witness Duran?

ATTY. GONZALEZ:
Yes, your Honor, I am offering as proof of what the witness Duran would
have testified. Since this office has ruled that I cannot present him an offer
of proof is being made for purposes of putting on record what he would
have testified to on record in accordance with the Rules of Evidence. 11
Having made the foregoing formal offer of proof, the petitioner cannot complain that it
was denied procedural due process.
The proposed testimony of Emesto T. Duran that in February 1963 he went to Arangue
market and bought one bag of sugar which he thought was "Victorias" and when he
went home he found out that the sugar was marked "Valentine" is not sufficient
evidence that the two trademarks are so similar that buyers of sugar are confused. The
words "Victorias" and "Valentine" are not similar in spelling and do not have a similar
sound when pronounced. Even the diamond designs are different. The diamond design
of the trademark "Valentine" has protruding fines at the comers. Even an illiterate
person can see the difference between the two diamond designs.
There is no evidence that the respondent Ong Su had obtained the registration of his
trademark "Valentine" and design by means of fraud. The said trademark was registered
in the Philippines Patent Office before the petitioner registered its trademark.
The record and evidence show that Ong Su had also used in his business the name
Mariano Ang. Hence the licenses and permits in the name of Ong Su and/or Mariano
Ang were correctly admitted as evidence.
WHEREFORE the decision of the Director of Patents sought to be reviewed is hereby
affirmed, without pronouncement as to costs.
SO ORDERED.
THIRD DIVISION

COVERDALE ABARQUEZ, G.R. No. 150762

y EVANGELISTA,

Petitioner,
Present:
Quisumbing, J.,
Chairman,
Carpio,
- versus - Carpio Morales, and
Tinga, JJ.

Promulgated:
THE PEOPLE OF THE PHILIPPINES,
Respondent. January 20, 2006

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CARPIO, J.:

The Case

Before the Court is a petition for review[1] assailing the 23 June 2000 Decision[2] and the 7
November 2001 Resolution[3] of the Court of Appeals in CA-G.R. CR No. 21450. The Court of
Appeals affirmed the 30 September 1997 Decision[4] of the Regional Trial Court of Manila,
Branch 50 (trial court) in Criminal Cases Nos. 94-135055-56. The trial court found Coverdale
Abarquez y Evangelista (Abarquez) guilty beyond reasonable doubt as an accomplice in the
crime of homicide in Criminal Case No. 94-135055.

The Charge

The prosecution charged Abarquez with the crimes of homicide and attempted homicide
in two Informations,[5] as follows:

Criminal Case No. 94-135055

The undersigned accuses COVERDALE ABARQUEZ Y EVANGELISTA of the
crime of HOMICIDE, committed as follows:

That on or about November 21, 1993, in the City of Manila, Philippines,

the said accused conspiring and confederating with one ALBERTO ALMOJUELA
Y VILLANUEVA, who has already been charged for the same offense before the
Regional Trial Court of Manila, under Crim. Case No. 93-129891 and mutually
helping each other, did then and there willfully, unlawfully and feloniously with

intent to kill, attack, assault and use personal violence upon one RICARDO
QUEJONG Y BELLO, by then and there stabbing him twice with a bladed
weapon and hitting him with a gun at the back, thereby inflicting upon the latter
mortal wounds which were the direct and immediate cause of his death
thereafter.

CONTRARY TO LAW.[6]

Criminal Case No. 94-135056

The undersigned accuses COVERDALE ABARQUEZ Y EVANGELISTA of the

crime of ATTEMPTED HOMICIDE, committed as follows:

That on or about November 21, 1993, in the City of Manila, Philippines, the said
accused conspiring and confederating with one ALBERTO ALMOJUELA Y
VILLANUEVA, who has already been charged for the same offense before the
Regional Trial Court of Manila under Crim. Case No. 93-129892 and mutually
helping each other, with intent to kill, did then and there wilfully, unlawfully and
feloniously commence the commission of the crime of homicide directly by overt
acts, to wit: by then and there holding one JOSE BUENJIJO PAZ Y UMALI and
stabbing him with a bladed weapon, hitting him on the left arm, but the said
accused did not perform all the acts of execution which should have produced
the crime of homicide as a consequence, by reason of causes other than his own
spontaneous desistance, that is, the injury inflicted upon said JOSE BUENJIJO
PAZ Y UMALI is only slight and not fatal.

CONTRARY TO LAW.[7]

Abarquez entered a plea of not guilty to both charges. The cases were tried jointly.

The Version of the Prosecution

On 21 November 1993 at 2:00 p.m., Jose Buenjijo Paz [8] (Paz), Ricardo Quejong (Quejong) and
their friends were in the house of one Boyet at 3342 San Jose St., Sta. Mesa, Manila. They
were drinking liquor in celebration of the birthday of Boyets son. About 7:45 p.m., Paz and
Quejong decided to go home. Boyet Tong, Abarquezs son Bardie and Sonito Masula (Masula)
joined Paz and Quejong. They proceeded towards the exit of San Jose St.

Meanwhile, about six or seven meters away from Boyets house, Alberto Almojuela also
known as Bitoy (Almojuela), a certain Ising and Abarquez also known as Dale, were likewise
drinking liquor in front of Almojuelas house. As the group of Paz was passing towards the main
road, Almojuela and his companions blocked their path.

Almojuela asked Paz, Are you brave? Paz replied, Why? Almojuela got angry and
attacked Paz with a knife. Paz parried the attack with his left arm but sustained an injury.
Abarquez held Paz on both shoulders while Bardie pacified Almojuela. Paz asked Abarquez,
What is our atraso, we were going home, why did you block our way? Abarquez
answered, Masyado kang matapang. Tumigil ka na, tumigil ka na.

Almojuela then confronted Quejong and they had an altercation, followed by a scuffle. Paz tried
to get away from Abarquez who continued restraining him. Upon seeing Almojuela and Quejong
fall on the ground, Paz struggled to free himself from Abarquez. Paz approached Quejong and
found him already bloodied. It turned out the Almojuela stabbed Quejong with a knife. Paz tried
to pull up Quejong but failed. Paz left Quejong and ran instead towards the exit of San Jose St.
to ask for help. While Paz was running away, he heard Abarquez shout, You left your companion
already wounded!

When Paz and his companions returned, they found Quejong still on the ground.
Almojuela and Abarquez were still in the area. Paz and his companions brought Quejong to the
UST Hospital. They next proceeded to Police Precinct No. 4 to report the incident. However,
there was nobody in the precinct. With Kagawad Villanio Usorio, Paz went to the WPD General
Headquarters to report the incident. At the WPD General Headquarters, they learned that
Quejong died at the UST Hospital. Paz then had his injury treated by Dr. Vic Managuelod at
Jose Reyes Memorial Hospital. The medico-legal certificate showed that Paz sustained a 3-cm.
lacerated wound on his left forearm.

About 9:15 p.m., while SPO1 Danilo Vidad (SPO1 Vidad) was at the WPD Homicide Division,
his station received a call from the UST Hospital informing them of the death of Quejong. SPO1
Vidad and PO3 Ed Co went to the UST Hospital morgue and investigated the incident. They
learned that Almojuela, assisted by Abarquez, stabbed Quejong. Upon the execution of sworn

statements by Paz and Masula, SPO1 Vidad booked Almojuela and Abarquez for homicide and
frustrated homicide and prepared the referral letter to the inquest prosecutor.

Abarquez voluntarily appeared at the police station. Almojuela voluntarily surrendered to one
SPO4 Soriano at Police Station No. 10 and was turned over to the WPD Homicide Division.

Dr. Antonio Rebosa[9] (Dr. Rebosa), a medico-legal consultant at UST Hospital, conducted the
post-mortem examination and autopsy on Quejong. Dr. Rebosa reported that Quejong
sustained two stab wounds and suffered from massive hemorrhage due to penetrating stab
wounds to the heart and left lung. According to Dr. Rebosa, a sharp instrument probably caused
the wound. Dr. Rebosa also reported that Quejong sustained abrasions and contusions on the
right upper body, the wrist and on the lower extremities.

The Version of the Defense

Abarquez countered that on 21 November 1993, he was in his residence at 3363 San Jose St.,
Sta. Mesa, Manila. About 7:30 p.m., Almojuelas wife informed him that the group of Paz was
challenging Almojuela to a fistfight. Abarquez, being a barangay kagawad, proceeded to
Almojuelas house. Almojuelas house was about twenty meters away from Abarquezs house.
When he arrived at Almojuelas house, Abarquez saw Almojuela on the ground being strangled
by Quejong. Paz was holding Almojuelas waist and boxing him at the stomach. Masula was

near Almojuelas head holding a piece of stone as if waiting for a chance to hit him. Abarquez
shouted at the group to stop. The group did not heed Abarquez, forcing him to fire a warning
shot into the air. Still, the group did not heed Abarquez who then fired a second warning shot.
Paz, Quejong, and Masula scampered away.

Almojuela told Abarquez that he was merely trying to stop the group of Paz from
smoking marijuana. Almojuela then went inside his house while Abarquez went home. On his
way home, Abarquez met the Chief Tanod of the barangay and two kagawads. Kagawad Rudy
Lego (Lego) advised him to report the incident to the police. They all proceeded to Precinct No.
4 where Lego reported the incident to the desk officer. The desk officer told them that a person
had been stabbed. When Abarquez reached their house, he saw policemen and media men
with their barangay chairman. He informed them that he had just reported the incident. Upon the
request of SPO1 Vidad, Abarquez then went to the police station to shed light on the incident.

Almojuela testified that he was inside his house when his daughter informed him that there was
marijuana smoke coming to their window. He went outside to look for the source of the smoke
and saw Quejong, Paz, and Masula smoking marijuana. Almojuela asked the group to move
away as there were children inside the house. He was on his way back to the house when
Quejong tried to strangle him. Later, Almojuela heard a gunshot. He also heard Abarquez
shouting, Tumigil na kayo. Quejong, Masula, and Paz ran away.

Winfred Evangelista[10] (Evangelista) testified that he was resting in front of his house when he
heard a commotion. He noticed that Paz and Quejong were quarreling. Evangelista saw Paz
kicking Almojuela. Abarquez arrived to break up the fight but he was told not to interfere.
Abarquez was forced to fire a warning shot and the persons involved in the commotion ran
away.

The Ruling of the Trial Court

In its Decision[11] dated 30 September 1997, the trial court found Abarquez guilty as an
accomplice in the crime of homicide. The trial court held that the prosecution failed to prove that
Abarquez was a co-conspirator of Almojuela in the killing of Quejong. Hence, Abarquez could
not be convicted as a principal in the crime of homicide. However, the trial court ruled that
Abarquez, in holding and restraining Paz, prevented the latter from helping Quejong and
allowed Almojuela to pursue his criminal act without resistance.

The dispositive portion of the trial courts Decision reads:

WHEREFORE, in Criminal Case No. 94-135055, this Court finds the

accused, Coverdale Abarquez, guilty beyond reasonable doubt of the crime of
homicide only as accomplice and hereby sentences him to suffer an
indeterminate penalty ranging from six (6) years of prision correccional to ten
(10) years of prision mayor. In Criminal Case No. 94-135056, the accused is
hereby acquitted.

With costs de oficio.

SO ORDERED.[12]

Abarquez appealed the trial courts Decision before the Court of Appeals.

In its Decision[13] of 23 June 2000, the Court of Appeals affirmed the trial courts Decision. The
Court of Appeals sustained the trial court in giving more credence to the testimony of Paz. The
Court of Appeals held that the prosecution was able to establish that Abarquez aided Almojuela
in fatally stabbing Quejong. The Court of Appeals rejected Abarquezs allegation that he was
merely at the crime scene to pacify the quarreling parties.

In its 7 November 2001 Resolution,[14] the Court of Appeals denied Abarquezs motion for
reconsideration.

Hence, the petition before this Court.

The Issues

The issues[15] Abarquez raises before the Court may be summarized as follows:

1. Whether the prosecution was able to establish the guilt of the accused beyond
reasonable doubt;

2. Whether the trial court and the Court of Appeals erred in giving more credence
to the testimony of the prosecution witnesses.

Abarquez alleges that the prosecutions evidence does not satisfy the test of moral certainty and
is not sufficient to support his conviction as an accomplice. He further alleges that there was a
misapprehension of facts and that the trial court and the Court of Appeals reached their
conclusion based entirely on speculation, surmises and conjectures. Abarquez also assails the
credibility of the witnesses against him.

The Ruling of This Court

The petition is meritorious.

The rule is that the trial court is in the best position to determine the value and weight of the
testimony of a witness. The exception is if the trial court failed to consider certain facts of
substance and value, which if considered, might affect the result of the case. [16] This case is an
exception to the rule.

Concurrence in Criminal Design

Article 18 of the Revised Penal Code defines accomplices as those persons who, not being
included in Article 17, cooperate in the execution of the offense by previous or simultaneous
acts.[17]

Two elements must concur before a person becomes liable as an accomplice: (1) community of
design, which means that the accomplice knows of, and concurs with, the criminal design of the
principal by direct participation; and (2) the performance by the accomplice of previous or
simultaneous acts that are not indispensable to the commission of the crime. [18] Mere
commission of an act, which aids the perpetrator, is not enough.[19] Thus:

The cooperation that the law punishes is the assistance knowingly rendered,
which cannot exist without the previous cognizance of the criminal act intended
to be executed. It is therefore required in order to be liable as an accomplice, that

the accused must unite with the criminal design of the principal by direct
participation.[20]

Indeed, in one case, the Court ruled that the mere presence of the accused at the crime scene
cannot be interpreted to mean that he committed the crime charged.[21]

Here, in convicting Abarquez, the trial court and the Court of Appeals relied mainly on the
testimony of Paz. Paz testified that he was held by Abarquez on the shoulders, thus preventing
him from helping Quejong who was grappling with Almojuela. Paz testified:

q.

a.

And what happened in the exchange of words or altercations

between Bitoy and Ricardo Quejong?
They grappled with each other, sir.

q.

When Bitoy and Ricardo grappled with each other, what did you do,
if any?

a.

I was intending to help Ricky but I was held back by Dale, sir.

q.

And how this Dale hold you?

a.

He held my two shoulders, sir.

PROSECUTOR F. G. SUPNET:

I would like to make it of record demonstrated being held by the accused

holding both shoulders, your Honor.
q.

a.

Now, when this Dale Abarquez held both on your shoulders, what
happened next, if any?
He got angry scolding us. While scolding me the two
who were grappling each other walking away, sir. (sic)

q.

Now, you said Bitoy and Ricky were moving, what happened in the
course of grappling, if any?

You testified that Ricky and Bitoy were grappling each other, what
happened in the course of grappling? (sic)
a.

They fell to the ground, sir.

q.

After that what happened next, if any?

a.

When I saw them fall I struggle and I was able to release from the
hold of Dale and I approach the two. I saw Ricky blooded so I was trying
to pull him, sir. (sic)

q.

You said you saw Ricky blooded, why was he blooded? (sic)

a.

He was stabbed by Bitoy, sir.

q.

And did you see what instrument did Bitoy used in stabbing Ricky or
Ricardo? (sic)

a.

It was a knife, sir. (Witness indicating a length about 6 inches

including the handle).

q.

Now, you said also that while the two were grappling while you were
trying to free yourself from the hold Dale Abarquez, Pinagalitan kayo, in
what way or manner did Dale Abarquez reprimanded you? (sic)

a. You Jose is too brave, sir. (sic)[22]

xxx xxx xxx

q.

You said you were first attacked by Bitoy, is that correct?

a.

Yes, sir.

q.

a.

After Bitoy pacified Bardy Abarquez, he went after Ricky Quejong, is

it not?[23]
They were just arguing, sir.

[q.] And it was during that time when you were held in both shoulders by the
accused [C]overdale Abarquez?
a.

Yes, sir.

q.

and that Coverdale Abarquez was infront of you, is it not?

a.

Yes, sir on my side.

q.

a.

q.

And he was holding your shoulder to pacify you and Bitoy from
further quarrelling you, is it not?
That is not the way of pacifying, sir.

How can you demonstrate how you were held on the shoulder by
Abarquez?

ATTY. GASCON:
Make I make it of record your Honor that the interpreter act as the witness
while the witness act as the accused demonstrating holding both hands of
interpreter preventing the witness and saying Joey tumigil ka na, joey
tumigil ka na.

COURT:
q.

How many times?

a.

Twice, Your Honor.

ATTY. GASCON:
The accused told you Joey tumigil ka na, Joey tumigil ka na because you
were trying to attack Bitoy, is it not?

a.

How can I be charged, he was the one holding the knife, sir. (sic)

q. So what was the reason why the accused restrained you and told you Joey
tumigal ka na, Joey tumigil ka na. What would be the reason?

a.

While I was just talking to Bitoy, when he told me to stop.

COURT:
Does the Court get from you that you are trying to explain to Bitoy when
the accused tried to hold you and prevent you?

a.
q.

a.

Yes, sir.
That is why the reason you concluded that the accused is not
pacifying you but to stop you from helping the victim?

Yes, sir.

xxx xxx xxx

q.

The only word that the accused [C]overdale Abarquez uttered was
Joey, tumigil ka na, Joey tumigil ka na, is it not?

a. He uttered that you are MATAPANG, Joey tumigil ka na, Joey tumigil ka na.[24]

Pazs testimony does not show that Abarquez concurred with Almojuelas criminal
design. Tumigil literally means stop. Clearly, Abarquez was trying to stop Paz from joining the
fray, not from helping Quejong. Paz claims that he was only trying to talk to Almojuela. However,
Paz could not have been merely talking to Almojuela, as he tried to portray, because Almojuela
was already grappling with Quejong at that time. Paz interpreted Abarquezs action as an
attempt to prevent him from helping Quejong. His interpretation was adopted by the trial court
and sustained by the Court of Appeals. Yet, in his testimony, Paz admitted that while restraining
him, Abarquez was scolding or reprimanding him and telling him to stop. It was not shown that
Abarquez was stopping Paz from helping Almojuela. It is more likely that Abarquez was trying to
stop Paz from joining the fight. Abarquezs act of trying to stop Paz does not translate to
assistance to Almojuela.

In People v. Fabros, [25] the Court explained:

To be deemed an accomplice, one needs to have had both knowledge of

and participation in the criminal act. In other words, the principal and the
accomplice must have acted in conjunction and directed their efforts to the same
end. Thus, it is essential that both were united in their criminal design.

xxx. The mere fact that the (accused) had prior knowledge of the
(principals) criminal design did not automatically make him an accomplice. This
circumstance, by itself, did not show his concurrence in the principals criminal
intent.

Paz stated that Abarquez did not do anything to stop Almojuela. However, Paz testified
that Abarquezs son Bardie, who was one of Pazs companions, was the one trying to pacify
Almojuela. The trial court in its factual findings confirmed this when it stated that while Abarquez
was holding Paz, his son Bardie was pacifying Almojuela.[26]

The prosecution argues that Abarquez was remiss in his duties as a barangay kagawad
in not extending assistance to the then wounded Quejong. This, however, does not necessarily
show concurrence in Almojuelas criminal act. When Paz ran away, Abarquez shouted at him
that he left his wounded companion. Apparently, Abarquez was not aware of the extent of
Quejongs injury and he expected Paz to look after his own companion.

When there is doubt on the guilt of an accused, the doubt should be resolved in his
favor. Thus:

Every person accused has the right to be presumed innocent until the
contrary is proven beyond reasonable doubt. The presumption of innocence
stands as a fundamental principle of both constitutional and criminal law. Thus,
the prosecution has the burden of proving every single fact establishing guilt.
Every vestige of doubt having a rational basis must be removed. The defense of
the accused, even if weak, is no reason to convict. Within this framework, the
prosecution must prove its case beyond any hint of uncertainty. The defense
need not even speak at all. The presumption of innocence is more than sufficient.
[27]

We apply in this case the equipoise rule. Where the evidence on an issue of fact is in
issue or there is doubt on which side the evidence preponderates, the party having the burden
of proof loses.[28] Hence:

xxx The equipoise rule finds application if, as in this case, the inculpatory facts
and circumstances are capable of two or more explanations, one of which is
consistent with the innocence of the accused and the other consistent with his
guilt, for then the evidence does not fulfill the test of moral certainty, and does not
suffice to produce a conviction. Briefly stated, the needed quantum of proof to
convict the accused of the crime charged is found lacking.[29]

WHEREFORE, we GRANT the petition. We SET ASIDE the 23 June 2000 Decision and
7 November 2001 Resolution of the Court of Appeals in CA-G.R. CR No. 21450, which affirmed
the 30 September 1997 Decision of the Regional Trial Court of Manila, Branch 50 in Criminal
Cases Nos. 94-135055-56. We ACQUIT Coverdale Abarquez y Evangelista as an accomplice in
the crime of homicide in Criminal Case No. 94-135055. No pronouncement as to costs.

SO ORDERED.

FIRST DIVISION
HEIRS

OF

VICENTE

REYES,

represented by DOMINADOR REYES;

HEIRS
OF
APOLONIA
REYES
SAMSON, represented by MILAGROS
FRANCISCO;
MONICO
REYES
PALMARIO;
FELICISIMA
REYES
CHING-CUANCO;
JULIA
REYES;
LEONORA
REYES;
EDILBERTA
REYES;
MAXIMA
REYES;
BIENVENIDO REYES; HEIRS OF
MANUEL
REYES
SAMSON,
represented by ZENADIA FRILLES;
MARIO SAMSON; GLISERIO SAMSON;
CRISPIN
SAMSON;
NUMERIANO
SAMSON;
FERMENIA
SAMSON,
HEIRS
OF
MARTIN
SAMSON,
represented by MA. CLARA SAMSON;
ELPIDIO
SAMSON;
RICARDO
SAMSON;
VICTORINO
SAMSON;
EMILIANO SAMSON, JR.; CARMELITA
SAMSON VERGARA; SHEILA ANN
SAMSON; FRANCISCO SAMSON AND
MAGNO SARREAL, represented by the
substituted heirs, AIDA SARREAL and
the HEIRS OF CELERINA SARREAL
KAMANTIGUE, represented by LAURA
S. KAMANTIGUE,
Petitioners,
- versus -

G.R. No. 157959

Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA, and
GARCIA, JJ.
Promulgated:
March 28, 2007

THE
HONORABLE
COURT
OF
APPEALS, ANATALIA REYES AND
GLORIA REYES-PAULINO,
Respondents.
X----------------------------------------------------------------------------------------X
DECISION
AZCUNA, J.:

This is a petition for review on certiorari[1] assailing the Decision[2] and Resolution[3] of
the Court of Appeals (CA) dated February 10, 2003 and April 28, 2003, respectively, in
CA-G.R. CV No. 71807.

The case stemmed from the action for partition and accounting filed by the children of
the siblings of the late Eustaquia Reyes [4] against Magno Sarreal, Anatalia Reyes and
Gloria Reyes-Paulino, Eustaquias husband and nieces, respectively, in relation to a
parcel of land situated in Balintawak, Quezon City, with an area of Seven Thousand
Four Hundred Eighty-Four (7,484) square meters (the property).
The property was originally registered in the name of Eustaquia under Transfer
Certificate of Title (TCT) No. 26031 issued by the Registry of Deeds of Quezon City and
was inherited by her prior to her marriage to Magno Sarreal.
On June 5, 1963, Eustaquia leased a portion of the property to ACME Abrasive
Manufacturing Corporation (ACME) for a period of twenty (20) years commencing
onJune 1, 1963 until June 1, 1983.[5] The lease contract provided that ACME as the
lessee shall have the right to build, construct and place additional improvements within
the property during the term of the lease subject to the condition, among others, that
upon the expiration of such term, the ownership of all the improvements found within the
leased property would automatically be transferred to the lessor without need for
reimbursement.[6] The contract was thumbmarked by Eustaquia as the lessor, with
Magno Sarreal likewise affixing his signature to the instrument to indicate his marital
consent to the transaction.[7]
On January 24, 1979, Eustaquia purportedly sold the property to private
respondents Anatalia Reyes and Gloria Reyes-Paulino in a notarized document
entitled Patuluyang Pagbibili ng Lupa (Deed of Absolute Sale). [8] In the second
paragraph of the deed, Eustaquia expressly stated that the property was paraphernal or
exclusive in character and did not belong to the conjugal partnership because it formed
part of her inheritance. Accordingly, it was only her signature and thumbmark which
appeared on the deed. Anatalia and Gloria subsequently divided the property between
themselves and registered their respective shares under their own names. [9]

Eustaquia died of natural causes on May 7, 1987.[10]

On May 17, 1993, the children of the siblings of Eustaquia who predeceased her
filed a complaint with the Regional Trial Court (RTC) of Quezon City for partition and
accounting with receivership against Magno Sarreal and private respondents herein,
Anatalia Reyes and Gloria Reyes-Paulino. They allegedly just discovered that the
property was clandestinely, fraudulently and unlawfully divided between private
respondents who caused its registration in their names under TCT Nos. 272976 and
272977 by means of simulated or fictitious and unlawful conveyances. They contended
that, not having waived or repudiated their lawful shares and participation in the
property, they are co-owners of the resulting subdivision lots with private respondents,
the same being held in trust by the latter for the co-ownership. Similarly, the rents from
the market stalls on the property belong not only to private respondents but also to them
and private respondents should be made to account for all rents received from the date
of Eustaquias death. They further prayed that the property be placed under receivership
pending the resolution of the case.[11]
Private respondents filed a joint answer [12] to the complaint claiming, among
others, that 1) the complaint does not state any cause of action; 2) they are the owners
in fee simple of the property under TCT Nos. 272977 and 272976; 3) complainants are
not compulsory heirs of Eustaquia; and 4) the title to the property has been transferred
in the names of private respondents pursuant to a valid sale long before the death of
Eustaquia.
A separate answer[13] was filed on behalf of Magno Sarreal by his purported
guardian ad litem and natural daughter, Aida Sarreal, which admitted virtually all the
allegations of the complaint except the portion which stated that the property belonged
exclusively to Eustaquia. It alleged that the property, while originally paraphernal,
became conjugal in character because of the improvements introduced therein from the
income of the spouses and/or from the income or fruits of their separate properties.

However, at that time, it appeared that the status of Aida Sarreal as guardian ad
litem was still in issue in two pending consolidated civil cases, namely, Civil Case No.
Q-51482[14] and Special Proceeding No. 50893. [15] The appointed guardian ad litem of
Magno in those cases, the University of the Philippines Office of Legal Aid, filed a
motion to be appointed as guardian ad litem of Magno, which the RTC granted in an
order[16] dated August 26, 1994. Thereafter, the Office of Legal Aid filed, on his behalf,
the answer[17] dated September 5, 1994 which now denied for lack of knowledge the
personal circumstances of the complainants, their relationship to their respective
progenitors and to Eustaquia, and the relationship of complainants and private
respondents to each other and of private respondents to Eustaquia. The paraphernal
character of the property was likewise denied, with Magno now claiming that the
property was part of the conjugal partnership from the very beginning.
On December 12, 1994, Magno died and was substituted as defendant by Celerina
Sarreal Kamantigue, his sister, and Aida Sarreal. [18] During pre-trial, the parties agreed
that the sole issue to be resolved in the case was whether the sale of the property to
private respondents was simulated or fictitious.
On September 11, 1996, petitioners separate applications for receivership were
denied.[19] Thereafter, trial ensued. Petitioners presented as witnesses Celerina Sarreal
Kamantigue, Monico Reyes Palmario and Aida Sarreal. The sole witness for the
defense, on the other hand, was private respondent Gloria Reyes-Paulino.
After the parties presented their respective evidence, another motion for the
appointment of a receiver was filed by the children of Eustaquias siblings but before a
ruling could be made thereon, the decision [20] dated September 7, 2001 was rendered by
the RTC on September 12, 2001 in favor of petitioners which 1) declared the Deed of
Absolute Sale executed between Eustaquia and private respondents null and void; 2)
ordered the Register of Deeds of Quezon City to cancel TCT Nos. 272976 and 272977;
3) allowed the partition of the property among the legal heirs of Eustaquia and the legal
heirs of her deceased husband, Magno; 4) appointed the Branch Clerk of Court as

commissioner for the purpose of partitioning the property and rendering an account of all
income received from the date of Eustaquias death; 5) pending partition, appointed the
Clerk of Court as receiver of the property; and 6) ordered the defendants to pay
attorneys fees, litigation expenses and costs of suit.
Not satisfied, private respondents appealed the decision to the CA. On February
10, 2003, the CA reversed the decision of the RTC and rendered the assailed Decision,
[21]

the dispositive portion of which reads:

WHEREFORE, the appealed decision is REVERSED and SET
ASIDE, and another is entered:
a)
Dismissing the complaint;
b)
Revoking the appointment of a receiver over the
property in suit;
c)
Discharging forthwith the appointed receiver, Atty.
Mercedes Gatmaytan, the Clerk of Court of the Regional Trial
Court of Quezon City; and
d)
Ordering the discharged receiver to restore forthwith
the possession of the subject property to the appellants
Anatalia Reyes and Gloria Reyes-Paulino and render a full
accounting and settlement of her receivership to the latter.

The CA pointed out that during pre-trial, the parties agreed that the sole issue that
would limit or control the course of the trial was whether the conveyance of the property
to private respondents was simulated or fictitious. The CA ruled that the burden of proof,
which rested upon complainants in this instance, was not met, after finding that the
testimonies of the complainants two witnesses [22] to the effect that private respondents
had no means or source of income that would enable them to buy the property and that
they

merely

lived

with

the

spouses

Eustaquia

and

Magno

Sarreal during their lifetime were mere generalities and fell short of the clear, convincing
and more than merely preponderant evidence necessary to overcome the notarized
deed of sale.[23] The CA, moreover, found the testimony of private respondent Gloria
Reyes-Paulino more convincing in that she was able to establish she was earning an
income and that she lived with her husband independently of the spouses Eustaquia
and Magno.

The CA held that the RTC showed undue bias in favor of complainants by
resolving the case on issues not agreed upon during the pre-trial, particularly with
regard to the true nature of the property and whether the same was paraphernal or
conjugal. It should be kept in mind that because the property was deemed conjugal, the
RTC held that the Deed of Absolute Sale which did not bear Magnos signature was
void.
Thereafter, separate motions for reconsideration [24] were filed by the children of
Eustaquias siblings and the heirs of Magno Sarreal. Collaborating counsel for private
respondents, on the other hand, filed a notice of entry of appearance with omnibus
motion.[25] The omnibus motion, attached as Annex A to the notice, prayed for 1) the
revocation of the appointment of the receiver over the property; 2) the discharge of the
appointed receiver; and 3) an order for the discharged receiver to restore possession of
the property to private respondents.
After petitioners interposed their comment/opposition to the omnibus motion,
another collaborating counsel for private respondents filed a notice of entry of
appearance with application for damages against receivers bond [26] on March 25,
2003 praying that the receivers bond in the amount of P1,000,000.00 be declared liable
for damages sustained by private respondents. On April 2, 2003, private respondents
also filed, with leave of court, a consolidated comment to the motions for
reconsideration filed by petitioners.
In the assailed Resolution dated April 28, 2003, private respondents omnibus
motion for the immediate execution of the directives regarding the receivership and
accounting aspects of the CA decision was granted. Private respondents application for
damages against the receivers bond was, on the other hand, referred to the RTC for
hearing and disposition. Finally, petitioners motions for reconsideration were denied for
lack of merit.

This petition was thereupon filed on May 9, 2003. This Court issued a status
quo order on May 15, 2003, to stop the immediate execution of the CA decision and
resolution.
Petitioners anchor their petition on the following grounds:
1.

Respondent Court of Appeals committed serious deviations

from the law and settled jurisprudence in holding that the land in
dispute did not become conjugal property of the late spouses Magno
Sarreal and Eustaquia Reyes and in reversing the trial court on the
issue of nullity of the deed of sale.

2.

Respondent Court likewise erred most grievously in

overturning the trial courts factual findings on the basis of a uniquely
one-sided or lopsided treatment of the facts and in total disregard of
the tenet in law that issues of credibility should be left for the trial
court to resolve because unlike the appellate court, it had the
opportunity to observe the demeanor of witnesses at close range.

3.

Respondent Court acted in grave abuse of discretion

tantamount to excess of jurisdiction when it ordered the trial court to
issue forthwith a writ of execution of the directives in its decision
despite their lack of finality.

4.

The Resolution turns a blind eye upon the ruling of the

Honorable Supreme Court in Heirs of the Late Justice Jose B.L.
Reyes vs. Court of Appeals (338 SCRA 282), and has the
deleterious effect of opening the door to a dissipation of the fruits of
the property in dispute to the grave detriment of the petitioners
should the assailed Decision be reversed by the Honorable Court.

The crux of the present controversy involves the resolution of validity or invalidity
of the conveyance of the property to private respondents.
The trial court concluded on the basis of the evidence presented that the Deed of
Absolute Sale was void for not embodying the consent of Eustaquias husband. The
conclusion was drawn upon the finding of the RTC that the property subject of the deed
was conjugal in character due to the improvements constructed thereon at the expense
of the conjugal partnership.

To reiterate, in reversing the decision of the trial court, the CA pointed out that the
RTC had gone beyond the scope of the lone issue agreed upon by the parties during
pre-trial, that is, whether the sale of the property to private respondents was simulated
or fictitious.
The Court is mindful of the rule that the determination of issues at a pre-trial
conference bars the consideration of other questions on appeal. A pre-trial is meant to
serve as a device to clarify and narrow down the basic issues between the parties, to
ascertain the facts relative to those issues and to enable the parties to obtain the fullest
possible knowledge of the issues and facts before civil trials and thus prevent trials from
being carried on in the dark. Thus, to obviate the element of surprise, parties are
expected to disclose at a pre-trial conference all issues of law and fact which they
intend to raise at the trial, except such as may involve privileged or impeaching matters.
[27]

The rule, however, is not to be applied with rigidity and admits of certain exceptions.

[28]

There is merit in petitioners claim that the limitation upon the issue embodied in
the pre-trial order did not control the course of the trial. The issue on the nature of the
property was embodied in the pleadings filed by the parties subsequent to the
complaint and was actively litigated by them without any objection on the part of
private respondents. In view thereof, the latter are deemed to have given their implied
consent for the RTC to try this issue. It is worthy to note that a careful perusal of the
RTC decision would reveal that the trial court found it unnecessary to make a
categorical finding as to whether the deed was simulated or fictitious, the focal point
being the character of the property at the time of the transfer to private respondents.
While it is true that the RTC cited the evidence introduced by petitioners to establish
that the sale was simulated or fictitious, it did not make a clear and definitive ruling on
this matter, and instead stated as follows:
While these circumstances may be considered in the determination
of the alleged fraud in the transfer of property by way of Deed of Sale
allegedly executed by Eustaquia Reyes in favor of defendants Gloria

Reyes-Paulino and Anatalia Reyes, the Court is nevertheless confronted

with a significant factual element which, by and in itself alone and
independent of circumstances indicative of fraud, nullifies the said Deed of
Sale. There is a clear absence of Magno Sarreals signature in the Deed
of Sale of the subject property in favor of Gloria Reyes-Paulino and
Anatalia Reyes. [29]
Contrary to the assumption made by the CA, the deed was clearly not nullified on
the basis that it was simulated or fictitious. Rather, the ruling was that the absence of
Magnos conformity rendered the deed of absolute sale fatally defective. In this regard,
the evidence relied upon by the RTC to support its conclusion that the property had
become conjugal and therefore required Magnos consent was principally the testimony
of Monico Reyes Palmario as well as the lease agreement executed with ACME, to wit:
After a careful examination of the testimonial and documentary
evidence adduced by both parties, it appears to the Court that:
xxx
6. The subject property was acquired by Eustaquia Reyes
prior to her marriage to Magno Sarreal. During the
lifetime of the marriage, improvements were made
thereon as declared in page 4 Paragraph XI (Exhibit A7) of the Lease Agreement showing that all
improvements in the said parcel of land as of June 5,
1983, at the expiration of the lease, shall belong to the
lessors. Witness plaintiff Monico Reyes Palmario
likewise testified that he had been engaged by the
spouses as a carpenter and mason to make
improvements on the property. He made repairs on
the buildings constructed on the property. He
further testified that there were at least ten (10)
houses on the said property and a building
housing a knitting company. (TSN of October 2,
1997, p. 10)
xxx
As in the Embrado Case, the sale of the subject property to defendants
Gloria Reyes-Paulino and Anatalia Reyes was void because Magno
Sarreal did not consent to the sale, which consent was necessary because
the property is conjugal, hence the consent of Magno Sarreal as spouse is
necessary. While it is true that the parcel of land covered by TCT
26031 was acquired by Eustaquia Reyes prior to her marriage to

defendant Sarreal, it was established that improvements were made

consisting of houses, buildings for rent. Likewise, all improvements
introduced thereon by Acme-Abrasive Manufacturing Corporation upon the
expiration of the lease on June 5, 1983 became conjugal properties of
Spouses Eustaquia Reyes Sarreal and Magno Sarreal. There is no
substantial evidence presented as to the source of funds used in the
improvements but it was testified upon that the same were made during
the subsistence of the marriage hence the presumption that the funds used
were conjugal stands. Under Article 158 of the Civil Code, the land
becomes conjugal upon the construction of the building without awaiting
reimbursement before or at the liquidation of the partnership upon the
concurrence of two conditions, to wit: (a) the construction of the building at
the expense of the partnership; and (b) the ownership of the land by one of
the spouses (Embrado vs. Court of Appeals, supra). Thus, in this instant
case, while the land originally belonged to Eustaquia Reyes, the same
became conjugal upon the construction of improvements thereon. [30]

In the present case, the CA considered only the improvements introduced by

ACME during the subsistence of the latters lease to determine whether the property
became conjugal. It ruled in the negative after concluding that these improvements were
not at the partnerships expense, but rather at the expense of the lessee.
It is argued by private respondents that the improvements made by ACME did
not transform the character of the property from being paraphernal into being conjugal.
The

statutory

requirement

set

forth

under

Article 158 of the Civil Code [31] is that the improvements have to be made or
undertaken at the expense of the conjugal partnership. Under the terms of the lease
agreement,

the

lessee

was

allowed

to

build

on

the

property at its

own

expense, subject to the condition that after the termination of the lease, ownership over
the same would inure to the benefit of the lessor. This Court agrees that the expense
incurred by ACME in constructing the buildings on Eustaquias property cannot be
construed as being converted into an expense taken against the civil fruits of the
property by virtue of the lease. Rather, under the terms of the lease contract, it was the
building itself that would inure to the lessor as fruits but only at the end of the lease
period on June 1, 1983. At that time, however, Eustaquia had already sold the land,
on January 24, 1979, to private respondents. Hence, the transfer of the ownership of

the building from the lessee to the lessor could not convert the land into conjugal
property since the land itself no longer belonged to one of the spouses at that time.
This notwithstanding, the RTC did not rely solely upon the improvements
introduced by ACME in ruling that the property became conjugal. As mentioned above, it
likewise gave full faith and credence to the testimony of Monico Reyes Palmario who
testified that there were houses and buildings that were constructed on the property
prior to the purported sale to private respondents.
The CA, however, held otherwise, stating that the testimony of private
respondent Gloria Reyes-Paulino was more credible, thus:
The complaint, however, never mentioned any house or a building
occupied by a knitting company; it confined itself only to a parcel of land
and market stalls. Hence, Palmario must be referring to another land and
his lack of certitude is confirmed by his inability to be sure of the number of
houses that he was talking about.
Indeed, appellant GLORIA, who is renting one of those houses or
apartments from Eustaquia and Magno, and who is thus more
knowledgeable of the place and hence, more reliable, declared that they
are outside the land in controversy.[32]
Applying the well-known test of credibility called the actors rule, it is the witness
whose action is more closely connected to the point at issue that should be given more
credence.[33] In the present case, the RTC gave credence to the testimony of petitioner
Monico Reyes Palmario, who claimed he worked as carpenter on the property in
question, and there were houses and buildings constructed on the property including a
knitting factory. The CA, however, sustained the testimony of private respondent Gloria
Reyes-Paulino, who rented from the spouses Eustaquia and Magno one of the houses
or apartments, and lived therein, and who testified that these houses and buildings were
on a different property. As between these two witnesses, the latter is more reliable since
her act of renting and living in one of the houses or apartments makes her the actor
more closely related to the point at issue, i.e., whether or not the houses were on the

property in question. For while a carpenter would not concern himself with the title of the
property, a lessee would normally look into the title covering the property leased,
including its precise location or boundaries, and in fact Gloria Reyes-Paulino testified
that the lot on which the house she rented was found had a separate title.
Accordingly, the CA aptly held as follows:
For his part, plaintiff-appellee Monico Reyes Palmario testified on
more or less ten (10) houses constructed on the land in dispute by
EUSTAQUIA and Magno, on which he even had the occasion to work on
them as a carpenter, aside from a building occupied by a knitting
company, viz.:
Q And will you also inform this Honorable Court if the spouses
Magno Sarreal and Eustaquia Reyes had left any
property?
A Yes, sir, they have a portion of land and a paupahang
bahay.
Q Do you know where is this parcel of land?
A Balintawak, sir, Samson Road.
[Q] What city?
A Balintawak, sir.
xxxxxxxxx
Q Do you know the area of this parcel of land?
A Seven thousand square meters, sir.
Q Is that parcel of land you identified the same parcel of land
subject matter of this case?
A Yes, sir.
Q Mr. witness, do you have any occasion to work on the
Seven Thousand square meter parcel of land?
A Yes, sir.

Q What was that work that you did, Mr. Witness?

A I worked as a carpenter, sir.
Q You made mention of house. How many houses are there
inside this property?
A More or less ten (10) houses, sir.
Q By the way, who was . . . or who spent for the construction
of those houses, if you know?
A The spouses Eustaquia Reyes and Magno Sarreal, sir.
Q Aside from those houses, do you know if there are other
improvements or other building inside the property?
A Yes, sir, knitting company.
Q Who owns the building that occupy the factory?
A Spouses Eustaquia Reyes and Magno Sarreal, sir.
The complaint, however, never mentioned any house or a building
occupied by a knitting company; it confined itself only to a parcel of land
and market stalls. Hence, Palmario must be referring to another land and
his lack of certitude is confirmed by his inability to be sure of the number
of the houses that he was talking about.
Indeed, appellant GLORIA, who is renting one of those houses or
apartments from EUSTAQUIA and Magno, and who is thus more
knowledgeable of the place and, hence, more reliable declared that they
are outside the land in controversy.
Q Now, let us talk about the parcel of land. How far is this
parcel of land from the place where you were residing
in 1979?
A It is just at the back, sir.
Q Do you mean to tell us that the land of which your
apartment was situated is not part of the parcel of land
with an area of 7,484 square meters?
A No, sir.

Q When you say hindi, the lot on which your apartment

was situated has a separate title of its own?
A Yes, sir. [34]
Q And the title to that apartment was in the name of the
spouses?
A Yes, sir.
Be that as it may, the improvements referred to by the trial court which
purportedly made the property conjugal consisted of houses, buildings for
rent and improvements introduced thereon by lessee Acme-Abrasive
Manufacturing Corporation upon the expiration of the lease on June [1],
1983. It said:
As in the Embrado Case, the sale of the subject property to
defendants Gloria Reyes Paulino and Anatalia Reyes was
void because Magno Sarreal did not consent to the sale,
which consent was necessary because the property is
conjugal hence the consent of Magno Sarreal as spouse is
necessary. While it is true that the parcel of land covered by
TCT 26031 was acquired by Eustaquia Reyes prior to her
marriage to defendant Sarreal, it was established that
improvements were made consisting of houses, buildings for
rent.Likewise, all improvements introduced thereon by lessee
Acme-Abrasive Manufacturing Corporation upon the
expiration of the lease on June [1], 1983 became the conjugal
properties of Spouses Eustaquia Reyes Sarreal and Magno
Sarreal. There is no substantial evidence presented as to the
source of funds used in the improvements but it was testified
upon that the same were made during the subsistence of the
marriage hence the presumption that the funds used were
conjugal stands. Under Article 158 of the Civil Code, the land
becomes conjugal upon the construction of the building
without awaiting reimbursement before or at the liquidation of
the partnership upon the concurrence of two conditions, to
wit: (a) the construction of the building at the expense of the
partnership, and (b) the ownership of the land by one of the
spouses. (Embrado vs. Court of Appeals, supra) Thus, in this
instant case, while the land originally belonged to Eustaquia
Reyes, the same became conjugal upon the construction of
improvements thereon.
The houses or apartments being outside the land in suit, the only
improvements that should be looked into in the case at bench are the

improvements introduced thereon by the lessee Acme-Abrasive

Manufacturing Corporation. In this connection, it is worth reiterating that
paragraph XI of the contract of lease provided:
XI
That this contract of lease shall be for a period of TWENTY
(20) YEARS from June 1st, 1963 and expiring on June
1st 1983; and that upon termination of the period of this
contract, the ownership of all the improvements found within
the leased property, (except machineries of any kind, stocks,
furniture and other personal property found in the building)
shall be automatically transferred to the LESSOR without
reimbursement and without paying the cost and value thereof
to the LESSEE; and that if it is necessary for the LESSEE to
execute and deliver papers, documents and other writings,
whatsoever to effect the transfer of the ownership of all the
said improvements to the LESSOR, the LESSEE shall
execute and deliver the same to the LESSOR.
Two (2) decisive facts are clearly discernible therefrom: first, no conjugal
fund ever went into the construction of the improvements as they were all
done at the expense of the lessee; and second, the improvements shall
devolve to the ownership of the lessor only upon the expiration of the
lease.
The lease expired on June 1, 1983. At that time, the lessor was no longer
EUSTAQUIA but the appellants ANATALIA and GLORIA. This is for the
simple reason that in the interim, or onJanuary 24, 1979, the lessor
EUSTAQUIA sold the land to ANATALIA and GLORIA who thereupon
succeeded EUSTAQUIA as lessor. Necessarily, ANATALIA and GLORIA
became the owners of the land, together with all the improvements
thereon, upon the expiration of the lease on June 1, 1983, being already
the lessors on that date. Logically, too, when EUSTAQUIA sold the
property, it was still paraphernal, as she correctly repeatedly emphasized
in the deed of sale paraphernal or exclusive property ko, at hindi conjugal
naming mag-asawa; ito ay aking minana o isang inheritance
property. Resultantly, when EUSTAQUIA died on May 7, 1987, the
plaintiffs, including the surviving husband, Magno Sarreal, could no longer
inherit the property from her since she was then not anymore the owner
thereof.[35]

Accordingly, since the property sold by Eustaquia to private respondents

on January 24, 1979 was paraphernal, the consent of Magno was not required and the
sale cannot be held invalid on the basis of its absence.
WHEREFORE, the petition is DENIED and the assailed Decision and Resolution
dated February 10, 2003 and April 28, 2003, respectively, rendered by the Court of
Appeals in CA-G.R. CV No. 71807 are hereby AFFIRMED. The status quo order issued
by this Court on May 15, 2003 is LIFTED effective upon the finality of this Decision.
Costs against petitioners.
SO ORDERED.