Prof. V. A.

Avena Evidence
Entries in the Course of Business MANALO V. ROBLES G.R. No. L-8171; August 16, 1956; Montemayor (Chrislao) FACTS: -On August 9, 1947, a taxicab owned and operated by defendant Robles Transportation Company, Inc. (the Company) and driven by Hernandez its driver, collided with a passenger truck. In the course of and a result of the accident, the taxicab ran over Armando Manalo, an eleven year old, causing him physical injuries which resulted in his death several days later. -Hernandez was prosecuted for homicide through reckless imprudence and after trial was found guilty. He served out his sentence but failed to pay the indemnity. 2 writs of execution were issued against him to satisfy the amount but both writs were returned unsatisfied by the sheriff. -On February 17, 1953, plaintiffs Emilio Manalo and his wife Clara Salvador, father and mother respectively of Armando filed the present action against the Company to enforce its subsidiary liability, pursuant to Articles 102 and 103 of the Revised Penal Code. -It also filed a motion to dismiss the complaint unless and until the convicted driver Hernandez was included as a party defendant, the Company considering him an indispensable party. The TC and CA both correctly ruled that Hernandez was not an indispensable party defendant. The Company is now before SC. -To prove their case against the defendant Company, the plaintiffs introduced a copy of the decision in the criminal case convicting Hernandez of homicide through reckless imprudence, the writs of execution to enforce the civil liability, and the returns of the sheriff showing that the two writs of execution were not satisfied because of the insolvency of Hernandez, the sheriff being unable to locate any property in his name. Over the objections of the Company, the trial court admitted this evidence and based its decision in the present case on the same. -The Company contends that this kind of evidence is inadmissible. The Company also claims that in admitting as evidence the sheriff's return of the writs of execution to prove the insolvency of Hernandez, without requiring said opportunity to cross-examine said sheriff. ISSUE: WON the Company is correct. HELD: NO. The Company is mistaken. A sheriff's return is an official statement made by a public official in the performance of a duty specially enjoined by the law and forming part of official records, and is prima facie evidence of the facts stated therein. (Rule 39, section 11 and Rule 123, section 35, Rules of Court.) The sheriff's making the return need not testify in court as to the facts stated in his entry. In the case of Antillon vs. Barcelon, 37 Phil., 151 citing Wigmore on Evidence, this court said: To the foregoing rules with reference to the method of proving private documents an exception is made with reference to the method of proving public documents executed before and certified to, under the land of seal of certain public officials. The courts and the legislature have recognized the valid reason for such an exception. The litigation is unlimited in which testimony by officials is daily needed, the occasion in which the officials would be summoned from his ordinary duties to declare as a witness are numberless. The public officers are few in whose daily work something is not done in which testimony is not needed from official statements, host of official would be found devoting the greater part of their time to attending as witness in court or delivering their depositions before an officer. The work of Administration of government and the interest of the public having business with officials would alike suffer in consequence. And this Court added: The law reposes a particular confidence in public officers that it presumes they will discharge their several trust with accuracy and fidelity; and therefore, whatever acts they do in discharge of their public duty may be given in evidence and shall be taken of their public duty may be given in evidence and shall be taken to be true under such a degree

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of caution as the nature and circumstances of each a case may appear to require. CANQUE V CA (SOCOR CONSTRUCTION CORPORATION) MENDOZA; APRIL 13, 1999 (jaja) NATURE Petition for review on certiorari FACTS Canque is a contractor doing business under the name and style RDC Construction. At the time material to this case, she had contracts with the government for (a) the restoration of Cebu-Toledo wharf road; (b) the asphalting of Lutopan access road; and (c) the asphalting of Babag road in Lapulapu City. In connection with these projects, petitioner entered into two contracts with private respondent Socor Construction Corporation. The first contract (Exh. A), dated April 26, 1985, provided: The Sub-Contractor (SOCOR Corporation) and the Contractor (RDC Construction) for the consideration hereinafter named, hereby agree as follows: 1. SCOPE OF WORK: a. The Sub-Contractor agrees to perform and execute the Supply, Lay and Compact Item 310 and Item 302; b. That Contractor shall provide the labor and materials needed to complete the project; c. That the Contractor agrees to pay the Sub-Contractor the price of One Thousand Pesos only (P1,000.00) per Metric Ton of Item 310 and Eight Thousand Only (P8,000.00) per Metric Ton of Item 302. d. That the Contractor shall pay the SubContractor the volume of the supplied Item based on the actual weight in Metric Tons delivered, laid and compacted and accepted by the MPWH; e. The construction will commence upon the acceptance of the offer. The second contract (Exh. B), dated July 23, 1985, stated:

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The Supplier (SOCOR Construction) and the Contractor (RDC Construction) for the consideration hereinafter named, hereby agree as follows: 1. SCOPE OF WORK: a. The Supplier agrees to perform and execute the delivery of Item 310 and Item 302 to the jobsite for the Asphalting of DAS Access Road and the Front Gate of ACMDC, Toledo City; b. That the Contractor should inform or give notice to the Supplier two (2) days before the delivery of such items; c. That the Contractor shall pay the Supplier the volume of the supplied items on the actual weight in metric tons delivered and accepted by the MPWH fifteen (15) days after the submission of the bill; d. The delivery will commence upon the acceptance of the offer. On May 28, 1986, private respondent sent petitioner a bill (Exh. C), containing a revised computation, for P299,717.75, plus interest at the rate of 3% a month, representing the balance of petitioner’s total account of P2,098,400.25 for materials delivered and services rendered by private respondent under the two contracts. However, petitioner refused to pay the amount, claiming that private respondent failed to submit the delivery receipts showing the actual weight in metric tons of the items delivered and the acceptance thereof by the government. Hence, on September 22, 1986, private respondent brought suit in the Regional Trial Court of Cebu to recover from petitioner the sum of P299,717.75, plus interest at the rate of 3% a month. In her answer, petitioner admitted the existence of the contracts with private respondent as well as receipt of the billing (Exh. C), dated May 28, 1986. However, she disputed the correctness of the bill ¾ . . . considering that the deliveries of [private respondent] were not signed and acknowledged by the checkers of [petitioner], the bituminous tack coat it delivered to [petitioner] consisted of 60% water, and [petitioner] has already paid [private respondent] about P1,400,000.00 but [private respondent] has not issued any receipt to [petitioner] for said payments and there is no agreement that [private respondent] will charge 3% per month interest. Petitioner subsequently amended her answer denying she had entered into sub-contracts with private respondent. During the trial, private respondent, as plaintiff, presented its vice-president, Sanchez, and Aday, its bookkeeper. Petitioner’s evidence consisted of her lone testimony. On June 22, 1988, the trial court rendered its decision ordering petitioner to pay private respondent the sum of P299,717.75 plus interest at 12% per annum, and costs. It held: . . . . [B]y analyzing the plaintiff’s Book of Collectible Accounts particularly page 17 thereof (Exh. “K”) this Court is convinced that the entries (both payments and billings) recorded thereat are credible. Undeniably, the book contains a detailed account of SOCOR’s commercial transactions with RDC which were entered therein in the course of business. We cannot therefore disregard the entries recorded under Exhibit “K” because the fact of their having been made in the course of business carries with it some degree of trustworthiness. Besides, no proof was ever offered to demonstrate the irregularity of the said entries thus, there is then no cogent reason for us to doubt their authenticity. On appeal, the Court of Appeals affirmed. It upheld the trial court’s reliance on private respondent’s Book of Collectible Accounts (Exh. K) on the basis of Rule 130, §37of the Rules of Court. ISSUES 1. WON the entries in the Book of Collectible Accounts (Exh. K) constitute competent evidence to show such delivery 2. WON there is no competent evidence of private respondent’s claim HELD NO. Considered as a memorandum, Exh. K does not itself constitute evidence. As explained in Borromeo v. Court of Appeals: Under the above provision (Rule 132, §10), the memorandum used to refresh the memory of the witness does not constitute evidence, and may not be admitted as such, for the simple reason that the witness has just the same to testify on the basis of refreshed memory. In other words, where the witness

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has testified independently of or after his testimony has been refreshed by a memorandum of the events in dispute, such memorandum is not admissible as corroborative evidence. It is self-evident that a witness may not be corroborated by any written statement prepared wholly by him. He cannot be more credible just because he supports his open-court declaration with written statements of the same facts even if he did prepare them during the occasion in dispute, unless the proper predicate of his failing memory is priorly laid down. What is more, even where this requirement has been satisfied, the express injunction of the rule itself is that such evidence must be received with caution, if only because it is not very difficult to conceive and fabricate evidence of this nature. This is doubly true when the witness stands to gain materially or otherwise from the admission of such evidence . . . . As the entries in question (Exh. K) were not made based on personal knowledge, they could only corroborate Dolores Aday’s testimony that she made the entries as she received the bills. 2. NO. The entries recorded under Exhibit “K” were supported by Exhibits “L”, “M”, “N”, “O” which are all Socor Billings under the account of RDC Construction. These billings were presented and duly received by the authorized representatives of defendant. The circumstances obtaining in the case at bar clearly show that for a long period of time after receipt thereof, RDC never manifested its dissatisfaction or objection to the aforestated billings submitted by plaintiff. Neither did defendant immediately protest to plaintiff’s alleged incomplete or irregular performance. In view of these facts, we believe Art. 1235 of the New Civil Code is applicable. Art. 1235. When the obligee accepts the performance, knowing its incompleteness and irregularity and without expressing any protest or objection, the obligation is deemed complied with. After a conscientious scrutiny of the records, we find Exhibit “D-1” (p. 85 record) to be a material proof of plaintiff’s complete fulfillment of its obligation. There is no question that plaintiff supplied RDC Construction with Item 302 (Bitunimous Prime Coat), Item 303 (Bituminous Tack Coat) and Item 310 (Bitunimous Concrete Surface Course) in all the three projects of the

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latter. The Lutopan Access Road project, the Toledo wharf project and the Babag-Lapulapu Road project. On the other hand, no proof was ever offered by defendant to show the presence of other contractors in those projects. We can therefore conclude that it was Socor Construction Corp. ALONE who supplied RDC with Bituminous Prime Coat, Bituminous Tack Coat and Bituminous Concrete Surface Course for all the aforenamed three projects. Indeed, while petitioner had previously paid private respondent about P1,400,000.00 for deliveries made in the past, she did not show that she made such payments only after the delivery receipts had been presented by private respondent. On the other hand, it appears that petitioner was able to collect the full amount of project costs from the government, so that petitioner would be unjustly enriched at the expense of private respondent if she is not made to pay what is her just obligation under the contracts. Disposition Decision affirmed EMMANUEL B. AZNAR v. CITIBANK, N.A., (Philippines) G.R. No. 164273 AUSTRIA-MARTINEZ; March 28, 2007 (edel) NATURE: CERTIORARI Facts: -Aznar, a known businessman in Cebu, is a holder of a Preferred Mastercard issued by Citibank with a credit limit of P150,000.00. As he and his wife, Zoraida, planned to take their two grandchildren, on an Asian tour, Aznar made a total advance deposit of P485,000.00 with Citibank with the intention of increasing his credit limit to P635,000.00. -With the use of his Mastercard, Aznar purchased plane tickets to Kuala Lumpur for his group worth P237,000.00. -During the trip, Aznar claims that when he presented his Mastercard in some establishments in Malaysia, Singapore and Indonesia, the same was not honored. -And when he tried to use the same in Ingtan Tour and Travel Agency (Ingtan Agency) in Indonesia to purchase plane tickets to Bali, it was again dishonored for the reason that his card was blacklisted by Citibank. Such dishonor forced him to buy the tickets in cash. -Aznar filed a complaint for damages against Citibank, 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. -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 -To prove that Citibank blacklisted his Mastercard, Aznar presented a computer print-out, denominated as ON-LINE AUTHORIZATIONS FOREIGN ACCOUNT ACTIVITY REPORT, issued to him by Ingtan Agency (Exh. "G") with the signature of one Victrina Elnado Nubi which shows that his card in question was "DECL OVERLIMIT" or declared over the limit. -Citibank denied the allegation that it blacklisted Aznar’s card. To prove that they did not blacklist Aznar’s card, Citibank’s Credit Card Department Head, Dennis Flores, presented Warning Cancellation Bulletins, which contained the list of its canceled cards covering the period of Aznar’s trip. Aznar’s wasn’t in the list. -RTC of Cebu dismissed Aznar’s complaint for lack of merit and held that as between the computer print-out presented by Aznar and the Warning Cancellation Bulletins presented by Citibank, the latter had more weight as their due execution and authenticity were duly established by Citibank.Also held that even if it was shown that Aznar’s 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. -Aznar filed a MFR 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. The case was re-raffled with the new judge granting Aznar’s MR saying that it was improbable that a man of Aznar’s stature would fabricate the computer print-out which shows that Aznar’s 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

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(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 Aznar’s Mastercard; no rebutting evidence was presented by Citibank to prove that Aznar’s 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 Aznar’s credit limit and ensure that Aznar will not encounter any embarrassing situation with the use of his Mastercard; Citibank’s 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. -Citibank filed an appeal with the CA and its counsel filed an administrative case against Judge De la Peña 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. -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 Sec. 2, Rule 5 of the Rules on Electronic Evidence or under Sect.20 of Rule 132 of the Rules of Court by anyone who saw the document executed or written; Aznar, however, failed to prove the authenticity of Exh. "G", thus it must be excluded; the unrefuted testimony of Aznar that his credit card was dishonored by Ingtan Agency and certain establishments abroad is not sufficient to justify the award of damages in his favor, absent any showing that Citibank had anything to do with the said dishonor; Citibank had no absolute control over the actions of its merchant affiliates, thus it should not be held liable for the dishonor of Aznar’s credit card by said establishments. -Aznar’s MR was denied by the CA. -As regards the admin case, J. Dela Pena was adjudged guilty.

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Issue: WON Aznar has established his claim against Citibank. If so, WON Citibank is liable for damages. HELD: NO to both. On his claim: 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. -Aznar failed to prove with a preponderance of evidence that Citibank blacklisted his Mastercard or placed the same on the "hot list. -Aznar in his testimony admitted that he had no personal knowledge that his Mastercard was blacklisted by Citibank and only presumed such fact from the dishonor of his card. -The dishonor of Aznar’s Mastercard is not sufficient to support a conclusion that said credit card was blacklisted by Citibank, especially in view of Aznar’s own admission that in other merchant establishments in Kuala Lumpur and Singapore, his Mastercard was accepted and honored. -Aznar puts much weight on the ON-LINE AUTHORIZATION FOREIGN ACCOUNT ACTIVITY REPORT, a computer print-out handed to Aznar by Ingtan Agency, marked as Exh. "G", to prove that his Mastercard was dishonored for being blacklisted. -But such exhibit cannot be considered admissible as its authenticity and due execution were not sufficiently established by Aznar as per Sec 20 of Rule 132 of the RoC. 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. -Even 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. -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 printout because while the name of Ingtan Agency was mentioned by Aznar, its business address was not reflected in the print-out. -Indeed, Aznar failed to demonstrate how the information reflected on the print-out was generated and how the said information could be relied upon as true. -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;

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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. - Also, It is not clear 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 printout 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 Warning Cancellation Bulletins (WCB) which covered the period 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. -Citibank produced 300 documents to show that Aznar 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 (exh.G) and the Warning Cancellation Bulletins 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 plaintiff’s preferred master card was actually placed in the “hot list” or blacklisted for the following reasons: 1) the due execution and authentication of these Warning Cancellation Bulletins (or WCB) have been duly established and identified by Citibank’s witness, Dennis Flores, one of the bank’s officers, who is the head of its

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credit card department, and, TF, competent to testify on the said bulletins as having been issued by the defendant bank showing that plaintiff’s preferred master credit card was never blacklisted or placed in the Bank’s “hot list”. While Aznar’s computer print out 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 presented by defendants (sic) and an unauthenticated private document, plaintiff’s computer print out (Exh. G), the former deserves greater evidentiary weight supporting the findings of this Court that plaintiff’ s preferred master card had never been blacklisted at all or placed in a so-called “hot list” by defendant. 2) On implied novation (when he added addt’l funds to increase credit limit): the Court finds that petitioner's argument on this point has no leg to stand on. On damages: -the Court agrees with Aznar that the terms and conditions of Citibank’s 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. -On Par 7 of said contract: 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,Citibank. On limiting its liability to P1k or the actual damage proven, whichever is lesser: 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. -The invalidity of the terms and conditions being invoked by Citibank, notwithstanding, the Court still cannot award damages in favor of petitioner. -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. -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. BPI v. CA: xxx… 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. Disposition: The petition is denied for lack of merit. LLEMOS V. LLEMOS 513 SCRA 128 AUSTRIA-MARTINEZ; January 26, 2007 (chriscaps) FACTS - Complaint was filed by respondents, the compulsory heirs of Saturnina Salvatin, seeking to declare the nullity of TCT of petitioners on ground that their predecessor-in-interest, Felipe Llemos, acquired the prop thru forged deed of sale. - RTC ruled in favor of petitioners, then the defendants. It held that though respondent Eusebia testified that Saturnina was her grandma and that she died in 1938, Eusebia didn’t testify on the fact of death fr personal knowledge; the cause of action heavily rests on Certificate of Death only and no other evidence. - RTC: The Certificate of Death is a pvt doc and must be authenticated. The respondents failed to authenticate the same. - CA reversed. It held that entries in Registry Book of St. John Metropolitan Cathedral may be considered entries made in the course of business, an exception to the hearsay rule. It held that the Deed of Absolute Sale purportedly executed in 1964 is invalid, as there couldn’t be a meeting of the minds between a dead person and a living one. It held that Saturnina died in 1938.

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ISSUE/S 1. WON prescription / laches has set in 2. WON the church registries are covered by the hearsay rule HELD 1. NO. - An action for annulment of title / reconveyance based on fraud is imprescriptible where the plaintiff is in possession of the prop subject of the acts. - Laches can’t be used to defeat justice or perpetuate fraud. Neither should it be used to prevent rightful owners of prop fr recovering what was fraudulently registered in another’s name. 2. YES. - Church registries of births, marriages, and deaths subsequent to General Orders No. 68 and Act No. 190 are no longer public writings, nor are they kept by duly authorized public officials. They are private writings. Their authenticity must be proved. - Respondents failed to establish due execution and authenticity of Certificate of Death. - CA erred in considering the entry as an entry in the course of official business. - Respondents failed to submit Register of Dead of St. John Metropolitan and failed to comply w/ Sec 5 Rule 130 - Register of Dead is in custody of the cathedral but respondents failed to show that it presented the Certificate of Death bec Register of Dead can’t be produced in court. - Moreover, Court notes the absence of evidence showing that “Salvatin Salvatin” mentioned in the Cert of Death is the “Saturnina Salvatin” who is their predecessor-in-interest. - On the other hand, petitioners presented the Deed of Absolute Sale, a notarized doc. A notarized doc is executed to lend truth to statements contained therein and to authenticity of signatures. They enjoy presumption of regularity. - Respondents failed to establish date of death of Saturnina, w/c could have proven that the thumbmark in the Deed of Absolute Sale was fraudulently affixed. NESTLE V FY SONS INC. G.R. No. 150780 CORONA; May 5, 2006

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(joey) NATURE Petition for review on certiorari under Rule 45 FACTS Petitioner and respondent entered into a distributorship agreement whereby petitioner would supply its products for respondent to distribute to its food service outlets. A deed of assignment was executed by respondent, assigning to petitioner the time deposit of Laureano in the amount of P500,000 to secure respondent’s credit purchases. An SPA was likewise executed by Laureano authorizing the respondent to use the time deposit as collateral. - Petitioner fined respondent P20,000 for selling 50 cases of Krem-Top liquid coffee creamer to Lu Hing Market, a retail outlet in Tarlac. Respondent paid the fine. Later, Krem-Top liquid coffee creamer was sold to Augustus Bakery and Grocery. Petitioner again imposed a P40,000 fine which respondent refused to pay. The selling was allegedly done in violation of the agreement. - Respondent wrote petitioner to complain about the latter’s breaches of their agreement and the various acts of bad faith committed by petitioner against respondent. Respondent demanded the payment of damages. In turn, petitioner sent respondent a demand letter and notice of termination, alleging that the latter had outstanding accounts of P995,319.81. When the alleged accounts were not settled, petitioner applied the P500,000 time deposit as partial payment. - Respondent filed a complaint for damages against petitioner, alleging bad faith. According to respondent, petitioner made representations and promises of rendering support, including marketing support, assignment of representatives by way of assistance in its development efforts, and assurances of income in a marketing area not previously developed. Thus, respondent was lured into executing a distributorship agreement with the petitioner. However, not only did petitioner fail to give promotional support, it also deliberately failed to promptly supply the respondent with the stocks for its orders; supported a nondistributor; and concocted falsified charges to cause the termination of the distributorship agreement without just cause. - RTC ruled in favor of the respondent. CA affirmed ISSUES 1. WON “the ratiocinations of the appellant as to the appellee’s alleged violation of the contract were weak and unconvincing” and “the appellee’s alleged nonpayment and outstanding balance was not sufficiently proven” 2. WON the testimony of the witness, who prepared the statement of account should have been disregarded for being incompetent evidence 3. WON the award of actual damages and the refund of the time deposit were justified 4. WON petitioner should be awarded its counterclaim HELD 1. YES - Petitioner asserts that Florentino Yue, Jr., a director and officer of respondent corporation, admitted in open court that the respondent had an unpaid obligation to petitioner in the amount of “around P900,000.” - Respondent counters that this statement was merely in answer to the question of the presiding judge on what ground petitioner supposedly terminated the agreement. The witness was not being asked, nor was he addressing, the truth of such ground. - Petitioner quoted Mr. Yue’s statement in isolation from the rest of his testimony and took it out of context. Obviously, Yue’s statement cannot be considered a judicial admission. 2. YES - The appellant’s Statement of Account showing such alleged unpaid balance is undated, and it does not show receipt thereof by the appellee, and when, if such indeed was received. Moreover, there are no supporting documents to sustain such unpaid accounts. - Section 43, Rule 130 of the ROC does not apply to this case because it does not involve entries made in the course of business. Rayos testified on a statement of account she prepared on the basis of invoices and delivery orders which she knew nothing about. She had no personal knowledge of the facts on which the accounts were based since she was not involved in the delivery of goods and was merely in charge of the records and documents of all accounts receivable as part of her duties as credit and collection manager. She thus knew nothing of the truth or falsity of the facts stated in the invoices and delivery orders, i.e., whether such deliveries were in fact made in the amounts and on the dates stated, or whether they were actually received by respondent. She was not even the credit

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and collection manager during the period the agreement was in effect. This can only mean that she merely obtained these documents from another without any personal knowledge of their contents. - The invoices and delivery orders presented by petitioner were self-serving. Having generated these documents, petitioner could have easily fabricated them. Petitioner’s failure to present any competent witness to identify the signatures and other information in those invoices and delivery orders cast doubt on their veracity. 3. YES - Petitioner did not challenge the findings that it committed various violations of the agreement. Hence, there was legal basis for the grant of actual damages. - Petitioner asserts that the documentary evidence presented by respondent to prove actual damages in the amount of P4,246,015.60 should not have been considered because respondent’s complaint only prayed for an award of P1M. - Indeed, a court acquires jurisdiction over the claim of damages upon payment of the correct docket fees. In this case, it is not disputed that respondent paid docket fees based on the amounts prayed for in its complaint. Respondent adduced evidence to prove its losses. It was proper for the CA and the RTC to consider this evidence and award the sum of P1M. Had the courts below awarded a sum more than P1M, which was the amount prayed for, an additional filing fee would have been assessed and imposed as a lien on the judgment. However, the courts limited their award to the amount prayed for. 4. NO - Petitioner failed to prove the alleged outstanding accounts of respondent. Thus, it is not entitled to the supposed unpaid balance. - Petitioner, being at fault and in bad faith, and there being no proof that respondent was guilty of any wrongdoing, cannot claim moral and exemplary damages and attorney’s fees from respondent. Dispositive Petition is DENIED for lack of merit. CA decision and resolution are hereby AFFIRMED.

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ledger cards it presented evidence. The CA affirmed. were merely hearsay

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substantiated. (Hence, the bank’s allegation that Gan is estopped was also rejected there being no proof that Gan received copies of the ledgers.) Admittedly, Mercado had no personal knowledge of this arrangement. The bank could have presented Qui whom they alleged allowed the special arrangement with Gan. But it did not. Disposition Petition is DENIED. Decision of the CA affirmed in toto. Entries in Official Records LAO v. STANDARD INSURANCE G.R. No. 140023 QUISUMBING; August 14, 2003 (ricky) NATURE Petition for review on certiorari FACTS - Petitioner Rudy Lao is the owner of a Fuso truck, with Plate No. FCG-538, insured with respondent Standard Insurance Co. 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: the insured truck bumped another truck, also owned by Lao. The latter truck, with Plate No. FBS-917, 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. - Lao filed a claim with the insurance company for the proceeds from his policy. However, the claim was denied on the ground that the driver of the insured truck, Leonardo Anit, did not possess a proper driver’s license at the time of the accident. The restriction in Leonardo Anit’s driver’s 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 of the insurance policy. In addition, the insurance company cited the following excerpts from the police blotter of the Iloilo INP, to wit:

SECURITY BANK v. GAN G.R. No. 150464 CORONA; June 27, 2006 (ricky) NATURE Petition for review on certiorari FACTS - Security Bank and Trust Company is a banking institution duly organized and existing under the laws of the Philippines. In 1981, Eric Gan opened a current account at its Soler Branch in Santa Cruz, Manila. Security Bank alleged that it had an agreement with Gan wherein the latter would deposit an initial amount in his current account and he could draw checks on said account provided there were sufficient funds to cover them. Furthermore, under a special arrangement with the branch manager, Mr. Qui, he was allowed to transfer funds from his account to another person’s account also within the same branch. He availed of such arrangement several times by depositing checks in his account and even before they cleared, he withdrew the proceeds and transferred them to the other account. These transactions were covered by what were known as “debit memos” since Gan had no sufficient funds to cover the amounts he transferred. - Gan purportedly incurred an overdraft or negative balance in his account. As of December 14, 1982, the overdraft balance came up to P153,757.78. According to Security Bank, Gan refused to heed repeated demands for payment. For the period December 14, 1982 to September 15, 1990, his total obligation reached P297,060.01, inclusive of interest. - In 1991, Security Bank filed a complaint for sum of money in the Manila RTC against Gan to recover the P297,060.01 with 12% interest per annum from September 16, 1990 until fully paid, attorney’s fees, litigation expenses and costs of suit. - Gan denied liability and contended that the alleged overdraft resulted from transactions done without his knowledge and consent. RTC dismissed the complaint holding that Security Bank was not able to prove that Gan owed it the amount claimed considering that the

ISSUE WON the CA erred in ruling that Security Bank has not sufficiently proved its cause of action against Gan and that the ledger cards and the testimony of Patricio Mercado was not the best evidence of the transactions made by Gan relative to his account. HELD NO. Ratio Under the exception to the hearsay rule in Sec 43 of Rule 130, the admission in evidence of entries in corporate books required the satisfaction of the following conditions: 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 Reasoning The ledger entries did not meet the first and third requisites. Security Bank presented Patricio Mercado, who was the bookkeeper who prepared the entries, to testify on the transactions pertaining to Gan’s account. It was in the course of his testimony that the ledger entries were presented. There was, therefore, neither justification nor necessity for the presentation of the entries as the person who made them was available to testify in court. Moreover, Mercado had no personal knowledge of the facts constituting the entries, particularly those entries which resulted in the negative balance. He had no knowledge of the truth or falsity of these entries. - The transfers were made under the authority of Qui. Gan denied that he authorized these funds transfers. The entries in the ledger were not competent evidence to prove that Gan consented to the transfers of funds. These entries merely showed that the transfers were indeed made and that Qui approved them. Security Bank’s claim that Gan availed of a special arrangement to transfer funds from his account to another person’s account was a bare allegation that was never

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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 driven by LEONARDO ANIT Y PANES, 33 yrs, a res. of Brgy Laya, Balasan, Iloilo with License Nr 1836482.… - Lao claims that at the time of the accident, it was in fact Giddie Boy Y Coyel who was driving the insured truck. Giddie Boy possessed a driver’s license authorizing him to drive vehicles such as the truck which weighed more than 4,500 kgs. As evidence, Lao presented the Motor Vehicle Accident Report wherein the Investigating Officer, Pat. 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. However, the insurance company was firm in its denial of the claim. - The RTC, after trial, dismissed the case finding that Lao lacks sufficient cause of action and further ordered him to pay the defendant P20,000 as attorney’s fees plus P500 for appearance fee and P50,000 as exemplary damages. The CA affirmed. ISSUES 1. WON the admissibility and evidentiary weight given to the police blotter was proper. 2. WON the credence given by the trial court to the version of the respondent vis-à-vis the testimony of the witnesses was proper. 3. WON the award of exemplary damages and attorney’s fees was proper. HELD 1. YES. Ratio 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. Reasoning 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. Furthermore, 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. 2. YES. Ratio Great weight, and even finality, is given to the factual conclusions of the CA which affirm those of the trial courts. Reasoning We find on this score no reason to overturn such conclusions. 3. NO. Ratio 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. Reasoning The insurance company had not shown sufficient evidence that Lao 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. 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 attorney’s 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. But it was not sufficiently shown that Lao acted maliciously in instituting the claim for damages.

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Disposition Decision of the CA is AFFIRMED, with the MODIFICATION that the award of exemplary damages and attorney’s fees is DELETED. HERCE, JR., V MUNICIPALITY OF CABUYAO G.R. No. 166645 YNARES-SANTIAGO; November 11, 2005 (mini) NATURE Petition for review on certiorari of CA decision affirming RTC decision to reopen the decree of registration issued by the Land Registration Authority (LRA) in favor of petitioner FACTS - Sometime in 1956 and 1957, Juanita Carpena and co. applied for the judicial registration of 44 parcels of land all situated in Cabuyao, Laguna. The trial court granted the application and directed the issuance of a decree of registration. However, only 42 were issued decrees. One of these two parcels for which no decree of registration was issued was made the subject of cadastral proceedings instituted by the Republic of the Philippines in 1976. - Petitioner Vicente D. Herce filed an opposition to the proceedings (he had acquired ownership over the subject property, having purchased it from a certain Jose Carpena, one of Juanita’s hers, in August 1975.) - After trial, the court awarded property in favor of Herce. However, a decree of registration could not be immediately issued considering that the subject property was included in the 1956-57 case filed by Juanita Carpena. Thus in June 1995, Herce filed a Motion to Modify Decision explaining that since no decree was issued yet in the original LRC Case, the decision therein could still be modified by excluding the subject property in order to facilitate the issuance of the decree to him. - After hearing, the trial court issued an order dated May 3, 1996 granting the motion and directing the Land Registration Authority (LRA) to finally issue a decree of registration in the name of petitioner Herce. - Municipality of Cabuyao filed, on May 15, 1996, a petition for the reconstitution of its alleged title over the disputed property before the RTC Laguna, arguing that it was issued a decree of registration over the said

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property as early as 1911. This was dismissed in Feb 1996. In the meantime, the LRA issued a decree of registration in favor of Herce followed by the issuance of Original Certificate of Title in his name. - On Jan 27, 1998, the Municipality of Cabuyao filed a petition for the reopening of the decree of registration issued in favor of Herce. - This led to the issuance of the questioned 1998 RTC Order directing the reopening and review of the decree of registration. “Considering the Report dated Dec 2, 1980, of the Acting Commissioner of Land Registration that Decree No. 4244 was issued on March 3, 1911 in LRC (GLRO), Record No. 6763, in favor of the Municipality of Cabuyao for apparently the same parcel of land applied for herein, this Court resolves to open the decree of registration issued herein.” - Herce sought reconsideration; CA denied. CA found that the lower court did not abuse its discretion in ordering the reopening of the decree of registration. It held that the trial court properly granted the reopening of the decree of title considering the existence of two conflicting titles – one in favor of petitioner and the other in the name of the Municipality of Cabuyao. * Petitioner’s Contentions - There is no record of Decree No. 4244 that was purportedly issued in favor of the municipality on March 3, 1911 other than the entry in the Ordinary Registration Book of the LRA. Hence, there is no way of determining which of the six lots applied for registration is/are covered by the decree. Petitioner insists that the lack of documentary proof and the fact that respondent municipality never had possession of the subject property prove that it never owned the disputed property. - The petition to open a decree of registration will not prosper if the alleged fraudulent deprivation of ownership had been controverted, litigated, and resolved. Municipality could no longer question the factual findings of the cadastral court. * Municipality’s Comment - Decree No. 4244 was issued in its favor although pertinent records evidencing said decree of registration were lost or destroyed during the war. It points out that the entries in the approved survey plan for the Municipality of Cabuyao show that Decree No. 4244 was issued on March 3, 1911 under Cadastral Case No. 6763, as confirmed by the report submitted by the LRA to then CFI, Branch 1, Biñan, Laguna. ISSUES 1. WON Decree No. 4244 issued in favor of the Municipality has become indefeasible 2. WON the Ordinary Decree Book is prima facie proof of the entries appearing therein HELD 1. YES Ratio A land already decreed and registered in an ordinary registration proceedings cannot again be the subject of adjudication. Indefeasibility and imprescriptibility are the cornerstones of land registration proceedings. Thus, once a decree of registration is made under the Torrens system, and the reglementary period has passed within which the decree may be questioned, the title is perfected and cannot be collaterally questioned later on. Reasoning (City of Manila v Lack) The purpose of the legislature in creating the Court of Land Registration was to bring the land titles of the Philippine under one comprehensive and harmonious system. The Court of Land Registration does not create or vest a title. It simply confirms a title already created and already vested, rendering it forever indefeasible. 2. YES Ratio The trustworthiness of public documents and the value given to the entries made therein could be grounded on (1) the sense of official duty in the preparation of the statement made, (2) the penalty which is usually affixed to a breach of that duty, (3) the routine and disinterested origin of most such statements, and (4) the publicity of record which makes more likely the prior exposure of such errors as might have occurred. Reasoning Since Decree No. 4244 has become indefeasible, Herce is now barred from claiming the subject land. Although the municipality’s claim of ownership is based on the entry in the Ordinary Decree Book, LRC (CLR) Rec. No. 6763, showing that Decree No. 4244 was issued on March 3, 1911 and that Lot 1 Plan II-2719 was one of the six parcels of land previously applied for registration by the Municipality of Cabuyao in LRC (GLRO) Record No. 6763, being a public document, the Ordinary Decree Book is prima facie proof of the entries appearing therein.

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- These incidents were attested to by Acting Chief, Division of Ordinary Registration, Silverio G. Perez, in the report dated December 2, 1980. - In the absence of evidence to the contrary, the Ordinary Decree Book, LRC (CLR) Rec. No. 6763, showing that Decree No. 4244 was issued on March 3, 1911, is presumed to have been regularly issued by the accountable public officers who enjoy the legal presumption of regularity in the performance of their functions. Thus, the proceedings that led to the issuance of Decree No. 4244 in favor of the Municipality of Cabuyao cannot be overturned without any countervailing proof to the contrary. - Tichangco v. Enriquez: To overturn this legal presumption carelessly will not only endanger judicial stability, but also violate the underlying principle of the Torrens system. Indeed, to do so would reduce the vaunted legal indefeasibility of Torrens titles to meaningless verbiage. Disposition Petition is DENIED. The validity of Decree No. 4244 issued on March 3, 1911 in favor of respondent Municipality of Cabuyo, Laguna is AFFIRMED, whereas Decree No. N-216115 and Original Certificate of Title No. 0-2099, issued in the name of petitioner Herce, are declared NULL and VOID. JOHN PAUL FERNANDEZ V CA (CARLITO FERNANDEZ) GR 108366 PUNO; Feb 16, 1994 (bauza) FACTS - Petitioners filed a case for support against private respondent before QC RTC. The complaint was dismissed on Dec 9, 1986 on the ground that "there is nothing in the material allegations in the complaint that seeks to compel (private respondent) to recognize/acknowledge (petitioners) as his illegitimate children," and that there was no sufficient and competent evidence to prove petitioners’ filiation. - Feb 19, 1987: petitioners file the case at bench, another action for recognition and support against the private respondent before another branch of the QC RTC. - The evidence shows that VIOLETA P. ESGUERRA, single, the mother and guardian ad litem of the 2 petitioners, CLARO ANTONIO FERNANDEZ and JOHN

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PAUL FERNANDEZ, met Carlito sometime in 1983, at the Meralco Compound tennis courts. A Meralco employee and a tennis enthusiast, Carlito used to spend his weekends regularly at said courts, where Violeta's father served as tennis instructor. - Violeta pointed to Carlito as the father of her 2 sons. She claimed that they started their illicit sexual relationship 6 months after their 1st meeting. The tryst resulted in the birth of petitioners. Violeta claims not to have known that Carlito was married until the birth of her 2 children. She averred they were married in civil rites in Oct 1983. In March 1985, however, she discovered that the marriage license which they used was spurious. - To bolster their case, petitioners presented the following documentary evidence: their certificates of live birth, identifying respondent Carlito as their father; the baptismal certificate of petitioner Claro which also states that his father is respondent Carlito; photographs of Carlito taken during the baptism of petitioner Claro; and pictures of respondent Carlito and Claro taken at the home of Violeta. - Petitioners likewise presented as witnesses, Rosario Cantoria, Dr. Milagros Villanueva, Ruby Chua Cu, and Fr. Liberato Fernandez. The first 3 witnesses told the TC that Violeta had, at different times, introduced Carlito to them as her "husband". Fr. Fernandez, on the other hand, testified that Carlito was the one who presented himself as the father of petitioner Claro during the latter's baptism. - In defense, respondent denied Violeta's allegations that he sired the petitioners. He averred that he only served as one of the sponsors in the baptism of petitioner Claro. This claim was corroborated by the testimony of Rodante Pagtakhan, an officemate of Carlito who also stood as a sponsor of Claro during his baptism. Carlito also presented as witness, Fidel Arcagua, a waiter of the Lighthouse Restaurant. He disputed Violeta's allegation that she and respondent Carlito frequented the said restaurant during their affair. Arcagua stated he never saw Violeta and Carlito together at the said restaurant. Respondent also declared that he only learned he was named in the birth certificates of both petitioners as their father after he was sued for support in (the 1st case) - Based on the evidence adduced by the parties, TC ruled for petitioners, viz.: In view of the above, the Court concludes and so holds that the plaintiffs minors (petitioners herein) are entitled to the relief's prayed for in the complaint. The defendant (herein private respondent) is hereby ordered to recognize Claro Antonio Fernandez, now aged 6, and John Paul Fernandez, now aged 4 ½ as his sons. As the defendant has admitted that he has a supervisory job at the Meralco, he shall give the plaintiffs support in the amount of P2,000 each a month, payment to be delivered to Violeta Esguerra, the children's mother and natural guardian, with arrears reckoned as of the filing of the complaint on February 19, 1987. - On appeal, the decision was set aside and petitioners’ complaint was dismissed by the CA in its impugned decision. It found that the "proof relied upon by TC is inadequate to prove the (private respondent's) paternity and filiation of (petitioners)." It further held that the doctrine of res judicata applied because of the dismissal of the petitioners’ earlier complaint. - MFR denied. ISSUE/S 1. WON objects presented were sufficient to determine filiation. 2. WON documents presented were sufficient to determine filiation. 3. WON the testimonies presented were sufficient to determine filiation. HELD 1. NO. Reasoning Petitioners cannot rely on the photographs showing the presence of the private respondent in the baptism of petitioner Claro. These are far from proofs that Carlito is the father of Claro. As explained by Carlito, he was in the baptism as a sponsor of Claro. This was corroborated by Pagtakhan. The pictures taken in the house of Violeta showing private respondent showering affection to Claro also fall short of the evidence required to prove paternity. As held in Tan vs. Trocio: “the pictures of Jewels and Respondent showing allegedly their physical likeness to each other is inconclusive to prove paternity and much less would prove violation of complaint's person and honor.” 2. NO. Reasoning The baptismal certificates of petitioner Claro naming private respondent as his father has scant evidentiary value. There is no showing that private respondent participated in its preparation. As

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held in Berciles vs. Systems, et al.: “… the rule is that although the baptismal record of a natural child describes her as a child of the decedent, the baptismal record cannot be held to be a voluntary recognition of parentage. . . . The reason for this rule that canonical records do not constitute the authentic document prescribed by Arts. 115 and 117 to prove the legitimate filiation of a child in that such canonical record is simply proof of the only act to which the priest may certify by reason of his personal knowledge, an act done by himself or in his presence, like the administration of the sacrament upon a day stated; it is no proof of the declarations in the record with respect to the parentage of the child baptized, or of prior and distinct facts which require separate and concrete evidence.” In Macandang vs. CA, SC also ruled that while baptismal certificates may be considered public documents, they can only serve as evidence of the administration of the sacraments on the dates so specified. They are not necessarily competent evidence of the veracity of entries therein with respect to the child's paternity. The certificates of live birth of petitioners identifying private respondent as their father are also incompetent evidence on the issue of their paternity. Again, the records do no show that private respondent had a hand in the preparation of said certificates. In rejecting these certificates, the CA ruling is in accord with Roces vs. Local Civil Registrar: “. . . Sec 5 of Act No. 3793 and Article 280, CC explicitly prohibited, not only the naming of the father or the child born outside wedlock, when the birth certificates, 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.“ SC reiterated this rule in Berciles: "a birth certificate not signed by the alleged father therein indicated is not competent evidence of paternity." 3. NO. Reasoning Petitioners capitalize on the testimony of Fr. Fernandez who solemnized the baptismal ceremony of Claro. He declared on the witness stand that he

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remembered who was presented as Claro’s father in the baptism and when asked to identify said person, he pointed at Carlito. However, on cross examination, Fr. Fernandez admitted that he had to be shown a picture of the private respondent by Violeta Esguerra to recognize him. He also stated that it was Violeta who said that private respondent was the father. There is no proof that Fr. Fernandez is a close friend of Violeta and Carlito w/c should render unquestionable his identification of the private respondent during petitioner Claro's baptism. In the absence of this proof, we are not prepared to concede that Father Fernandez who officiates numerous baptismal ceremonies day in and day out can remember the parents of the children he has baptized. We cannot also disturb the findings of the CA on the credibility of Violeta. Her testimony is highly suspect as it is self-serving and by itself, is insufficient to prove the paternity of the petitioners. Res judicata unnecessary to discuss considering that petitioners evidence failed to substantiate their cause of action. Disposition IN VIEW WHEREOF, the petition is DISMISSED and the Decision of the respondent court is AFFIRMED. Costs against petitioners. 2 writs of execution were issued against him to satisfy the amount but both writs were returned unsatisfied by the sheriff. -On February 17, 1953, plaintiffs Emilio Manalo and his wife Clara Salvador, father and mother respectively of Armando filed the present action against the Company to enforce its subsidiary liability, pursuant to Articles 102 and 103 of the Revised Penal Code. -It also filed a motion to dismiss the complaint unless and until the convicted driver Hernandez was included as a party defendant, the Company considering him an indispensable party. The TC and CA both correctly ruled that Hernandez was not an indispensable party defendant. The Company is now before SC. -To prove their case against the defendant Company, the plaintiffs introduced a copy of the decision in the criminal case convicting Hernandez of homicide through reckless imprudence, the writs of execution to enforce the civil liability, and the returns of the sheriff showing that the two writs of execution were not satisfied because of the insolvency of Hernandez, the sheriff being unable to locate any property in his name. Over the objections of the Company, the trial court admitted this evidence and based its decision in the present case on the same. -The Company contends that this kind of evidence is inadmissible. The Company also claims that in admitting as evidence the sheriff's return of the writs of execution to prove the insolvency of Hernandez, without requiring said opportunity to cross-examine said sheriff. ISSUE: WON the Company is correct. HELD: NO. The Company is mistaken. A sheriff's return is an official statement made by a public official in the performance of a duty specially enjoined by the law and forming part of official records, and is prima facie evidence of the facts stated therein. (Rule 39, section 11 and Rule 123, section 35, Rules of Court.) The sheriff's making the return need not testify in court as to the facts stated in his entry. In the case of Antillon vs. Barcelon, 37 Phil., 151 citing Wigmore on Evidence, this court said: To the foregoing rules with reference to the method of proving private documents an

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exception is made with reference to the method of proving public documents executed before and certified to, under the land of seal of certain public officials. The courts and the legislature have recognized the valid reason for such an exception. The litigation is unlimited in which testimony by officials is daily needed, the occasion in which the officials would be summoned from his ordinary duties to declare as a witness are numberless. The public officers are few in whose daily work something is not done in which testimony is not needed from official statements, host of official would be found devoting the greater part of their time to attending as witness in court or delivering their depositions before an officer. The work of Administration of government and the interest of the public having business with officials would alike suffer in consequence. And this Court added: The law reposes a particular confidence in public officers that it presumes they will discharge their several trust with accuracy and fidelity; and therefore, whatever acts they do in discharge of their public duty may be given in evidence and shall be taken of their public duty may be given in evidence and shall be taken to be true under such a degree of caution as the nature and circumstances of each a case may appear to require. (SOLINAP V LOCSIN) IN THE MATTER OF THE INTESTATE ESTATE OF JUAN LOCSIN SR. G.R. No. 146737 SANDOVAL-GUTIERREZ: December 10, 2001 (da) FACTS: -Eleven (11) months after Juan "Jhonny" Locsin, Sr. died intestate on December 11, 1990, respondent Juan E. Locsin, Jr. filed a "Petition for Letters of Administration" praying that he be appointed Administrator of the Intestate Estate of the deceased. He allegedthat he is an acknowledged natural child of the late Juan C. Locsin and that he is the only surviving legal heir of the decedent.

MANALO V. ROBLES G.R. No. L-8171; August 16, 1956; Montemayor (Chrislao) FACTS: -On August 9, 1947, a taxicab owned and operated by defendant Robles Transportation Company, Inc. (the Company) and driven by Hernandez its driver, collided with a passenger truck. In the course of and a result of the accident, the taxicab ran over Armando Manalo, an eleven year old, causing him physical injuries which resulted in his death several days later. -Hernandez was prosecuted for homicide through reckless imprudence and after trial was found guilty. He served out his sentence but failed to pay the indemnity.

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-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 respondent's 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. -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. -To support his claim that he is an acknowledged natural child of the deceased respondent submitted a machine copy (marked as Exhibit "D") of his Certificate of Live Birth No. 477 found in the bound volume of birth records in the Office of the Local Clerk 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") 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. -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", 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 dearly 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. ISSUE: WON Juan E. Locsin Jr is an interested party and is qualified to be granted letters of administration (Which of the two documents is genuine) HELD: Juan E. Locsin, Jr is not an interested person within the meaning of Section 2, Rule 79 of the Revised Rules of Court entitled to the issuance of letters of administration since he failed to prove his filiation with the late Juan C. Locsin, Sr.. (Certificate of Live Birth No. 477 (Exhibit "D") is spurious) Reasoning: 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; XXX

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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" 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. 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 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 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 acknowledgment 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

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order to establish the child's acknowledgment." (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. Exhibit D spurious: -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. -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 "x x x 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." -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. -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. -There is no explanation why out of so many certificates, this vital document, Exhibit "D", was merely pasted with the volume. 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.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 Roces vs. Local Civil Registrar: "Section 5 of Act No. 3753 and Article 280 of the Civil Code of the Philippines . . . 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,

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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 Appeal 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 only prima 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. -Respondent's photograph with his mother near the coffin of the late Juan C. Locsin cannot and will not constitute proof of filiation, 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. AFRICA V CALTEX G.R. No. L-12986 MAKALINTAL; March 31, 1966 (rean) NATURE Petition for review of CA decision

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FACTS - The action is for damages under A1902 and A1903 OCC. In the afternoon of March 18, 1948 a fire broke out at the Caltex service station at the corner of Antipolo St. and Rizal Ave, 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 Sps Africa and Heirs of Ong, 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. - CFI and CA 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. - Police Dept report: At about 4p.m. March 18, 1948, while Leandro Flores was transferring gasoline from a tank truck, into the underground tank of the Caltex Gas Station located at corner of Rizal Ave and Antipolo St, in Manila, 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. But, the flames scattered due to the hose from which the gasoline was spouting. It burned the truck and the ff. accessorias and residences. - The Fire Dept report: Re their allegation that the premises were subleased for the installation of a cocacola and cigarette stand, the complainants furnished this Office a copy of a photo 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 accdg. to information gathered in the neighborhood contained cigarettes and matches, installed between the gasoline pumps and the underground tanks. ISSUE/S WON reports on the fire by the Manila Police and Fire Departments and by a certain Captain Tinio of the AFP are admissible. HELD NO - Petitioners maintain that the reports in themselves, i.e, without further testimonial evidence on their contents, fall within the scope of Sec35, 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 - Of the 3 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 EE 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 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 - 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. - Although such reports were not admissible, the court discussed and ruled that the doctrine of Res Ipsa Loquitur is applicable in this case contrary to what the

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CFI and CA ruled. It cited the case of Jones vs. Shell Petroleum Corporation, which has a similar set of facts, as basis or authority. - Re negligence, Court said: 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. So Court ruled that Caltex and Boquiren are liable to the petitioners. Disposition Decision appealed from is REVERSED and Caltex and Boquiren are held liable solidarily to appellants Africa. SALMON, DEXTER & CO. V. WIJANGCO G.R. No. L-21649 Villamor; 9 October 1924 (ice) FACTS -Salmon, Dexter, and Co. entered into a contract with Wijangco for the purchase and sale of a tractor and threshing machine upon the conditions specified in said contract. The price of the machineries sold is P12,400, payable by installments as follows: P400 at the signing of the contract sale, to wit, October 8, 1920; P4,000 upon the delivery of said machineries by the defendant to the plaintiff; another P4,000 on June 15, 1921, and, finally, another P4,000 on December 15, 1921. -The plaintiff prays for a sum of money plus legal interests. -Wijangco denies generally and specifically the facts alleged in the complaint. He alleged that the tractor and threshing machine, which is the subject-matter of the contract was sold by the plaintiff company to the defendant, does not meet the conditions specified and guaranteed in the aforesaid contract of sale. Lower court rendered judgment sentencing the Wijangco (defendant) to pay the plaintiff relying among other evidence to the certificate issued by the Director of the Bureau of Agriculture ISSUE WON the certificate of the Director of the Bureau of Agriculture as to the average crop of palay produced in

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the municipality of Magalang in the agricultural year should be admissible. 1920-1921 - July 27, 1988 evening, RADIO’s station in Bacolod City was razed by fire causing damage in the amount of P1,044,040.00. RADIO 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) 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. The insurance companies denied the claims by maintaining that the evidence showed that the fire was caused by members of CPP/NPA. Hence, the civil case. - RTC Makati: in favor of RADIO. PROVIDENT to pay P450,000.00 plus 12% legal interest from March 2, 1990 the date of the filing of the Complaint. DBP to pay P602,600.00 plus 12% legal interest from March 2, 1990. - CA: affirmed the decision, with the modification that the applicable interest rate reduced to 6% per annum. MFR denied. - DBP assails: factual finding of both RTC and CA that its evidence failed to support its allegation that the loss was caused by an excepted risk, (members of the CPP/NPA) RTC + testimony of witnesses Lt. Col. Torres and SPO3 Rochar, who were admittedly not present when the fire occurred, was 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 it and then lit it. After that, they went out shouting “Mabuhay ang NPA”. + persons whom they investigated and actually saw the burning of the station were not presented as witnesses + documentary evidence, which includes a letter released by the NPA merely mentions some dissatisfaction with the activities of some people in the media in Bacolod, do not satisfactorily prove that the author of the burning were members of the NPA.. CA

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+ 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 Magsilang claiming responsibility for the burning of DYHB + fire investigation report dated July 29, 1988 + testimonies of Lt. Col. Torres and SFO III Rochas ISSUES 1. WON 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 is deemed sufficient (Entry in Official Records) 2. WON the testimony of Lt. Col. Torres is admissible 3. WON the letter of 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 admissible (Admission & Confessions) 4. WON the excepted risk was not proven by DBP 5. WON 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 is an exception to the hearsay rule as part of res gestae (Weight and Sufficiency of Evidence) HELD 1. NO - The documentary evidence may be considered exceptions to the hearsay rule, being entries in official records, nevertheless, none of these documents categorically stated that the perpetrators were members of the CPP/NPA. > police blotter: “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,” > certification from the Bacolod Police station: “… some 20 or more armed men believed to be members of the New People’s Army NPA,” > fire investigation report: “(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 were the ones responsible …” - 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. 2. NO

HELD Yes. The statistics prepared by the Bureau of Agriculture is chiefly based on the quarterly reports of the municipal presidents made pursuant to section 2202 of the Administrative Code. The certificate issued by the Director of Agriculture is admissible in evidence as an official document issued by a public officer authorized by law. Wigmore, in his treatise on evidence, vol. 3, section 1636, speaking of exceptions to the rule as to the inadmissibility of hearsay evidence, among other things, says: 6. Certificates. Every officer has an implied duty or authority to prepare and deliver out to an applicant a certificate stating anything which has been done or observed by him or exists in his office by virtue of some authority or duty, and the certificate is admissible. DISPOSITION Affirmed DBP POOL OF ACCREDITED INSURANCE COMPANIES V RADIO MINDANAO NETWORK,INC G.R. No. 147039 AUSTRIA-MARTINEZ; January 27, 2006 (owen) NATURE Petition for certiorari under Rule 45 RoC seeking the review of the CA Decision affirming RTC Makati Decision reducing interest rate to 6% per annum FACTS - Radio Mindanao Network, Inc. (RADIO), who owns several broadcasting stations all over the country, filed a civil case against DBP Pool of Accredited Insurance Companies (DBP) and Provident Insurance Corporation (PROVIDENT) for recovery of insurance benefits. PROVIDENT covered RADIO’s transmitter equipment and generating set for P13,550,000.00 under a Fire Insurance Policy, while DBP covered RADIO’s transmitter, furniture, fixture and other transmitter facilities for P5,883,650.00 under a Fire Insurance Policy.

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- The only person who seems to be so sure that that the CPP-NPA had a hand in the burning of DYHB was Lt. Col. Torres. However, though his testimony is persuasive, it cannot be admit 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. 3. NO - Under Section 22, Rule 130 RoC. An admission is competent only when the declarant, or someone identified in legal interest with him, is a party to the action. 4. YES - 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. - Consequently, it is sufficient for RADIO to prove the fact of damage or loss. Once RADIO makes out a prima facie case in its favor, the duty or the burden of evidence shifts to DBP to controvert RADIO’S prima facie case. In this case, since DBP alleged an excepted risk, then the burden of evidence shifted to DBP 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 5. NO - 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. 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 crossexamination 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. - 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. - 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. - Admissibility of evidence should not be equated with its weight and sufficiency. 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.

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- 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-à-vis the other evidence on record. Disposition Petition is DISMISSED.

WALLEM MARITIME SERVICES V NLRC G.R. No. 108433 ROMERO; October 15, 1996 (monch) NATURE Petition for certiorari FACTS - 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. - On June 24, 1989, while the vessel was in Japan, he and a fellow Filipino crew member Gurimbao had an altercation with a cadet/apprentice officer of the same nationality as the captain of the vessel. The master entered the incident in the logbook. - As such, they were repatriated to the Philippines. Both then filed illegal dismissal complaints with the POEA. - According to Macatuno and Gurimbao, the incident started when Gurimbao was asked by an cadet/apprentice to shovel off dirty water (mixed with oil and dirt) and throw it overboard. Gurimbao didn’t want to at first, since such act was prohibited, but the cadet got mad and started shouting. Gurimbao thereafter complied. Gurimbao complained to Macatuno. The two confronted the cadet and said to him that he was a mere apprentice and has no right to order people. The cadet started shouting. Macatuno

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pushed him twice. Gurimbao mildy hit his arm. The cadet ran to the captain “who happened to witness the incident” from the cabin’s window. - The captain summoned them both and then told them that they were being terminated and would be disembarked at the next port. After disembarkation, they flew back to the Philippines. There, they were told that they would not be given their salaries and their repatriation expenses would not be reimbursed. - According to Wallem, it was not the Macatuno and Gurimbao’s first infraction. They apparently left during working hours before, as evidenced by the logbook. As such, they were warned. They were also to have been alleged to assault an officer and was given a sever warning. - The POEA officer ruled that the dismissal was without just and valid cause. He did not give weight to the certified true copy of the logbook because the alleged entries therein were only handpicked and copied from the official logbook. There is no way of verifying the truth of these entries. Also, no documentary evidence was submitted to support the alleged official logbook. Finally, the copy of the alleged official logbook was not properly authenticated. - NLRC affirmed. ISSUE/S 1. WON there was valid dismissal adoption of such contents which merely serve as prima facie evidence of the incident in question. - 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. What was offered in evidence was merely a typewritten collation of excerpts. - Under the Table of Offenses and Corresponding Administrative Penalties appended to the contract of employment between the parties, 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. However, the man they assaulted (Sason) was only an apprentice and cannot be considered a superior officer. - Moreover, the aforequoted entry in the logbook is so sketchy that, unsupported by other evidence, it leaves so many questions unanswered - 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 - Also, due process was not observed in this case. The fact that the captain witnessed the incident does not dispense the requirement of notice and hearing Disposition Petition denied.

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G.R. No. 169204 QUISIMBING; March 23, 2007 (Anton) NATURE An appeal from the decision dated May 19, 2005 of the CA and its Resolution dated August 4, 2005 denying reconsideration. FACTS - Adelaida Escobar and Lolita Escobar (petitioners) separately bought two parcels of land located in Barrio Tolentino, Tagaytay City on February 28, 1979 and were issued TCT Nos. (T-21294) T-13361 and (T-21295) T-13362, respectively, on the same date. - Eleven years later, on September 11, 1990, Clodualdo Luna filed a complaint before the RTC of Tagaytay City, seeking to nullify the two titles of the Escobars. Luna claimed that he had been in actual, public, adverse, continuous, and notorious physical possession of an unregistered parcel of land located in Barrio Tolentino, Tagaytay City since March 21, 1941, as shown in Tax Declaration No. GR-0190173, which was issued to him in 1985. - Sometime in 1990, when he engaged the services of a geodetic engineer to survey the same parcel of land to have his title confirmed under the provisions of Act No. 496, as amended by PD No. 1529, he alleged that he discovered that the land had been illegally and fraudulently titled in the names of the Escobars by the use of fictitious and simulated documents and court records. - The Escobars allegedly made it appear that the two titles originated from Original Certificate of Title (OCT) No. 5483, which however, did not exist in the records of the Registry of Deeds of the Province of Batangas per certification of Atty. Eva Cainza-Valenton, Acting Register of Deeds, issued on June 11, 1990. - Decree No. 3465, on which OCT No. 5483 appeared to have been issued, pertained to a parcel of land located in San Juan, Batangas, not to the subject properties located in Tagaytay City. Similarly, Survey Plan Psu24039, which supposedly technically described the land mentioned in OCT No. 5483, did not pertain to the subject properties but to a different parcel of land located in Urdaneta, Pangasinan, per letter of Privadi JG. Dalire, Chief of the Geodetic Surveys Division of the Lands Management

HELD 1. NO Reasoning - The ship captain’s 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 vessel’s head. Thus, in Haverton Shipping Ltd. v. NLRC 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 ruling in such case does not apply in the case at bar. In said case, there was an investigation before the seaman was dismissed. There facts in the logbook were supported by facts in the investigation. In the case at bar, because no investigation was made, the contents of the logbook have to be duly identified and authenticated lest an injustice result from a blind

ESCOBAR V LUNA

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Bureau, DENR. Luna further alleged that the Escobars acted with knowledge of the infirmity and defect of OCT No. 5483 as nonexistent and knew that he was in actual possession of the subject land in the concept of an owner for 50 years. - October 9, 1990: the Escobars filed a motion to dismiss. They alleged that the complaint was barred by prior judgment or by statute of limitations; that the complaint stated no cause of action. - February 1, 1991: Luna filed an amended complaint which the trial court admitted on February 5, 1991. However, on February 22, 1991, the trial court, upon reiteration by the Escobars of their motion, dismissed the amended complaint on the ground that it was insufficient in form and substance and that certain indispensable parties were not impleaded. - Luna filed a motion for reconsideration and a second amended complaint impleading as party defendants the Administrator of the Land Registration Authority, the Director of the Bureau of Lands, the National Treasurer, the Registry of Deeds and City Assessor of Tagaytay City. The trial court granted a subsequent MTD filed by the Escobars. - Luna filed an appeal to the CA, which rendered a decision on May 18, 1995 reversing the dismissal. The CA held that the trial court should have conducted a hearing on the motion to dismiss considering that Luna's complaint alleged that OCT No. 5483 (from which the TCTs of the Escobars were derived) was nonexistent. - The Escobars elevated the appellate court's decision to the Supreme Court, but the petition was denied in a Minute Resolution. The case was remanded to the Trial Court. - During trial, Luna died and was substituted by his heirs (respondents). They submitted the case on the basis of the documentary evidence, arguing that, allegedly, the CA had already ruled on the first appeal that the Escobars' titles were void. - RTC rejected respondents' argument that the appellate court's ruling in the first appeal constituted the law of the case, and proceeded to find the Escobars as purchasers in good faith and for value who were accordingly entitled to the benefits of the principle of indefeasibility of title. - Trial court further ruled that respondents failed to prove their case for cancellation of TCTs since the documentary evidence they submitted, not being supported by testimonial evidence, were hearsay. - On appeal the CA reversed the RTC. ISSUE(S) 1. What the law on the case is. 2. WON the respondents' evidence admissible to prove the nullity of the TCTs in question. (YES) 3. WON being purchasers in good faith, the Escobars are entitled to protection from suits to annul their titles. (NO) HELD 1. Ratio Under the principle of the law of the case, whatever is irrevocably established as the controlling legal rule or decision between the same parties in the same case continues to be the law of the case, so long as the facts on which the decision was predicated continues. Reasoning - Reasons of public policy, judicial orderliness and economy require such stability in the final judgments of courts or tribunals of competent jurisdiction. - The law of the case is the opinion delivered on a former appeal. It applies to an established rule that when an appellate court passes on a question and remands the case to the lower court for further proceedings, the question there settled becomes the law of the case upon subsequent appeal. As a rule, a decision on a prior appeal of the same case is held to be the law of the case whether that question is right or wrong, the remedy of the party deeming himself aggrieved being to seek a rehearing. - In this instance, the records show that the Court of Appeals in CA-G.R. CV No. 37139, the first appeal, resolved only the issue of whether the Order dated June 28, 1991 dismissing the second amended complaint was valid or not. The appellate court did not resolve any issue bearing on the merits of the cancellation case. As regards the merits of the case, therefore, there is no law of the case to speak of. The appellate court in CA-G.R. CV No. 37139 merely ordered the trial court to determine the intrinsic validity of the titles by probing into the technical data of OCT No. 5483, Decree No. 3465, and Survey Plan Psu-24039 among others.

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2. YES Ratio Respondents' evidence are competent evidence, having been issued by government offices, certified by authorized personnel who were clothed with authority and duty to issue such certifications. Reasoning - The certification, without testimony of the person giving the certification, is sufficient and competent evidence which is an exception to the hearsay rule as provided in Section 44, Rule 130 of the Revised Rules of Court. Section 44 should be read in conjunction with Section 28, Rule 132 of the same Rules which allows the admission of the said document. Sec. 28. Proof of lack of record.—a written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry. - The certification dated June 11, 1990 issued by Atty. Cainza-Valenton, who was duly authorized to issue the certification, stating that OCT No. 5483 was not existing in the files of the Registry of Deeds of the Province of Batangas and which confirmed that OCT No. 5483 was fictitious, making the titles derived from it spurious, is sufficient evidence for the stated purpose. The Register of Deeds of the Province of Batangas is the repository of all records regarding OCTs issued in that province, and the certification is therefore competent and admissible evidence to prove that the titles of the Escobars derived from it are from a fictitious source. The same holds true for:

a)

The certification of Mr. Felino M. Cortez, Chief of the Ordinary and Cadastral Decree Division, Land Registration Authority, stating that per CLR Record No. 3995, Decree No. 3465 was issued on February 23, 1909; and a copy of Decree No. 3465 which states that it was issued by the Court of First Instance of Batangas in Case No. 29, G.L.R.O. Record No. 2379 and that the subject matter of that Case No. 29 was the land situated in San Juan, Batangas - not the land situated in Barrio Tolentino, Talisay, Batangas; The reply-letter of Mr. Privadi JG. Dalire addressed to Engr. Ruperto T. del Carmen, stating that plan Psu-24039 was a survey of property

b)

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located at Pinmaludpod, Urdaneta, Pangasinan, which is a long way from the Barrio Tolentino, Talisay, Batangas property; NATURE Petition for Review on Certiorari seeking to set aside the CA Decision 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; and Resolution denying MR. FACTS -Petitioner Barcelon, Roxas Securities Inc. (now known as UBP Securities, Inc.) is a corporation engaged in the trading of securities. -14 April 1988: petitioner filed its Annual ITR for taxable year 1987. After an audit investigation conducted by the BIR, respondent Commissioner of Internal Revenue 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 of P1,219,093,93 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-1-87-91-000649 dated 1 Feb 1991, which, respondent alleges, was sent to petitioner through registered mail on 6 Feb 1991. However, petitioner denies receiving the formal assessment notice. -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. -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, selfserving, and therefore insufficient to prove that the

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assessment notice was mailed and duly received by the petitioner. -25 July 2000: Respondent’s MR was denied by the CTA. Thereafter, respondent appealed to the CA. -Reversing the CTA decision, the CA 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. Petitioner filed MR but the same was denied. Hence, this Petition for Review on Certiorari. ISSUE WON respondent’s right to assess petitioner’s alleged deficiency income tax is barred by prescription HELD YES. Evidence offered by the respondent fails to convince SC that Formal Assessment Notice No. FAN-187-91-000649 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. -Under Sec. 203 of the NIRC, respondent had 3years from the last day for the filing of the return to send an assessment notice to petitioner. 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 (Collector of Internal Revenue v. Bautista). 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 ITR for taxable year 1987 on 14 April 1988. The last day for filing by petitioner of its return was on 15 April 1988, 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

c)

The certification dated August 6, 1993 issued by Mr. Jose C. Mariano, Chief of the Records Management Division, Lands Management Bureau, DENR, certifying to the fact that his office has no available record of the alleged plan Psu-24039, which shows that Psu-24039 does not exist and it cannot serve as basis for the two titles; and The certification dated July 29, 1993 issued by Mr. Felino M. Cortez, certifying to the true and correct reproduction of page 140 of Survey Record Book No. 3, that there appears to be no entry corresponding to plan Psu-24039 indicating that said plan does not appear to have been the subject of an application for original registration under Act No. 496 as amended by P.D. No. 1529, which shows that the titles are spurious, having had spurious sources.

d)

- Most significantly, these documents, which constitute certifications from government officials who are responsible for safeguarding the TCTs and OCTs in their possession because of their official capacity, have not been controverted as to their existence and due execution. Their existence was also never denied under oath. 3. Even if petitioners were innocent purchasers for value and in good faith, no right passed to a transferee from a vendor who did not have any right in the first place. Void ab initio land titles issued cannot ripen into private ownership. A spring cannot rise higher than its source. DISPOSITION Wherefore, the instant petition is denied for lack of merit. The Decision dated May 19, 2005 and Resolution dated August 4, 2005 of the Court of Appeals are affirmed. BARCELON, ROXAS SECURITIES, INC. V CIR G.R. No. 157064 CHICO-NAZARIO; Aug 7, 2006 (marge)

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the deficiency tax assessment only on 17 March 1992 when it was served with the Warrant of Distraint and Levy. -Protector’s Services, Inc. v. CA: when a mail matter is sent by registered mail, there exists a presumption, set forth under Rule 131.3(v) 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. -Here, no substantial evidence was ever presented to prove that the assessment notice No. FAN-1-87-91000649 or other supposed notices subsequent thereto were in fact issued or sent to the taxpayer. CIR only submitted the BIR record book which allegedly contains the list of taxpayer’s names, the reference number, the year, the nature of tax, the city/municipality and the amount. 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. 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. Any of these independent evidence could have easily been obtained. Yet respondent failed to present such evidence. -CIR offered the entry in the BIR record book and the testimony of its record custodian as entries in official records in accordance with Rule 130.44 of the Rules of Court. The foregoing rule on evidence, however, must be read in accordance with this Court’s pronouncement in Africa v. Caltex (Phil.), Inc., 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 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. -Nava v. Commissioner of Internal Revenue: “While we have held that an assessment is made when sent within the prescribed period, even if received by the taxpayer after its expiration, 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 taxpayer’s 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.” Disposition Petition granted. CA decision reversed and set aside . CTA decision reinstated. Testimony in Former Deposition or Proceeding TAN V CA May 16, 1967; SANCHEZ, J. (lora) FACTS

A2010
- This is a suit aimed at establishing a children-tofather, illegitimate relationship between petitioners and the principal respondent Francisco Tan, and to compel the latter to support petitioners. - Petitioners, thru their mother Celestina Daldo as guardian ad litem, sued respondent Tan in the CFI of Manila for acknowledgment and support. 1䷰h ‫ﱮ‬/cite> - 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. - She subscribed before the clerk of the CFI of Manila to an affidavit categorically stating that respondent Francisco Tan, "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". - CFI of Manila dismissed the case with prejudice. - 1 year and 8 months after the civil case was dismissed — petitioners, thru their maternal grandfather Servillano Daldo as guardian ad litem, commenced an action before the Juvenile & Domestic Relations Court for acknowledgment and support, involving the same parties, cause of action and subject matter. - The JDRC rendered judgment declaring that "the present case is res judicata by reason of the dismissal with prejudice of Civil Case 26909 of the CFI of Manila; and that, even on the merits, plaintiffs have not made out their case with sufficient evidence," and dismissed the complaint. - Petitioners moved to reconsider. - JDRC reconsidered, declared the minors Carmelita and Rodolfo Tan to be the illegitimate children of the defendant Francisco Tan alias Tan Uh Bak and Tang Seng Ka; ordered the defendant to support said minors and to help them defray their matriculation expenses; to reimburse Servillano Daldo his expenses in supporting plaintiff minors during the pendency of the case and 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.

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- CA in turn reversed the last-named judgment and dismissed the complaint. - Petitioners appealed to Court in forma pauperis. ISSUES 1. WON Exhibits H and I, testimony of petitioners' witnesses in the former case are admissible. 2. WON petitioners had reasonably made out a case against respondent. HELD 1. NO. Rule 130, 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 crossexamine him, may be given in evidence. - Concededly, the witnesses at the former trial were subpoenaed by the JDRC a number of times. These witnesses did not appear to testify. 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 CA, 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. - Here, the witnesses in question were available. Only, they refused to testify. Certainly, they do not come within the legal purview of those unable to testify. - Besides petitioners could have urged the court to have said witnesses arrested, punished for contempt. Petitioners failed to avail of these remedies, went ahead and submitted their case. - The Court noted 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. NO. 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 CA rule out the probative value of petitioners' evidence and found for respondent. - CA: the evidence for the plaintiffs-appellees fall short of the requirement of clear strong and convincing evidence. 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 are not admissible proofs of filiation. The birth certificate is likewise inadmissible against the defendant because the alleged illegitimate father did not sign it under oath. It should be noted that said baptismal certificates are also useless to prove the dates of birth of the appelleesminors, 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.

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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. - Section 2, Rule 45 of the Rules of Court, employs the commanding language that "only 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. The Court is not to alter said facts — they bind it, or to review the questions of fact Disposition Judgment of CA Affirmed. MANLICLIC VS CALAUNAN G.R. No. 150157 Chico-Nazario; January 25, 2007 (mel) NATURE Petition for review assailing the decision of CA (affirming TC) FACTS Calaunan, together with Marcelo Mendoza, was on his way to Manila from Pangasinan on board his ownertype 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. Calaunan 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. 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. Subsequently, respondent filed a complaint for damages against petitioners Manliclic and PRBLI before the RTC of Dagupan City. The criminal

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case was tried ahead of the civil case. Among those who testified in the criminal case were respondent Calaunan, Marcelo Mendoza and Fernando Ramos. When the civil case was heard, counsel for respondent prayed that the transcripts of stenographic notes (TSNs) of 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 husband’s hometown to look for him but she was informed that he did not go there. The trial court subpoenaed the Clerk of Court of Branch 8, RTC, Malolos, Bulacan, the court where the criminal case was tried, to bring the TSNs of the testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos 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. 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 TSN of the testimony of Donato Ganiban, investigator of the PRBLI, in the criminal case 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 TSNs of the testimonies of Donato Ganiban, Oscar Buan and petitioner Manliclic in the criminal case. The trial court rendered its decision in favor of respondent Calaunan and against petitioners Manliclic and PRBLI. CA affirmed. ISSUE WON the admission in evidence of the TSN’s and other documents presented in the criminal case is valid HELD YES RATIO Petitioners argue that the TSNs containing the testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos 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 130 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. 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 the criminal case, had no opportunity to cross-examine the three witnesses in said case. The criminal case was filed exclusively against petitioner Manliclic, petitioner PRBLI’s 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. REASONING 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

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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. 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. Moreover, 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 plaintiff’s 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. The Court does not subscribe to petitioner PRBLI’s 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. 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

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admitted. Accordingly, they shall be given the same weight as that to which the testimony may be entitled. DISPOSITION petition for review denied. CA decision affirmed Opinion Evidence CHINA BANKING CORP., INC VS CA (HEIRS OF AVELINA VDA. DE PIÑERO AND EMMANUEL PIÑERO) AUSTRIA-MARTINEZ; July 24, 2007 [maem] NATURE Petition for Review on Certiorari under Rule 45 FACTS - Deceased Avelina Vda. de Piñero (Avelina), respondents’ predecessor-in-interest, was the registered owner of two adjoining parcels of land with improvements, consisting of 510 sq m situated in Mandaluyong City. - [August 27, 1991] Alfonso Kipte obtained a P1,200,000.00 loan from Avelina, secured by a promissory note and a real estate mortgage signed by Avelina over her properties. The mortgage was annotated on the titles. The loan was also secured by a surety agreement signed by Kipte as principal and by Avelina as surety. Due to Kipte’s failure to pay his indebtedness, the mortgaged properties were foreclosed and auction sale was scheduled on August 17, 1992. - Avelina and respondent Emmanuel Piñero sued China Banking Corporation, Inc., Notary Public Ernesto Bonifacio, Alfonso Kipte, Marivic Kipte and the Register of Deeds of Rizal for Annulment of Real Estate Mortgage, Foreclosure of Mortgage, Notice of Auction Sale and Damages with Prayer for Issuance of a Temporary Restraining Order and/or Preliminary Injunction with the RTC. Avelina denies having signed the documents, and alleged that: • Sometime in September 1992, Avelina was surprised to receive a foreclosure notice from the notary public, stating that her properties would be sold at public auction by virtue of a petition for extrajudicial foreclosure filed by petitioner; • After inquiring from petitioner, she learned that she allegedly executed a real estate mortgage and a surety agreement to secure a loan of one Alfredo Kipte, whom she does not know; • The foreclosure is void since she never voluntarily executed the mortgage or surety agreement, never appeared before the notary public, never received any proceeds from the loan, and was never a business associate of Kipte; • Sometime in 1990, Emmanuel’s common-law wife, Ludivina Rinnoces, asked Avelina to sign some documents allegedly pertaining to a loan from one Cerila de Leon; signed these documents without reading the same, as she is blind, and without knowing the contents thereof; • In 1991, Ludivina again asked her to sign some documents, allegedly to pay the account to Cerila; again, Avelina was not able to read or know the contents of these documents; • The alleged mortgage was annotated on TCT No. 64018, but not on TCT No. 59833; • TCT No. 64018 also contained a cancellation of a mortgage in favor of Jose Macaraig and Cerila de Leon, both of whom she does not know. - China Banking contends that: • Upon execution of the documents, Avelina was furnished with copies thereof; • Avelina freely and voluntarily signed the documents; • At the time of the execution of the documents, though physically weak, she was mentally sound and in complete possession of her faculties, and she understood the nature of the transactions;

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• Avelina personally appeared before the notary public. - Avelina died and was substituted by her heirs. RTC: Complaint and Counterclaim Dismissed. - CA: Reversed. • Deceased Avelina was an old widow, 80 years of age and blind even before she purportedly signed the Real Estate Mortgage and Surety Agreement on August 26, 1991 and August 29, 1991, respectively; • That Rebecca Piñero-Galang, daughter of Avelina, testified that in 1985, her mother became totally blind, was not physically fit, and suffered an eye disease or glaucoma; • Avelina herself testified that she was only persuaded to sign the questioned documents as witness; that Ludivina guided her when she signed the foregoing documents; that she did not receive from Kipte, the principal borrower, any amount as consideration of the mortgage attests to her credible theory that she was only a witness to the execution of the documents; • That her deportment in court and the fact that she had to be guided to take the witness stand constituted the “strongest proof of blindness”; • That the notary public, Atty. Restituto Fano, who claimed to have notarized the Surety Agreement, said that he remembered Avelina to be an old lady, with white complexion and white hair, and who had to be assisted and accompanied to his table to be able to sign the questioned agreements; he noticed that “she could hardly see”; • That it was unusual for Avelina, a woman of old age, to be so willing to act as surety to a promissory note of Kipte, a complete stranger, which involved the large amount of P1,200,000.00. ISSUE

• Avelina

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I: WON Avelina signed the real estate mortgage and surety agreement knowingly and voluntarily, with full knowledge of its contents? HELD China Banking: Avelina’s signature was admitted as authentic. As notarial documents, they are prima facie regular and duly executed; Avelina was duly informed of the nature and purpose of these agreements by petitioner’s branch manager and the notary public before she affixed her signature; and respondents did not even submit a medical certificate attesting to the supposed blindness of Avelina or made an ophthalmologist take the witness stand. Notarization The admission of the signature’s authenticity does not by itself prove petitioner’s case. The issue is whether Avelina gave her consent to be bound as surety, not whether she affixed her signature. Mayor v Belen: Notarization per se is not a guarantee of the validity of the contents of a document. Generally a notarized document is presumed regular, but such is rebuttable. When Expert Opinion Necessary Reyes v Sisters of Mary Hospital; Ramos v CA: The rule requiring the opinion of expert witnesses applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. Attesting to Blindness does not need Expert Opinion Thus, to prove whether one is blind, it is not necessary to submit a medical certificate attesting to the blindness or to require an expert witness, such as an ophthalmologist, to testify to such fact, since the fact of blindness can be determined through common knowledge and by anyone with sufficient familiarity of such fact. Avelina during trial categorically testified and attested to her own blindness, a fact which even the trial court noted, viz: qYou are an educated person Mrs. Witness, is it not true that it is basic for a person before signing a document to read it first?

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Rebecca Piñero-Galang. Even the notary before whom she supposedly appeared testified to the fact that she was indeed blind and that she was not made to understand the documents. - Clearly, Avelina was in fact blind, that she did not know the contents of the documents she signed, and more importantly, that she did not know the capacity in which she was signing these documents. DISPOSITION CA Affirmed. Presumptions BORJE V SANDIGANBAYAN G.R. 55436 GUERRERO; November 15, 1983 (aida) FACTS - Borje (as the former Provincial Plant Industry Officer of the Bureau of Plant and Industry in San Fernando, La Union) was charged with falsification of a public document. He was accused of falsifying the timebook and payroll of his office for the periods covering January to March 1977, the daily time record of Ducusin and a certification for the amount of P225. - According to testimonial evidence, Ducusin was employed as Plant Pest Officer with BPI San Fernando from February 2, 1975 up to his resignation on April 30, 1978. From February 2, 1975 up to December 1976, he was detailed as production technician in the Gulayan Program of the BPI and the Bureau of Agricultural Extension receiving incentive pay from the National Food and Agricultural Council during said period. In 1977, however, Ducusin was no longer entitled to the NFAC incentive pay as he was detailed to the Surveillance and Early Warning Services (SEWS) Team of the Bureau of Plant Industry from January 1977 up to April 30, 1978. - Ducusin was informed by Castro that he was entitled to receive NFAC incentive pay because his name was included in the special order enumerating those included in the program. Before one can receive the incentive pay, a person must prepare his daily time

ATTY. DE GUZMAN: Objection. ATTY. CASIDING: I am asking the witness if she knows? COURT: Yes, but precisely the witness is blind. Also Ludivina’s testimony established that: • Avelina was already blind when she was manipulated into signing the questioned documents by her daughter-in-law, who did not explain to her the contents and true nature of the documents beforehand; • Her hand had to be guided by Ludivina during the act of signing; • Avelina did not know that the Surety Agreement and Real Estate Mortgage she signed were to secure the loan Kipte contracted from the petitioner; • She was made to understand that she was to sign only as witness; • Kipte was a total stranger to her, and, by this reason, it is implausible that she agreed to be his surety. In fact, it was only after Avelina received the notices of foreclosure that she learned that there was a mortgage document among the papers she signed. - Avelina's blindness was further confirmed by the testimonies of her children, respondents Emmanuel M. Piñero and

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record and a certification that he was indeed detailed in the said program. Ducusin went to the BPI’s accounting division where he discovered that the payroll for the periods of January, February and March 1977 all bore his name and signature even if he had never done so. - Ducusin referred the matter to accused Borje who confessed that he (Borje) had taken Ducusin’s incentive pay and repeatedly offered him P225 to cover the incentive pay which Ducusin did not accept. - Ducusin reported the matter to the BPI Regional Director’s attention and later to the BPI president and director. Ducusin later resigned, saying he had lost faith in the way the matter was being handled. - Borje contends that Ducusin was paid his incentive pay and he confirms substantially the official procedure in the preparation of the payroll and subsequent payment of the incentive pay to the production technicians as described by witness Lorenzo, disbursing officer and cashier of BPI. He vigorously denies having received the payroll and the corresponding checks from witness Lorenzo as his participation in the preparation of the said payroll ended with his signing thereof after which the payroll goes to the disbursing officer for the preparation and issuance of the checks to the payees. - Borje claims that he had nothing to do with the falsification charges filed against Ducusin but alleges that Ducusin’s falsification charges filed against him was the latter’s way of getting back at him. He also alleged that Ducusin performed dual work – first with the Gulayan program and second with the SEWS team as Plant Pest Control Officer and that his resignation was a way for him to avoid facing the charges in connection with this dual work performed. - Borje pleaded not guilty but the Sandigabayan declared him otherwise. ISSUE WON the Sandigabyan erred in declaring Borje guilty of falsification of public documents HELD YES, the prosecution was unable to satisfactorily overcome the presumption of innocence accorded to accused Borje. Ratio The constitutional presumption of innocence in favor of the accused has not been satisfactorily overcome by the prosecution evidence in this case where the conviction of Borje for falsification of public documents was based principally on the mere assumption that as possessor of the falsified documents, he is presumed to be the author of the falsification. Reasoning - There is no direct proof showing that Borje, who had many subordinate employees and personnel under him engaged in agricultural field work and assigned in the rural areas, had personally and actually falsified the public documents in question. - In the face of the documents presented (timebook, payroll and daily time record), the liability of Borje as head of the office who had signed the certification and verificationmust be limited to the contents of said verification and certification for which he does not necessarily incur criminal responsibility if the entries, data or statements certified and verified turn out not to be true. In such a scenario, the employee or personnel making the entries, data or statements as to his services and attendance is solely and separately responsible. - The Sandiganbayan convicted Borje on the basis of the testimony of the cashier Lorenzo who testified that she delivered the payroll and checks to Borje, relying further on the presumption that as possessor of the document, the accused is presumed to have falsified it. But in reviewing the testimony of Lorenzo, the Court found that she said that she delivered the payroll and the checks to Ducusin, even identifying the genuine signature of Ducusin on the payroll. - Lorenzo’s claim that she was forced to testify for Borje on pain of being implicated in the case does not hold water. Lorenzo’s position as cashier is not subordinate to Borje’s position so she cannot be easily said to be intimidated by him. - The Court rejects the Sandiganbayan’s reliance on the presumption that as possessor of the document, the accused is presumed to be the author of the falsification on the following grounds: - The Lorenzo testimony is deemed to be questionable. - Borje has denied vigorously the testimony of Lorenzo that he received the payroll and the checks from her. He said that his participation in the preparation of the payroll ended with his act of affixing his signature. - Exhibit A (payroll and timebook) appears to be also signed by 10 other production technicians listed in the payroll, besides

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Ducusin. It is initialled by 3 personnel in the Accounting Services Unit and further signed by the Regional Accountant and for the Regional Director. All of these persons were at one time or another in possession of the document, all of them had the same opportunity to commit the falsification along with the messengers who presumably delivered the documents. Other employees may have handled the document also or purposes of typing, funding, initialling, verification, certification, accounting, recording, drawing of the check and finally, issuing of the check. - Only photocopies of the alleged documents were presented in court and the Sandiganbayan stated that the issue of bringing out the original would have been relevant if he issue confronting the Court been one of alteration or superimposition of signatures or words or figures. - With regard to the defense’s portrayal of the accused as an exemplary public servant, the court held that an accused is not entitled to an acquittal simply because of his previous good moral character and exemplary conduct if the court believes he is guilty beyond reasonable doubt of the crime charged. Disposition Judgment reversed. CAPILI v CARDANA G.R. No. 157906 QUISUMBING; Nov 2, 2006 (kooky) NATURE: Petition for review FACTS: - On Feb 1, 1993, Jasmin Cardaña was walking along the perimeter fence of San Roque Elementary School when a branch of a caimito tree located within the school premises fell on her, causing her instantaneous death. Her parents filed a case for damages before RTC of Palo, Leyte against Joaquinita Capili, the school principal. - The Cardañas alleged in their complaint that even as early as Dec 15, 1992, a resident of the barangay, Eufronio Lerios, reported on the possible danger the tree posed to passersby. Lerios even pointed to Capili the tree that stood near the principal’s office. The

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Cardañas averred that Capili’s gross negligence and lack of foresight caused the death of their daughter. - Capili denied the accusation and said that at that time Lerios had only offered to buy the tree. She also denied knowing that the tree was dead and rotting. To prove her point, she presented witnesses who attested that she had brought up the offer of Lerios to the other teachers during a meeting on Dec 15, 1992 and assigned Remedios Palaña to negotiate the sale. - TC dismissed the complaint for failure of Cardañas to establish negligence on the part of Capili. It gave credence to the claim of Caopili that she had no knowledge that the tree was already dead and rotting and that Lerios merely informed her that he was going to buy the tree for firewood. It ruled that petitioner exercised the degree of care and vigilance which the circumstances require and that there was an absence of evidence that would require her to use a higher standard of care more than that required by the attendant circumstances. - CA reversed, finding Capili liable for Jasmin’s death. It ruled that petitioner should have known of the condition of the tree by its mere sighting and that no matter how hectic her schedule was, she should have had the tree removed and not merely delegated the task to Palaña. The appellate court ruled that the dead caimito tree was a nuisance that should have been removed soon after petitioner had chanced upon it. Capili’s MR was denied. Thus, this appeal. - Petitioner’s Arguments: she was not negligent about the disposal of the tree since she had assigned her next-in-rank, Palaña, to see to its disposal; that despite her physical inspection of the school grounds, she did not observe any indication that the tree was already rotten nor did any of her 15 teachers inform her that the tree was already rotten; and that moral damages should not be granted against her since there was no fraud nor bad faith on her part. She contends she was unaware of the state of the dead and rotting tree because Lerios merely offered to buy the tree and did not inform her of its condition. Neither did any of her teachers inform her that the tree was an imminent danger to anyone. She argues that she could not see the immediate danger posed by the tree by its mere sighting even as she and the other teachers conducted ground inspections. She further argues that, even if she should have been aware of the danger, she exercised her duty by assigning the disposition of the tree to another teacher. - Respondents’ comment: they insist that Capili knew that the tree was dead and rotting, yet, she did not exercise reasonable care and caution which an ordinary prudent person would have done in the same situation. ISSUE: WON Capili was negligent and therefore liable for the death of Jasmin Cardaña HELD: YES. The doctrine of res ipsa loquitur applies. Ratio Where (1) the accident was of such character as to warrant an inference that it would not have happened except for the defendant’s negligence; (2) the accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of; and (3) the accident must not have been due to any voluntary action or contribution on the part of the person injured, the doctrine applies. Ratio The procedural effect of the doctrine of res ipsa loquitur is that petitioner’s negligence is presumed once respondents established the requisites for the doctrine to apply. Once respondents made out a prima facie case of all requisites, the burden shifts to petitioner to explain. The presumption or inference may be rebutted or overcome by other evidence and, under appropriate circumstances a disputable presumption, such as that of due care or innocence, may outweigh the inference. - A negligent act is an inadvertent act; it may be merely carelessly done from a lack of ordinary prudence and may be one which creates a situation involving an unreasonable risk to another because of the expectable action of the other, a third person, an animal, or a force of nature. A negligent act is one from which an ordinary prudent person in the actor’s position, in the same or similar circumstances, would foresee such an appreciable risk of harm to others as to cause him not to do the act or to do it in a more careful manner. -- In every tort case filed under Art 2176 CC, the plaintiff has to prove by a preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some other person for whose act he must respond; and (3) the connection of cause and effect between the fault or negligence and the damages incurred.

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- The fact, however, that respondents’ daughter, Jasmin, died as a result of the dead and rotting tree within the school’s premises shows that the tree was indeed an obvious danger to anyone passing by and calls for application of the principle of res ipsa loquitur. - The effect of the doctrine of res ipsa loquitur is to warrant a presumption or inference that the mere falling of the branch of the dead and rotting tree which caused the death of respondents’ daughter was a result of petitioner’s negligence, being in charge of the school. - D.M. Consunji, Inc. v. Court of Appeals: As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. - While negligence is not ordinarily inferred or presumed, and while the mere happening of an accident or injury will not generally give rise to an inference or presumption that it was due to negligence on defendant’s part, under the doctrine of res ipsa loquitur, which means, literally, the thing or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks for itself, the facts or circumstances accompanying an injury may be such as to raise a presumption, or at least permit an inference of negligence on the part of the defendant, or some other person who is charged with negligence. x x x where it is shown that the thing or instrumentality which caused the injury complained of was under the control or management of the defendant, and that the occurrence resulting in the injury was such as in the ordinary course of things would not happen if those who had its control or management used proper care, there is sufficient evidence, or, as sometimes stated, reasonable evidence, in the absence of explanation by the defendant, that the injury arose from or was caused by the defendant’s want of care. - Petitioner’s explanation as to why she failed to have the tree removed immediately is not sufficient to exculpate her. As school principal, petitioner is expected to oversee the safety of the school’s premises. The fact that she failed to see the immediate danger posed by the dead and rotting tree shows she failed to exercise the responsibility demanded by her position. Moreover, even if petitioner had assigned disposal of the tree to another teacher, she exercises supervision over her assignee. The record shows that more than a month had lapsed from the time petitioner

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gave instruction to her assistant Palaña to the time the incident occurred. Clearly, she failed to check seasonably if the danger posed by the rotting tree had been removed. Disposition Petition denied. Laying the Predicate PEOPLE V. MOLO G.R. No. L-44680 Per Curiam; 11 January 1979 (ice) Nature Automatic Review Facts Molo was accused of Murder. He allegedly attacked and assaulter Gapisa in Romblon with a bolo. -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 buri walling surrounded by fruit bearing banana plants. Simeona, who had not yet fallen asleep, heard an indistinct sound of murmur and gnashing of teeth. She saw accused Dominador Molo by peeping in a hole. 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. 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. 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 in 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". Venancio was then rushed to the hospital and arrived there at about 1:50 a.m. He expired a few minutes after. -Testimonies were presented from (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 accused-appellant and was able to talk with him before he succumbed to several bolo wounds; (3) Roman Mangaring, a neighbor of Alejandro; and (4) Dr. Victorio Benedicto, who performed the autopsy and accomplished the Autopsy Report. 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. Trial Court 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 ante-mortem 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. Issues (The court tried to answer each allegations of Molo) WON there is no proof of motive on appellant's part. Motive need not be shown where there is positive Identification. Even in the absence of proof of motive, the conviction of accused- appellant 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).

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WON Molo’s Identity as assailant was not established beyond reasonable doubt. The alleged inconsistent 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. Moreover, 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. The discordance in their testimonies on collateral matters heightens their credibility and shows that their testimonies were not coached or rehearsed. Far from being evidence of falsehood, they could justifiably be regarded as a demonstration of good faith. On the alleged inconsistent averments regarding the presence of light. 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. With regard to alleged incredible assertions, i.e. that it was very unusual that she remained silent while witnessing the attack on her husband. The transcripts showan answer to the misgivings by showing that she was scared of being boloed as well which the court finds reasonable. With regard to the assertion that Simeona only pointed to the accused as the killer because he was a hated criminal in the locality No. There was certainty in the identification of Molo. WON Simeona's account is contrary to physical facts (i.e how Molo stabbed her husband) No it is not. 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. WON Simeona could have been able to recognize Molo (given that he was at the foot of the stairs and there is a banana plant obstructing the moonlight) Yes. Simeona testified that the banana plants did not obstruct the light cast by the moon and the defense did not disprove this fact. Indeed, Simeona had no difficulty

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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. WON the dying declarations should not be accorded credence because the victim could not have recognized his assailant, since as testified by Simeona he was asleep when attacked No, 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. The statements of Venancio Identifying Dominador Molo as his assailant to Alejandro, his son, and Roman, his neighbor are dying declarations. 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, which, in fact, supervened barely 41/2 hours after he was boloed. Disposition Affirmed JUAN YSMAEL & CO., INC., plaintiff-appellant VS NAGEEB T. HASHIM and AFIFE ABDO CHEYBAN GORAYEB, defendants. (AFIFE ABDO CHEYBAN GORAYEB, appellant) GR No. 26247 OSTRAND; March 18, 1927 (eva) FACTS - The complaint in the present case sets forth two causes of action: 1) plaintiff alleges that the defendant Nageeb T. Hashim on Sept.21, 1916 executed a chattel mortgage in favor of said plaintiff for the sum of P13,160.87, with interest at 8% p.a., the mortgage falling due on Sept.21, 1917; that defendant failed to pay and so the chattel mortgage was foreclosed and the mortgaged property sold by the sheriff on Jan.15, 1921; that a balance of P11,060.87 was left after applying the proceeds from the sale, which, with the corresponding interest at 8% from Sept.21, 1916 to Jan.9, 1925, now amounts to the sum of P19,134.32 2) plaintiff alleges that the defendant Hashim has been indebted in the sum of P14,646.47 to the Hashim Commercial & Trading Company, Ltd., a limited copartnership, and that, for good and valuable consideration, the said co-partnership assigned the amount due it on said indebtedness 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 demanded payment from the defendants and now asks judgment against them. The plaintiff also prayed for a writ of attachment of the property of the defendants, which prayer was granted. - Hashim admits all of the allegations of the complaint and consents to the rendition of the judgment in conformity therewith. The defendant Afife Abdo Cheyban denies all other allegations contained 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 a civil case. She also alleges that she has suffered damages in the sum of P20,000. - CFI rendered judgment in favor of the plaintiff for the full amount demanded under the first cause of action, but dismissed 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. ISSUES 1. WON the court erred in dismissing the second cause of action. 2. WON the court erred in rendering judgment upon the first cause of action in favor of the plaintiff. 3. WON the trial court erred in prohibiting Cheyban from inquiring into the details of the account set forth in Exhibit 3. 4. WON 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. HELD 1. NO. - Ysmael assigns as error the finding of the trial court 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 it, and that the court likewise erred in dismissing the second

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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., the last three paragraphs of which reads as follows: “...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; ...that Mr. A. T. Hashim 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; ...Mr. A. T. Hashim be and hereby is authorized in an irrevocable manner to execute, acknowledge, and deliver all such documents and instruments 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 the same stockholders, together with Juan Ysmael & Co., Inc., also a stockholder, adopted another resolution which practically revoked the resolution of October 3, 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. Upon the facts shown by the record, Juan Ysmael & Co., Inc. might, perhaps, have compelled the Hashim Commercial & Trading Co. to execute an assignment of the credit in controversy, but 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 credit. 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. 2. NO, but amount modified. 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 preceding the same, it is obvious that the case is "fraudulent and that even if the

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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 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 of 8%, 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 be considered as merged therein. 3. YES. 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 CFI 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, we 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. 4. NO. 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. DISPOSITIVE 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% 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. Reference to Memorandum FIGUERAS VS. SERRANO G.R. No. 28208 September 3, 1928, J. ROMUALDEZ (SJ) NATURE This is an action to collect the balance of professional fees, for medical services amounting to P52,229, with P7,310 interest, plus P5,000 damages, and the costs of the action. FACTS According to the complaint of Dr. Gregorio Figueras, the services for which compensation is here claimed consist in medical attendance during the years 1919, 1920, and 1921, on Primitiva Serrano as well as on her father Leandro Serrano, for which purpose the plaintiff, who at that time lived in Vigan, had to make many trips to the town of Cabugao, 27 kilometers distant from where said patients lived. Leandro Serrano is now dead, and the complaint here is directed against his estate, represented by the defendant administrator. It is also alleged therein that Leandro Serrano promised to pay for plaintiff's trip to the town of Cabugao at the rate of P4 per kilometer. The principal evidence adduced to prove this promise is the letter Exhibit C which is alleged to be addressed to the plaintiff and signed by Leandro Serrano. The defendant assails the authenticity of this letter and the signature at the bottom thereof. Exhbit Q and R on the other hand were presented as memoranda where Dr. Fugueras noted down his visits accompanied by statements as to the services rendered. ISSUE

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Whether or not Exhibit C is genuine and therefore admissible in evidence. Whether or not Exhibit Q and R are admissible in evidence. HELD 1. NO Indeed, we notice as to the context that the typewritten characters therein are very similar to those of Exhibit 2. (p. 184 of the record) which is a letter written by the plaintiff's brother. The difference we observe in the typewriting of these documents consists in that in Exhibit C the type is more worn, thus suggesting the fact that it was written later. The prior date appearing in it does not preclude this conclusion, for any date, past or future, may at a given time be written on any document. A careful examination of Exhibit C reveals some details which bear out the presumption that it was written on the same typewriter as document Exhibit 2. And the changes and erasures which have not been satisfactory explained, likewise argue against the admissibility of this exhibit. The remarkable resemblance almost identical, in point of size and contour, between the signature in Exhibit C and the one in Exhibit J, as may be clearly seen by placing one upon the other, casts serious doubts on its genuineness. It seems hardly probable that Leandro Serrano should have been able to write two signatures so exactly alike, not only in the curvature at the base of the letters, and in the form of the small as well as the capital letters, but also in the distance between them, the space they occupy, and the slant of the strokes of the whole signature as well as of each letter thereof, and even in the length, contour, and other details of the paraph. As these details strongly indicate that Exhibit C is not genuine, we cannot consider it as reliable proof in this case. The burden of proof was on plaintiff to show, at least by a preponderance of evidence, that this document was admissible evidence of record, and, in this case the preponderance militates against the document. It cannot be held proven, therefore, that Leandro Serrano promised to pay the plaintiff P4 for every

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kilometer of his trips to Cabugao on his medical visits. The preponderance of admissible evidence of record is to the effect that the cost of each of such visits to Cabugao is about P25. Considering plaintiff's social standing, he was entitled to use an automobile as the most adequate mode of transportation. 2. NO Exhibits Q and R are objected to by the defendant as not duly identified and as incompetent evidence. It is true that the witnesses Parto and Florendo testified that they recognized the writing in said notebooks as plaintiff's, but there is no proof that the notes in these exhibits were written with the knowledge and consent, or even in the presence, of Leandro Serrano. Neither does it appear that such notes were made at the time of the visits and professional services referred to therein, or that they were written about that time. And the appearance of the writing in these books (Exhibit Q and R ) does not show that such notes were made therein on different occasions and at different periods of time, considering the noticeable uniformity of the handwriting and of the color of the ink used (in Exhibit Q), in almost all the entries, notwithstanding the fact that these entries cover a period of over one year. It is absolutely necessary for the admission of such entries to prove that they were made at or about the time of the transaction to which they relate. Once this is proven they may be admitted to corroborate the testimony of the person who made them. WRITTEN MEMORANDA MADE AT OR ABOUT THE TIME OF THE TRANSACTION TO WHICH THEY RELATE ARE SOMETIMES ADMITTED IN EVIDENCE TO CORROBORATE THE TESTIMONY OF THE PERSON BY WHOM THEY WERE MADE. (22 C.J., 869.) But the fact is that Exhibits Q and R not only do not meet the requirement as to being contemporaneous, but it appears that the plaintiff who made the memoranda noted therein did not even testify concerning them. These exhibits cannot, therefore, be taken into consideration to determine the number of visits made by the plaintiff nor that of the times he rendered professional services. The appellee alleges that said entries are corroborated by the witness Florendo, Formoso, Figueras and Arcebal, the first three of whom, chauffeurs who successively took the plaintiff to Cabugao, among themselves fixed the total number of trips to Cabugao at about one hundred, and Arcebal testified that at the time in question, he saw the plaintiff stop in front of the municipal building of Cabugao two or three times a week, going in the direction of Leandro Serrano's house. The number of times testified to by these witnesses, is, as it could not otherwise be as inferred from their own testimony, mere conjecture, without sufficient assurance of approximation, much less exactness. What these witnesses definitely established and wherein they corroborate the notebooks Exhibits Q and R, is that the plaintiff made trips to Cabugao, a fact admitted by the defendant. But as to the number of said trips, which is the point in question, the testimony of these witnesses, with all its uncertainty on this point, cannot be considered as either direct or corroborative evidence. We therefore find that the plaintiff's evidence does not supply data legally competent to ascertain the number of times he was in Cabugao to render professional services to Primitiva Serrano. According to the defendant's evidence consisting of Exhibits 6, 7, 9 and 10, identified by Pedro Suero and Simeon Serrano, the plaintiff made twenty-six medical visits to Primitiva Serrano in Cabugao, and ninety in Vigan. Not only are these Exhibits 6, 7, 9 and 10, identified, but it appears from the testimony of Pedro Suero, that he, as former clerk to Leandro Serrano, was enjoined to note down in Exhibits 6 and 7, which are Bristol Almanacs for the years 1919 and 1920, the name of Gregorio Figueras, whenever said physician paid a professional visit to Primitiva Serrano in Cabugao that he used to record plaintiff's medical visits to witness' sister, Primitiva Serrano, in Vigan, in the almanacs Exhibits 9 and 10 with the initial G and the letters "a.m." or "p.m." according as they were made in the morning or afternoon. Unlike the entries in Exhibits Q and R, those of Exhibits 6, 7, 9 and 10, are competent evidence, because, in addition to being sufficiently identified by the persons who made them at the time of the visits, their

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appearance, details, and the fact that they were made at the time of the visits so recorded, render them competent corroborative evidence under the rule above quoted from Corpus Juris (22 C.J., 896) and in accordance with the provision of section 279 of our present Code of Civil Procedure. Consequently we conclude that the number of visits proven in these proceedings is 26 in Cabugao and 90 in Vigan, and that the evidence shows that the plaintiff is entitled to receive P25 for each visit to Primitiva Serrano in Cabugao and P2 for each visit to her in Vigan, or a sum total of P830, as professional fees. It has not been sufficiently proven that these amounts do not include the fees for the treatment given on such visits, nor that the reasonable price of electrical treatments, injections and eye treatments (which in themselves are not sufficiently established) is P15 for each electrical treatment, P5 for each injection, and P2 for each eye treatment. MALCOLM, J., DISSENTING: The issue in this case is the reasonable value of the professional services performed by Dr. Gregorio Figueras for Leandro Serrano. The issue is not as to whether Dr. Gregorio Figueras is criminally guilty of fabricating the much discussed Exhibit C. With or without Exhibit C, there is sufficient evidence, including the physician's book of account, which establishes satisfactory the approximate number of visits made by Doctor Figueras to Mr. Serrano and the proper amount for each visit. (30 Cyc., 1603.) The total demanded by Doctor Figueras of the estate of Mr. Serrano coming to over P60,000 is grossly exaggerated. Even the sum of P19,144 granted by trial judge is too high. Yet there is no need to be so carried away by an enthusiastic desire to condemn unethical and unprofessional practices in making evidence to establish claims when no such evidence is necessary, as to throw out the action entirely and concede nothing to Doctor Figueras. Figuring on a basis of approximately two hundred visits to Cabugao, the home of the deceased, at P20 a visit and nearly the same number of consultation at the office of the physician at P2 a consultation, and adding a reasonable sum for special service and treatments, and taking into consideration the professional standing of Doctor Figueras, it is my opinion that the physician

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should be allowed P5,000 for his services. That is my vote and to that extent I dissent. PEOPLE V ODENCIO 88 SCRA 1 AQUINO: January 9, 1979 (da) FACTS: While Prowa Talib (Palua Talib), a forty-year old farmer, was in the yard of his house located at Barrio Simsiman, Pigcawayan, North Cotabato, handing a pot of rice to his wife, Setie Mamalintao, who was near the stairs, he was felled down by a volley of shots. Setie rushed to the aid of her husband. When she looked in the direction where the gunshots emanated, she saw Guiamelon Mama holding a gun near a coconut tree around six brazas away. Then, she heard another volley of shots. She saw Florencio Odencio (Poren), also holding a gun near another coconut tree around ten meters away in the yard of the house of her neighbor, Daongan Karaing. She noticed that Kadir Oranen was also shot dead. While Setie was comforting her husband, he allegedly told her that he was going to die. He directed her to remember what had happened to him and that they had seen Guiamelon Mama and Poren armed with guns. Prior to that shooting incident, Prowa Talib had reported to the barrio captain that Florencio Odencio had stolen his lumber. The two assailants fled westward and encountered Japal Rongot who was on his way to Talib's Upon reaching Talib's houseSetie told him that Talib was shot by Guiamelon and she pointed to him Oranen's corpse. Ngelam Towa another neighbor and the uncle of Setie went to get assistance from his father-in-lawand while crossing the trail his flashlight focussed on Florencio Odencio with two companions leaving the scene of the crime. Policemen arrived at Talib's house. Setie informed them that Guiamelon was the gunwielder. They brought Talib to a medical clinic where he was interrogated by Patrolman Joaquin Sañada Talib told Sañada that his assailants were Guiamelon, Florencio Odencio and Florencio's father, Joseph Odencio. Due to the critical condition of Talib (nagaagonto), he was not able to sign his dying declaration (Exh. B) as taken down by Patrolman Sañada Talib was brought to the hospital. He died on the following day. In that unsigned antemortem declaration, Talib revealed that Florencio Odencio suspected that he and Oranen had masterminded the theft of Joseph Odencio's two carabaos, and that, on the other hand, Guiamelon suspected Talib of having stolen the carabao of Damiog, the father-in-law of Guiamelon. It was stated further in the same dying declaration that Talib had told Patrolman Sañada that he wanted to sign it but that he could not do so because of the wound in his arm. Talib also articulated his belief that he was going to die because he could hardly breathe and his wound was painful. Within forty-eight hours after taking Talib's unsigned antemortem statement, Sañada executed an affidavit reciting the circumstances surrounding the taking thereof. Sañada testified in court on Talib's dying declaration. TC acquitted Joseph and convicted only Florencio and Guiamelon. In disbelieving the alibis of Florencio and Guiamelon, the trial court observed that the accused were indubitably Identified as the assailants in Talib's dying declarations to his wife and Patrolman Sañada. Setie Mamalintao in her statement to the police declared that she was able to recognize Florencio and Guiamelon because there was a "big torch" in front of her house and Karaing's house (No. 19, Exh. 1, p. 11, Record). Appellants' counsel contends that they were convicted on the basis of the wife's uncorroborated testimony "which is open to suspicion due to inherent improbabilities'' and "motives to falsify the truth". ISSUE: WON the accused were convicted solely on the basis of the wife’s uncorroborated testimony HELD: No. Talib's antemortem statement fortifies the testimony of his widow, an eyewitness. We have stressed that two other witnesses saw the appellants leaving the scene of the crime.

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Moreover, Talib's dying declaration was sufficiently proven. The rule is that a dying declaration may be oral or written If oral, the witness, who heard it, may testify thereto without the necessity, of course, of reproducing exactly the words of the decedent, if he is able to give the substance thereof. An unsigned dying declaration may be used as a memorandum by the witness who took it down. (See 5 Moran's Comments on the Rules of Court, 1970 Ed., pp. 315316.) Classes of Documents DELFIN V BILLONES GR 146550 TINGA; March 17, 2006 (maia) NATURE Petition for review on certiorari decision and resolution of CA (reversed decision of RTC) FACTS - in issue here are two deeds of absolute sale Sale no. 1: between Teresa Danos, Esperanza, Estrella, and Maria Darador, and Cipriano Degala (for marital consent only as husband of Teresa), as vendors, and Delfin Spouses as vendees. Executed on 29 July 1960, whereby Esperanza and Estrella affixed their signatures, and Teresa, Cipriano, and Maria affixed their thumb marks. The deed was notarized. The deed was registered with the register of deeds only on 18 November 1980, and a new TCT was issued in the name of the Delfins. Sale no. 2: between Teresa Danos, Trinidad, Leopoldo, Presentacion, Rosario, and Pedro Degala, as vendors, and the Delfin Spouses as vendees. Executed on March 1965, the deed likewise bears either the signatures or thumb marks of the sellers and was notarized. Again, the new TCT in the name of the Delfins was issued on 24 June 1980. -Delfin spouses consolidated the two lots and subdivided these into 6 small lots, and sold 2 of said lots to 3rd parties. - 12 April 1994, heirs of the vendors filed action for annulment, reconveyance, recovery of ownership and possession, with damages. According to them, it was

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only in 1989 when they found out that Teresa, sick and in dire need of money, was constrained to mortgage the 2nd lot to the Delfins. Delfins made her sign a document purporting to be a mortgage, but turned out to be an extrajudicial partition with deed of absolute sale. On the other hand, wrt to the 1st lot, the heirs allege that the deed of sale was fictitious and signatures and thumb marks therein where all forged because Edtrella, Esperanza, and Cipriano all died prior to the execution of the deed. As proof, they presented certifications on the deaths of Esperanza and Cipriano by the Local Civil Registrar. - RTC: in favor of Delfins. CA: reversed and annulled the deeds of sale, saying that wrt to the 2nd lot, circumstances surrounding the execution of the document show that the real intention was merely to secure a loan of P300, thus it was an equitable mortgage and not a sale. Wrt to the 1st lot, CA said that the deed of sale could not have been executed since some of the vendors were already dead, and that due execution cannot prevail over the fact that 2 signatories were already dead (based on the 2 death certificates presented) ISSUE 1. WON the deeds of sale are valid HELD 1. YES Ratio Fraud may be, and often is, proved by or inferred from circumstances, and the circumstances proved may in some cases raise a presumption of its existence. However, while fraud may be proved by circumstances or presumed from them, it cannot be demonstrated by mere construction, but must be proven in all cases. Reasoning In essence, petitioners insist that respondents failed to prove that fraud attended the sale of the Lots. The Court agrees. - A contract or conduct apparently honest and lawful must be treated as such until it is shown to be otherwise by either positive or circumstantial evidence. A duly executed contract carries with it the presumption of validity. The party who impugns its regularity has the burden of proving its simulation. A notarized document is executed to lend truth to the statements contained therein and to the authenticity of the signatures. Notarized documents enjoy the presumption of regularity which can be overturned only by clear and convincing evidence (Lao v. Villones-Lao). - As plaintiffs in the action before the trial court, respondents (the heirs) have the burden to establish their case by a preponderance of evidence, or evidence which is of greater weight or more convincing than that which is offered in opposition to it. Hence, parties who have the burden of proof must produce such quantum of evidence, with plaintiffs having to rely on the strength of their own evidence, not on the weakness of the defendant’s. -As regards the 2nd lot, the heirs specifically alleged that the Delfins trickery and fraud. They claimed that the original owners of the Lot did not intend to execute a deed of extra-judicial partition and absolute sale but only a mortgage instrument. However, all that respondents came out with were bare allegations that the said owners were either old and sickly or illiterate; that the purported selling price of P300.00 was unconscionable; and that petitioners failed to eject respondents from the subject land, as respondents were unable to present any evidence to substantiate their claims, much less the charge of fraud. Their bare and unsupported allegations are not enough to overthrow the presumption of the validity of said agreement or to raise the presumption of fraud. -Considering that the heirs failed to establish the existence of fraud in the spouses Delfin’s acquisition of the 2nd lot, it cannot be said that implied or constructive trust was created between respondents and the Delfins. The action for reconveyance of the 2nd lot must fail. In view of the heirs’ failure to show their valid title to said lot or even their occupation thereof, the case cannot prosper even when it is viewed as one for quieting of title. - WRT to the 1st Deed of Sale (and on the topic of documents): - CA annulled the 1st Deed of Absolute Sale because “one of the vendors therein was already dead,” relying on the certifications issued by the Local Civil Registrar. In assailing this declaration, petitioners once more point out that the Deed of Sale, being a duly notarized document, should be given full faith and credit. Also, they argue that the appellate court’s conclusion is based on the disputable presumption that identity of names means identity of persons. -Documents 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.

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Public documents may be proved by the original copy, an official publication thereof, or a certified true copy thereof; and when a copy of a document or record is attested for the purpose of evidence, the attestation by the officer having legal custody of the record must state that the copy is a correct copy of the original, or a specific part thereof, as the case may be. - A duly-registered death certificate is considered a public document and the entries found therein are presumed correct, unless the party who contests its accuracy can produce positive evidence establishing otherwise. Nevertheless, this presumption is disputable and is satisfactory only if uncontradicted, and may be overcome by contrary evidence - The documents presented by the heirs were mere certifications and not the certified copies or duly authenticated reproductions of the purported death certificates of Esperanza and Cipriano. They are not the public documents referred to by the Rules of Court, nor even records of public documents; thus, they do not enjoy the presumption granted by the Rules. The heirs did not even present the local civil registrar who supposedly issued the certifications to authenticate and identify the same. - Likewise, respondent/witness Jolly Datar who adverted to the certifications did not testify on how the certifications were obtained, much less his role therein. As a consequence, the trial court did not admit the certifications as independent pieces of evidence but merely as part of the testimony of Jolly Datar. A document or writing which is admitted not as independent evidence but merely as part of the testimony of a witness does not constitute proof of the facts related therein. Clearly then, the certifications cannot be given probative value, and their contents cannot be deemed to constitute proof of the facts therein stated. - More importantly, the very exhibits of the heirs dispel the presumption of regularity of the issuance of the certifications of death relied upon by the CA. The certifications state that both Esperanza Daradar and Cipriano Degala died in 1946 at ages 24 and 63, respectively. However, a careful study of the records of the case shows that in the OCT, Esperanza was already 20 years old in 1929, making her date of birth to be sometime in 1909. This is totally incongruous with her supposed age of 24 years in 1946, which places the year of her birth in 1922. Likewise, the Court takes note of the CA Decision in CA-G.R. CV No. 31739, wherein

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the CA in its statement of facts found that Esperanza Daradar died on 10 August 1940, while Estrella Daradar died on 15 June 1943, contrary to the claim of respondents in this case. The Esperanza Daradar named in the OCT and the one referred to in the aforesaid Decision could not have been the same Esperanza Daradar in the Local Civil Registrar’s certification. - Under the circumstances, therefore, respondents were unable to overthrow the presumption of validity of the Deed of Absolute Sale. Disposition Petition is granted. Decision reversed. 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. -Aznar filed a complaint for damages against Citibank, 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. -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 -To prove that Citibank blacklisted his Mastercard, Aznar presented a computer print-out, denominated as ON-LINE AUTHORIZATIONS FOREIGN ACCOUNT ACTIVITY REPORT, issued to him by Ingtan Agency (Exh. "G") with the signature of one Victrina Elnado Nubi which shows that his card in question was "DECL OVERLIMIT" or declared over the limit. -Citibank denied the allegation that it blacklisted Aznar’s card. To prove that they did not blacklist Aznar’s card, Citibank’s Credit Card Department Head, Dennis Flores, presented Warning Cancellation Bulletins, which contained the list of its canceled cards covering the period of Aznar’s trip. Aznar’s wasn’t in the list. -RTC of Cebu dismissed Aznar’s complaint for lack of merit and held that as between the computer print-out presented by Aznar and the Warning Cancellation Bulletins presented by Citibank, the latter had more weight as their due execution and authenticity were duly established by Citibank.Also held that even if it was shown that Aznar’s 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. -Aznar filed a MFR 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. The case was re-raffled with the new judge granting Aznar’s MR saying that it was improbable that a man of Aznar’s stature would fabricate the computer print-out which shows that Aznar’s 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

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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 Aznar’s Mastercard; no rebutting evidence was presented by Citibank to prove that Aznar’s 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 Aznar’s credit limit and ensure that Aznar will not encounter any embarrassing situation with the use of his Mastercard; Citibank’s 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. -Citibank filed an appeal with the CA and its counsel filed an administrative case against Judge De la Peña 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. -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 Sec. 2, Rule 5 of the Rules on Electronic Evidence or under Sect.20 of Rule 132 of the Rules of Court by anyone who saw the document executed or written; Aznar, however, failed to prove the authenticity of Exh. "G", thus it must be excluded; the unrefuted testimony of Aznar that his credit card was dishonored by Ingtan Agency and certain establishments abroad is not sufficient to justify the award of damages in his favor, absent any showing that Citibank had anything to do with the said dishonor; Citibank had no absolute control over the actions of its merchant affiliates, thus it should not be held liable for the dishonor of Aznar’s credit card by said establishments. -Aznar’s MR was denied by the CA. -As regards the admin case, J. Dela Pena was adjudged guilty.

Authentication of Private Document EMMANUEL B. AZNAR v. CITIBANK, N.A., (Philippines) G.R. No. 164273 AUSTRIA-MARTINEZ; March 28, 2007 (edel) NATURE: CERTIORARI Facts: -Aznar, a known businessman in Cebu, is a holder of a Preferred Mastercard issued by Citibank with a credit limit of P150,000.00. As he and his wife, Zoraida, planned to take their two grandchildren, on an Asian tour, Aznar made a total advance deposit of P485,000.00 with Citibank with the intention of increasing his credit limit to P635,000.00. -With the use of his Mastercard, Aznar purchased plane tickets to Kuala Lumpur for his group worth P237,000.00. -During the trip, Aznar claims that when he presented his Mastercard in some establishments in Malaysia, Singapore and Indonesia, the same was not honored. -And when he tried to use the same in Ingtan Tour and Travel Agency (Ingtan Agency) in Indonesia to purchase

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Issue: WON Aznar has established his claim against Citibank. If so, WON Citibank is liable for damages. HELD: NO to both. On his claim: 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. -Aznar failed to prove with a preponderance of evidence that Citibank blacklisted his Mastercard or placed the same on the "hot list. -Aznar in his testimony admitted that he had no personal knowledge that his Mastercard was blacklisted by Citibank and only presumed such fact from the dishonor of his card. -The dishonor of Aznar’s Mastercard is not sufficient to support a conclusion that said credit card was blacklisted by Citibank, especially in view of Aznar’s own admission that in other merchant establishments in Kuala Lumpur and Singapore, his Mastercard was accepted and honored. -Aznar puts much weight on the ON-LINE AUTHORIZATION FOREIGN ACCOUNT ACTIVITY REPORT, a computer print-out handed to Aznar by Ingtan Agency, marked as Exh. "G", to prove that his Mastercard was dishonored for being blacklisted. -But such exhibit cannot be considered admissible as its authenticity and due execution were not sufficiently established by Aznar as per Sec 20 of Rule 132 of the RoC. 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. -Even 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. -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 printout because while the name of Ingtan Agency was mentioned by Aznar, its business address was not reflected in the print-out. -Indeed, Aznar failed to demonstrate how the information reflected on the print-out was generated and how the said information could be relied upon as true. -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;

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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. - Also, It is not clear 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 printout 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 Warning Cancellation Bulletins (WCB) which covered the period 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. -Citibank produced 300 documents to show that Aznar 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 (exh.G) and the Warning Cancellation Bulletins 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 plaintiff’s preferred master card was actually placed in the “hot list” or blacklisted for the following reasons: 1) the due execution and authentication of these Warning Cancellation Bulletins (or WCB) have been duly

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established and identified by Citibank’s witness, Dennis Flores, one of the bank’s officers, who is the head of its credit card department, and, TF, competent to testify on the said bulletins as having been issued by the defendant bank showing that plaintiff’s preferred master credit card was never blacklisted or placed in the Bank’s “hot list”. While Aznar’s computer print out 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 presented by defendants (sic) and an unauthenticated private document, plaintiff’s computer print out (Exh. G), the former deserves greater evidentiary weight supporting the findings of this Court that plaintiff’ s preferred master card had never been blacklisted at all or placed in a so-called “hot list” by defendant. 2) On implied novation (when he added addt’l funds to increase credit limit): the Court finds that petitioner's argument on this point has no leg to stand on. On damages: -the Court agrees with Aznar that the terms and conditions of Citibank’s 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. -On Par 7 of said contract: 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,Citibank. On limiting its liability to P1k or the actual damage proven, whichever is lesser: 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. -The invalidity of the terms and conditions being invoked by Citibank, notwithstanding, the Court still cannot award damages in favor of petitioner. -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. -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. BPI v. CA: xxx… 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. Disposition: The petition is denied for lack of merit. HEIRS OF LACSA V CA (HEIRS OF SONGCO) G.R. Nos. 79597-98 PADILLA; May 20, 1991 (owen) FACTS - Action for recovery of possession with damages and preliminary injunction (Civil Case 1) and action for cancellation of title, ownership with damages and preliminary injunction (Civil Case 2) filed by Heirs of Lacsa against Heirs of Songco (1) that during Demetria Lacsa’s (decedent) lifetime, was the owner of a certain parcel of land consisting partly of a fishpond and partly of uncultivated open space in Guagua, Pampanga, evidenced by OCT RO-1038 (11725); (2) that Heirs of Songco 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; (3) that they refused to vacate the same despite their demands to vacate but later abandoned the same but only after the case was filed and after all the fish were transferred to the adjoining fishpond owned by them; (4) that Heirs of Songco presented to the Register of Deeds of Pampanga certain forged and absolutely

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simulated documents, namely: "TRADUCCION AL CASTELLANO DE LA ESCRITURA DE PARTICION EXTRAJUDICIAL" (TRADUCION) and "ESCRITURA DE VENTA ABSOLUTA" (ESCRITURA); and - Heirs of Songco claim that Heirs of Lacsa lacks cause of action, for the reason that OCT RO-1038 (11725) was merely a reconstituted copy issued in April 1983 upon Heirs of Lacsa’s expedient claim that the owner's duplicate copy thereof had been missing when the truth of the matter was that (a) OCT RO-1038 (11725) in the name of Demetria Lacsa, had long been cancelled and superseded by TCT No. 794 by virtue of the document TRADUCION (written in the Spanish language) entered into by her two daughters Alberta Guevarra and Ambrocia Guevarra with their respective husbands Juan Limpin and Damaso Cabais for an extrajudicial partition of the properties; (b) the Alberta Guevarra and Juan Limpin and the Ambrosia Guevarra and Damaso Cabais executed on April 7, 1923, another deed of partition (in the Pampango dialect) wherein the fishpond in question was adjudicated to Alberta Guevarra and as a consequence, OCT No. 794 was issued to Alberta Guevarra and Juan Limpin; (c) the latter TCT was in turn superseded by TCT No. 929 issued in the name of Inocencio Songco (decedent of respondents) by virtue of a document ESCRITURA executed by spouses Juan Limpin and Alberta Guevarra in favor of said Inocencio Songo and duly registered in the Office of the Registry of Deeds of Pampanga as evidenced by the certification of the Deputy Register of Deeds; (d) as a result of this sale, TCT No. 794 in the name of the Alberta Guevarra and Juan Limpin was cancelled by the Office of the Registry of Deeds of Pampanga and TCT No. 929 was issued to Inocencio Songco - TC: the fishpond in question belongs to Heirs of Songco, having been inherited by them from their deceased father Inocencio Songco. - CA: affirmed, MFR denied - Heirs of Lacsa claim that Ancient Document Rule under Section 2 Rule 132 is misapplied because 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. Thus, TRADUCION and ESCRITURA cannot

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qualify because 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. ISSUE WON CA erred in applying the “Ancient Document Rule” on the questioned document entitled 'ESCRITURA DE PARTICION EXTRAJUDICIAL' and 'ESCRITURA DE VENTA ABSOLUTA HELD NO Ratio 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. "Ancient Document Rule" provided in Sec. 22, Rule 132 of the Rules of Court states that: "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." Reasoning (1) TRADUCION was executed on 7 April 1923 whereas ESCRITURA 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. 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. (2) As to the last requirement that the document must on its face appear to be genuine, Heirs of Lacsa 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. 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. 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. Disposition Petition is DENIED. CA affirmed

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her; that upon his advice, she sought a co-maker, her son William Lao. Upon approval of the loan, petitioner and Lao signed a promissory note and deed of REM. After that, a check was issued by Kyoritsu in the amount of P339,000 to cover the loan. - Kyoritsu required Lao to issue postdated checks. Since some of the checks bounced, verbal demands were made upon the petitioner and Lao to pay. Despite the extension, they did not pay. When petitioner received the demand letter, she called up Kyoritsu’s office and promised to pay. However, she failed to do so. Hence, the foreclosure proceedings. - TC declared that the signatures of petitioner were forged; that the deed of REM and the promissory note were null and void; and that Kyoritsu should return to petitioner her copy of the Transfer Certificate of Title and all documents relating to the land in question. It also enjoined the sheriff of Pasay City from doing any act in furtherance of the intended foreclosure and auction sale of the property. - CA reversed and set aside the judgment of the trial court. It held that petitioner’s signatures on the REM and promissory note were not forged, and should be given effect. ISSUE WON petitioner Cogtong’s signature was forged. HELD NO. The genuineness of a handwriting may be proved by a comparison made by the court of the questioned handwriting and 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. The Court may validly determine forgery from its own independent examination of the documentary evidence at hand. Hence, this Court scrutinized the evidence on record to determine whether the signature of petitioner was in fact forged. - Passage of time and a person’s increase in age may have a decisive influence in his handwriting characteristics. In order to bring about an accurate comparison and analysis, the standards of comparison must be as close as possible in point of time to the suspected signature. The standards should, if possible, have been made at the same time as the suspected document. The standards should embrace the time of the origin of the document, so that one part comes from

COGTONG v. KYORITSU INTERNATIONAL GR No. 160729 QUISUMBING; July 27, 2007 (glaisa) FACTS - Cogtong learned from the Notice of Sheriff’s Sale that her house and lot had been mortgaged to Kyoritsu. She claims that she did not execute a deed of Real Estate Mortgage (REM) nor a promissory note in favor of Kyoritsu, and that the signatures thereon are not hers but forgeries. She also avers that her son, William Lao, admitted that he was the one who forged her signature and mortgaged the property to Kyoritsu. Hence, an action was filed by petitioner on March 10, 1997 seeking to enjoin Kyoritsu from proceeding with the extrajudicial foreclosure sale. - Kyoritsu denies petitioner’s allegation of forgery and alleges that she is its legitimate creditor. Kyoritsu presented in court Mr. George Gusilatar, Jr., the head of its credit investigation panel. Gusilatar testified that petitioner went to the office of Kyoritsu; that she submitted a duly-filled application which was signed by

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the time before the origin and one part from the time after the origin. - Forgery cannot be presumed. It must be proved by clear, positive and convincing evidence and whoever alleges it has the burden of proving the same, a burden which petitioner failed to discharge convincingly. Here, petitioner failed to override the evidentiary value of the duly notarized deed of REM and promissory note. As a notarized document, the deed of REM and promissory note enjoy the presumption of due execution. However, no evidence was presented by petitioner to overcome this presumption. Other than her own declaration that her signatures on the questioned documents were forged and the prayer booklets which she presented during trial, petitioner presented no other proof to corroborate her claim. Such an allegation and evidence are insufficient to overcome a notarized document’s presumption of due execution. Hence, this Court cannot accept the claim of forgery in the absence of other witnesses, save for petitioner herself, who would testify that petitioner’s signatures on the prayer booklets are in fact her customary way of signing. Dispositive the instant petition is DENIED for lack of merit. The assailed Decision dated March 17, 2003 of the CA and its Resolution dated November 11, 2003 in CA-GR CV No. 62432 are AFFIRMED. Offer of Evidence PAREL V PRUDENCIO G.R. 146556 AUSTRIA-MARTINEZ; April 19, 2006 (aida) NATURE Petition for certiorari FACTS - February 27, 1992 – Prudencio filed a complaint for recovery of possession and damages against Parel. Prudencio alleged that he owned a two-storey residential house in Baguio City, the construction of which was funded by his own money and declared in his name under Tax Declaration No. 47048. The construction began in 1972 and was completed after three years. - In 1973, when the second storey of the house was undergoing construction, Prudencio allowed Parel’s parents (the late Florentino and Susana) to move in so that the couple could supervise the construction of the house and to safeguard the materials. When the second storey was completed, he allowed the Parels and their children to temporarily live in the house out of sheer magnanimity because Florentino was his brotherin-law. - November 1985 – Prudencio wrote Florentino, asking the latter to vacate the house as the former was due for retirement. This request was acceded to by Florentino and Susana when they migrated to the US in 1986. - Without Prudencio’s knowledge, Parel and family unlawfully entered the house and took possession of the ground floor. They refused to leave despite Prudencio’s demands which prompted the respondent to institute an action for recovery. Prudencio also asked for a monthly rental of P3,000 from April 1988 until Parel vacates the house. - In his counterclaim, Parel alleges that his parents are the co-owners of the said house. He claim that he occupied the ground floor of the house with his father Florentino’s knowledge. - The RTC found that the house was co-owned by Florentino and Prudencio thus the latter cannot evict Parel. The RTC found that: - Florentino 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. - Prudencio failed to show proof of any contract, written or oral, express or implied, that 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. - Prudencio and Florentino agreed to contribute their money to complete the house. Since the land on which said house was erected has been allocated to Florentino, the parties had the understanding that once the house was completed, Florentino could keep the ground floor while Prudencio could have the second floor. - The RTC did not give credence to the tax declaration as well as the several documents showing the City Assessor’s assessment of the

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property all in Prudencio’s name since tax declarations are not conclusive proof of ownership. - Upon appeal to the CA, the CA reversed the RTC decision. The CA found as meritorious Prudencio’s 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 court’s statement that Parel’s 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. - The said power of attorney was never offered, hence, could not be referred to as evidence to support Parel’s claim. - 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 Florentino, there was no supporting document which would sufficiently establish factual bases for the TC’s conclusion; and that the rule on offer of evidence is mandatory. - An affidavit dated September 24, 1973 was issued by Florentino. The said affidavit stated that Prudencio, not Florentino, was the owner of the house. The CA found the affidavit to be conclusive proof of Prudencio’s sole ownership of the house since it was a declaration made by Florentino against his interest. - The CA 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 Prudencio’s case which constitute at least proof that the holder has a claim of title over the property. ISSUES WON Parel was able to prove by preponderance of evidence that his father was a co-owner of the subject two-storey residential house HELD YES

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Reasoning - The building plan of the residential house dated January 16, 1973 was in the name of respondent and his wife. It was established during petitioner’s crossexamination that the existing structure of the twostorey house was in accordance with said building plan. - Court reasoning relevant to declaration against interest - The rule on declaration against interest is in Rule 130, Sec. 38. - 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. - 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 children’s interests as his heirs. A declaration against interest is the best evidence which affords the greatest certainty of the facts in dispute. - Notably, during Florentino’s 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 and his son. - 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. The house which Parel claims to be coowned by Florentino had been consistently declared for taxation purposes in the name of Prudencio, and this fact, taken with the other circumstances abovementioned, inexorably lead to the conclusion that respondent is the sole owner of the house subject matter of the litigation. - Court reasoning as to offer of evidence - The rule on offer of evidence is in Rule 132, Sec. 34. - The records show that although Parel’s counsel asked that he be allowed to offer his documentary evidence in writing, he, however, did not file the same. Thus, the CA did not consider the documentary evidence presented by petitioner. - 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. 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. 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. - The reliance in Bravo v. Borja is misplaced. In Bravo, the Court 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 petitioner’s 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 RoC and not Section 34 of Rule 132. - The testimonies of Parel and his witnesses failed to show that the subject house is co-owned by Florentino and respondent. Disposition Judgment affirmed. HEIRS OF PASAG V PAROCHA G.R. No. 155483 VELASCO, JR; Apro 27, 2007 (giulia) Nature Petition for Review on Certiorari under Rule 45

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Facts -The instant case arose from a Complaint for Declaration of Nullity of Documents and Titles, Recovery of Possession and Ownership, Reconveyance, Partition and Damages filed by petitioners in the RTC against respondents. Petitioners alleged a share over three (3) properties owned by respondents, which formed part of the estate of petitioners intestate grandparents, Sps Pasag. However, Severino (1 of the Sps Pasag's 8 children), the predecessor of respondents, claimed in an affidavit of self-adjudication that he is the sole, legal, and compulsory heir. Consequently, he was able to appropriate to himself the properties. Thereafter, Severino executed a deed of absolute sale over the said properties in favor of his daughter, respondent Florentina Parocha. Moreover, petitioners alleged that Severino used the same affidavit of self-adjudication to secure a free patent over an agricultural land that had long been under the possession of Benito and Florentina Pasag. Respondents averred in their Answer that the properties left behind by the Sps Pasag had already been partitioned among their eight (8) surviving children. They claimed that the 2 parcels of land are Bonifacio's share of which he later on renounced in a Quitclaim Deed in favor of his brother, Severino. As regards 3rd parcel of land, respondents asserted that the said land had been in Severino's possession and occupation since 1940, thus, giving him the right to apply for and be granted a free patent over it. Having complied with the requirements of law, Severino's title had now become indefeasible. -In the course of the trial, petitioners asked the TC to give them extension to submit their offer of evidence; and court granted their motion. However, on the due date of the extension, they again failed to submit their offer of evidence and moved for another extension. Unfortunately, petitioners still failed to submit their formal offer of evidence within the extended period. Consequently, TC deemed waived petitioners' right to make their formal offer of evidence. -Later, petitioners moved for the admission of their offer of evidence. However, TC denied if for their constant failure to submit it. -Respondents filed a MTD on Demurrer to Evidence. TC granted demurrer to evidence and ordered the dismissal of the Complaint. Petitioners' MR was denied for lack of merit.

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-Petitioners appealed the case to the CA. CA affirmed the ruling of the TC. CA held that petitioners failed to prove their claim by a preponderance of evidence. It observed that "no concrete and substantial evidence was adduced by [petitioners]" to substantiate their allegation that Severino, the predecessor of respondents, fraudulently executed an affidavit of selfadjudication in order to exclude petitioners from the settlement of the estate of Sps Pasag. Issues WON there was waiver of petitioners' offer of documentary evidence WON LC erred in the dismissal of the Complaint on a demurrer to evidence. Held Waiver of the Offer of Evidence Yes. The Rule 132.34 provides that "the court shall consider no evidence which has not been formally offered." A formal offer is necessary because judges are mandated to rest their findings of facts and their judgment only and strictly upon the evidence offered by the parties at the trial. Its function is to enable the trial judge to know the purpose or purposes for which the proponent is presenting the evidence. This also allows opposing parties to examine the evidence and object to its admissibility. Moreover, it facilitates review as the appellate court will not be required to review documents not previously scrutinized by the TC. -There should be strict adherence to the rule. The Court in Constantino v. CA ruled that the formal offer of one's evidence is deemed waived after failing to submit it within a considerable period of time. It explained that the court cannot admit an offer of evidence made after a lapse of three (3) months because to do so would "condone an inexcusable laxity if not non-compliance with a court order which, in effect, would encourage needless delays and derail the speedy administration of justice." The pre-trial guidelines and Rule 132.35 jointly considered makes it is clear that the party who terminated the presentation of evidence must make an oral offer of evidence on the very day the party presented the last witness. Otherwise, the court may consider the party's documentary or object evidence waived. While Sec. 35 of Rule 132 says that the trial court may allow the offer to be done in writing, this can only be tolerated in extreme cases where the object evidence or documents are large in number say from 100 and above, and only where there is unusual difficulty in preparing the offer. -No evidence shall be allowed to be presented and offered during the trial in support of a party's evidencein-chief other than those that had been identified below and pre-marked during the pre-trial. Any other evidence not indicated or listed below shall be considered waived by the parties. However, the Court, in its discretion, may allow introduction of additional evidence in the following cases: (a) those to be used on cross-examination or re-cross-examination for impeachment purposes; (b) those presented on redirect examination to explain or supplement the answers of a witness during the cross-examination; (c) those to be utilized for rebuttal or sur-rebuttal purposes; and (d) those not available during the pretrial proceedings despite due diligence on the part of the party offering the same. From the foregoing provisions, both parties should obtain, gather, collate, and list all their respective pieces of evidence whether testimonial, documentary, or object, even prior to the preliminary conference before the clerk of court or at the latest before the scheduled pre-trial conference. Otherwise, pieces of evidence not identified or marked during the pre-trial proceedings are deemed waived and rendered inutile. The parties should strictly adhere to the principle of "laying one's cards on the table." In the light of these issuances and in order to obviate interminable delay in case processing, the parties and lawyers should closely conform to the requirement that the offer of evidence must be done orally on the day scheduled for the presentation of the last witness. -Thus, the TC is bound to consider only the testimonial evidence presented and exclude the documents not offered. Documents which may have been identified and marked as exhibits during pre-trial or trial but which were not formally offered in evidence cannot in any manner be treated as evidence. Neither can such unrecognized proof be assigned any evidentiary weight and value. It must be stressed that there is a significant distinction between identification of documentary evidence and its formal offer. Identification of documentary evidence is done in the course of the pretrial, and trial is accompanied by the marking of the evidence as an exhibit; while the formal offer is done only when the party rests its case. The mere fact that a particular document is identified and marked as an

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exhibit does not mean that it has already been offered as part of the evidence. It must be emphasized that any evidence which a party desires to submit for the consideration of the court must formally be offered by the party; otherwise, it is excluded and rejected. Dismissal of the Complaint on a Demurrer to Evidence No. A demurrer to evidence is an instrument for the expeditious termination of an action; thus, abbreviating judicial proceedings. It is defined as "an objection or exception by one of the parties in an action at law, to the effect that the evidence which his adversary produced is insufficient in point of law (whether true or not) to make out his case or sustain the issue." (Black's Law Dictionary) -The demurrer challenges the sufficiency of the plaintiff's evidence to sustain a verdict. The court is merely required to ascertain whether there is competent or sufficient proof to sustain the indictment or to support a verdict of guilt. -In the present case, petitioners have failed to sufficiently prove their allegations. It is a basic rule in evidence that the burden of proof lies on the party who makes the allegations. However, petitioners did not substantiate their allegations and merely argued that the Complaint should be "threshed out in a full blown trial in order to establish their respective positions on issues [which are] a matter of judicial appreciation." -It must be stressed that fraud is not presumed; and it must be proved by clear and convincing evidence, and not by mere conjectures or speculations. No such evidence was presented in this case to sustain petitioners' allegations. Dispositive WHEREFORE, we DENY the petition and AFFIRM the assailed Resolution of the CA, with costs against petitioners. SO ORDERED. SALAS VS STA. MESA MARKET CORPORATION GR 157766 CORONA; July 12, 2007 (athe) NATURE: Petition for review on certiorari FACTS

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Primitivo E. Domingo handed the management of his estate, including the respondent corporation Sta. Mesa Market Corporation (SMMC), to petitioner Ernesto L. Salas. As estate manager, petitioner was primarily tasked to ensure SMMC's continued viability and profitability by redeveloping the Sta. Mesa market and restructuring the corporation's finances. Domingo, on the other hand, bound himself to transfer 30% of SMMC's subscribed and paid-up capital stock to petitioner as part of his compensation. But, if petitioner failed to achieve a monthly market revenue of at least P350,000, he would be obliged to return the shares of stock of SMMC to Domingo. Shortly after the execution of the contract, SMMC, under petitioner's management, leased the Sta. Mesa market to Malaca Realty Corporation (Malaca). But it became apparent soon thereafter that Malaca was financially incapable of improving and expanding the existing facilities of the Sta. Mesa market. In fact, it was unable to pay the monthly rent. Thus, SMMC terminated its lease contract with Malaca. As a result, its board of directors became dissatisfied with petitioner's management of the corporation. Thereafter, it ended its management contract with petitioner (and Inter-Alia). On June 8, 1987, petitioner filed an action for specific performance and damages against SMMC and Domingo in the RTC of Quezon City. He alleged that SMMC's monthly market revenue had surpassed P350,000 yet Domingo refused to comply with his obligation to deliver 30% of the subscribed and paid-up capital stock of SMMC to him. In his answer, Domingo argued that petitioner was not entitled to the shares of SMMC. On the contrary, the corporation suffered additional losses and incurred new liabilities (which respondents consistently itemized in their pleadings) amounting to P1,935,995.06 over the twenty-one (21) months petitioner was managing it. PROCEDURE RTC (Action for specific performance and damages) in favor of Salas . The trial court considered copies of SMMC's audited financial statements which showed an improvement in the corporation's monthly average gross income (from P251,790 in 1984 to P409,794 in 1985). CA (Appeal) – Decision reversed. Petitioner failed to prove the authenticity of the audited financial statements. He did not present a representative of SMMC's external auditor, Bejarin Jimenez & Co., to testify on the genuineness and due execution of the audited financial statements of SMMC. Instead, petitioner presented a memorandum prepared by a member of his management team attesting to the increase in the corporation's monthly market revenue. For this reason, the appellate court ruled that the audited financial statements were not only self-serving but also hearsay. MR - denied. ISSUE WON the CA erred in holding that the audited financial statements were inadmissible in evidence due to lack of proper authentication HELD NO. Ratio Financial statements, whether audited or not, are, as general rule, private documents. However, once financial statements are filed with a government office pursuant to a provision of law, they become public documents. Whether a document is public or private is relevant in determining its admissibility as evidence. Public documents are admissible in evidence even without further proof of their due execution and genuineness. On the other hand, private documents are inadmissible in evidence unless they are properly authenticated. Section 20, Rule 132 of the Rules of Court provides: 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. Reasoning a. Petitioner and respondents agree that the documents presented as evidence were mere copies of the audited financial statements submitted to the BIR and SEC. Neither party claimed that copies presented were certified true copies of audited financial statements obtained or secured from the BIR or the SEC which under Section 19(c), Rule 132 would have been public documents. Thus, the statements presented were private documents. Consequently,

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authentication was a precondition to their admissibility in evidence. But in this case, petitioner merely presented a memorandum attesting to the increase in the corporation's monthly market revenue, prepared by a member of his management team. While there is no fixed criterion as to what constitutes competent evidence to establish the authenticity of a private document, the best proof available must be presented. The best proof available, in this instance, would have been the testimony of a representative of SMMC's external auditor who prepared the audited financial statements. Inasmuch as there was none, the audited financial statements were never authenticated. b. The petitioner cannot also insist on the application of an exception to this rule: authentication is not necessary where the adverse party has admitted the genuineness and due execution of a document because the fact was that nowhere in his testimony did Amado Domingo categorically admit the authenticity of the copies of the audited financial statements. He only testified that SMMC regularly submitted its audited financial statements to the BIR and SEC. There was never any admission that the documents presented by petitioner were true or faithful copies of those submitted to the BIR and the SEC. DISPOSITION: Petition DENIED. The resolution of the Court of Appeals AFFIRMED. Weight and Sufficiency of Evidence DELGADO v RUSTIA CORONA; January 27, 2006 G.R. No. 155733 (jojo) NATURE Petition for review on certiorari, petitioners seek to reinstate decision of the RTC of Manila FACTS Claimants to the estates of Guillermo Rustia and Josefa Delgado: (1) the alleged heirs of Josefa Delgado – half- and fullblood siblings, nephews and nieces, and grandnephews and grandnieces

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(2) the alleged heirs of Guillermo Rustia – sisters, his nephews and nieces, his illegitimate child, and the de facto adopted child (ampun-ampunan) of the decedents. The alleged heirs of Josefa Delgado - Felisa + Ramon Osorio (union in dispute) = Luis Delgado Felisa + Luio Campo (admittedly without the benefit of marriage) = Josefa, Nazario, Edilberta, Jose, Jacoba and Gorgonio (all natural children) Petitioners ( collateral relatives of Josefa): Ramon and Felisa were never married – no evidence was ever presented to establish the marriage, not even so much as an allegation of the date or place of the alleged marriage; Felisa retained the surname Delgado and so did Luis, her son with Ramon Osorio. Later on, when Luis got married, his Partida de Casamiento stated that he was the natural child of Felisa, significantly omitting any mention of the name and other circumstances of his father. - Oppositors (now respondents): the absence of a record of the alleged marriage did not necessarily mean that no marriage ever took place. - Josefa died in 1972 without a will. She was survived by Guillermo and the petitioners. Several months later, Guillermo executed an affidavit of selfadjudication of the remaining properties comprising her estate. The marriage of Guillermo Rustia and Josefa Delgado - In 1917, Guillermo proposed marriage to Josefa but whether a marriage in fact took place is disputed. Petitioners: the two eventually lived together as husband and wife but were never married; no record of the contested marriage existed in the civil registry; a baptismal certificate naming Josefa as one of the sponsors referred to her as “Señorita” or unmarried woman. - Respondents: the absence of a marriage certificate did not of necessity mean that no marriage transpired; Guillermo and Josefa were married on June 3, 1919 and from then on lived together as husband and wife until the death of Josefa - during this period spanning more than half a century, they were known among their relatives and friends to have in fact been married. They presented the following pieces of evidence: 1. Certificate of Identity No. 9592 issued to Mrs. Guillermo J. Rustia 2. Philippine Passport No. 4767 issued to Josefa D. Rustia on June 25, 1947 3. Application with for Pension or Compensation with the Veterans Administration of the USA wherein Guillermo himself swore to his marriage to Josefa in Manila on 3 June 1919 4. Titles to real properties in the name of Guillermo indicated that he was married to Josefa. The alleged heirs of Guillermo Rustia - Guillermo + Josefa = no child but took into their home, but never legally adopted, youngsters Guillermina Rustia and Nanie Rustia - Guillermo + Amparo Sagarbarria = Guillerma Rustia (illegitimate) - Guillerma: Guillermo treated her as his daughter, his own flesh and blood, and she enjoyed open and continuous possession of that status from her birth in 1920 until her father’s demise; Josefa’s obituary which was prepared by Guillermo, named her as one of their children; her report card from UST identified Guillermo as her parent/guardian. - Respondents: Guillerma has no interest in the intestate estate of Guillermo as she was never duly acknowledged as an illegitimate child; Gullerma’s right to compulsory acknowledgement prescribed when Guillermo died in 1974 and that she cannot claim voluntary acknowledgement since the documents she presented were not the authentic writings prescribed by the new Civil Code. - More than a year after the death of Josefa, Guillermo filed a petition for the adoption of Guillermina and stated under oath “that he had no legitimate, legitimated, acknowledged natural children or natural children by legal fiction.” The petition was overtaken by his death. Guillermo Rustia died without a will. ISSUES 1. WON there was a valid marriage between Guillermo Rustia and Josefa Delgado 2. Who are the legal heirs of Guillermo Rustia? 3. Who are the legal heirs of Josefa Delgado? 4. Who should be issued letters of administration? HELD 1. YES Rule 131, Section 3 of the ROC provides: Sec. 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:

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(aa) That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage; Several circumstances give rise to the presumption that a valid marriage existed between Guillermo and Josefa. Their cohabitation of more than 50 years cannot be doubted. Their family and friends knew them to be married. Their reputed status as husband and wife was such that even the original petition for letters of administration filed by Luisa Delgado vda. de Danao in 1975 referred to them as “spouses.” Yet, petitioners maintain that Josefa and Guillermo had simply lived together as husband and wife without the benefit of marriage. They make much of the absence of a record of the contested marriage, the testimony of a witness attesting that they were not married, and a baptismal certificate which referred to Josefa Delgado as “Señorita” or unmarried woman. - First, although a marriage contract is considered a primary evidence of marriage, its absence is not always proof that no marriage in fact took place. Once the presumption of marriage arises, other evidence may be presented in support thereof. The evidence need not necessarily or directly establish the marriage but must at least be enough to strengthen the presumption of marriage. Here, the certificate of identity issued to Josefa as Mrs. Guillermo Rustia, the passport issued to her as Josefa D. Rustia, the declaration under oath of no less than Guillermo that he was married to Josefa and the titles to the properties in the name of “Guillermo Rustia married to Josefa Delgado,” more than adequately support the presumption of marriage. These are public documents which are prima facie evidence of the facts stated therein. No clear and convincing evidence sufficient to overcome the presumption of the truth of the recitals therein was presented by petitioners. - Second, Elisa vda. de Anson, petitioners’ own witness whose testimony they primarily relied upon to support their position, confirmed that Guillermo had proposed marriage to Josefa and that eventually, the two had “lived together as husband and wife.” This again could not but strengthen the presumption of marriage. - Third, the baptismal certificate was conclusive proof only of the baptism administered by the priest who baptized the child. It was no proof of the veracity of the declarations and statements contained therein, such as the alleged single or unmarried (“Señorita”) civil status of Josefa who had no hand in its preparation.

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Petitioners failed to rebut the presumption of marriage of Guillermo and Josefa. In this jurisdiction, every intendment of the law leans toward legitimizing matrimony. Persons dwelling together apparently in marriage are presumed to be in fact married. This is the usual order of things in society and, if the parties are not what they hold themselves out to be, they would be living in constant violation of the common rules of law and propriety. Semper praesumitur pro matrimonio. Always presume marriage. 2. Sisters, nieces and nephews Guillerma is an illegitimate child of Guillermo. As such, she may be entitled to successional rights only upon proof of an admission or recognition of paternity. She, however, claimed the status of an acknowledged illegitimate child of Guillermo only after the death of the latter on February 28, 1974 at which time it was already the new Civil Code that was in effect. Under the old Civil Code, illegitimate children absolutely had no hereditary rights. This draconian edict was, however, later relaxed in the new Civil Code which granted certain successional rights to illegitimate children but only on condition that they were first recognized or acknowledged by the parent. - Under the new law, recognition may be compulsory or voluntary. Recognition is compulsory in any of the following cases: (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 (or mother)[61] 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. [62] - On the other hand, voluntary recognition may be made in the record of birth, a will, a statement before a court of record or in any authentic writing. - Guillerma sought recognition on two grounds: first, compulsory recognition through the open and continuous possession of the status of an illegitimate child and second, voluntary recognition through authentic writing. - There was apparently no doubt that she possessed the status of an illegitimate child from her birth until the death of her putative father Guillermo Rustia. However, this did not constitute acknowledgment but a mere ground by which she could have compelled acknowledgment through the courts. Furthermore, any judicial action for compulsory acknowledgment has a dual limitation: the lifetime of the child and the lifetime of the putative parent. On the death of either, the action for compulsory recognition can no longer be filed. In this case, Guillerma’s right to claim compulsory acknowledgment prescribed upon the death of Guillermo. - The claim of voluntary recognition must likewise fail. An authentic writing, for purposes of voluntary recognition, is understood as a genuine or indubitable writing of the parent. This includes a public instrument or a private writing admitted by the father to be his. The report card from UST and Josefa’s obituary prepared by Guillermo do not qualify as authentic writings under the new Civil Code. The report card did not bear the signature of Guillermo. The fact that his name appears there as Guilerma’s parent/guardian holds no weight since he had no participation in its preparation. Similarly, while witnesses testified that it was Guillermo himself who drafted the notice of death of Josefa Delgado which was published, that published obituary was not the authentic writing contemplated by the law. What could have been admitted as an authentic writing was the original manuscript of the notice, in the handwriting of Guillermo himself and signed by him, not the newspaper clipping of the obituary. The failure to present the original signed manuscript was fatal to Guillerma’s claim. - The same misfortune befalls Guillermina, who was never adopted in accordance with law. Although a petition for her adoption was filed by Guillermo, it never came to fruition and was dismissed upon the latter’s death. We affirm the ruling of both the trial court and the Court of Appeals holding her a legal stranger to the deceased spouses and therefore not entitled to inherit from them ab intestato. - Under Article 1002 of the new Civil Code, if there are no descendants, ascendants, illegitimate children, or surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased. Therefore, the lawful heirs of Guillermo Rustia are the remaining claimants, consisting of his sisters, nieces and nephews. 3. All her siblings (full and half blood) and their children who were still alive at the time of her death

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- Little was said of the cohabitation or alleged marriage of Felisa and Ramon. The respondents chose merely to rely on the disputable presumption of marriage even in the face of such countervailing evidence as (1) the continued use by Felisa and Luis (her son with Ramon Osorio) of the surname Delgado and (2) Luis Delgado’s and Caridad Concepcion’s Partida de Casamiento identifying Luis as “hijo natural de Felisa Delgado” (the natural child of Felisa Delgado). All things considered, we rule that these factors sufficiently overcame the rebuttable presumption of marriage. Felisa and Ramon were never married. Hence, all the children born to Felisa out of her relations with Ramon and Lucio, namely, Luis and his half-blood siblings Nazario, Edilberta, Jose, Jacoba, Gorgonio and the decedent Josefa, all surnamed Delgado, were her natural children. - The law prohibits reciprocal succession between illegitimate children and legitimate children of the same parent, even though there is unquestionably a tie of blood between them. It seems that to allow an illegitimate child to succeed ab intestato from another illegitimate child begotten with a parent different from that of the former, would be allowing the illegitimate child greater rights than a legitimate child. Notwithstanding this, however, we submit that succession should be allowed, even when the illegitimate brothers and sisters are only of the halfblood. The reason impelling the prohibition on reciprocal successions between legitimate and illegitimate families does not apply to the case under consideration. That prohibition has for its basis the difference in category between illegitimate and legitimate relatives. There is no such difference when all the children are illegitimate children of the same parent, even if begotten with different persons. They all stand on the same footing before the law, just like legitimate children of half-blood relation. We submit, therefore, that the rules regarding succession of legitimate brothers and sisters should be applicable to them. Full blood illegitimate brothers and sisters should receive double the portion of half-blood brothers and sisters; and if all are either of the full blood or of the half-blood, they shall share equally. - We note, however, that the petitioners before us are already the nephews, nieces, grandnephews and grandnieces of Josefa . Under Article 972 of the new Civil Code, the right of representation in the collateral line takes place only in favor of the children of brothers

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and sisters (nephews and nieces). Consequently, it cannot be exercised by grandnephews and grandnieces. Therefore, the only collateral relatives of Josefa Delgado who are entitled to partake of her intestate estate are her brothers and sisters, or their children who were still alive at the time of her death on September 8, 1972. They have a vested right to participate in the inheritance. The records not being clear on this matter, it is now for the trial court to determine who were the surviving brothers and sisters (or their children) of Josefa at the time of her death. Together with Guillermo Rustia, they are entitled to inherit from Josefa in accordance with Article 1001 of the new Civil Code: 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 one-half. Since Josefa had heirs other than Guillermo, Guillermo could not have validly adjudicated Josefa’s estate all to himself. Rule 74, Section 1 of the ROC is clear. Adjudication by an heir of the decedent’s entire estate to himself by means of an affidavit is allowed only if he is the sole heir to the estate. 4. Carlota Delgado vda. de de la Rosa and a nominee of the nephews and nieces of Guillermo - An administrator is a person appointed by the court to administer the intestate estate of the decedent. In the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed. The order of preference does not rule out the appointment of co-administrators, specially in cases where justice and equity demand that opposing parties or factions be represented in the management of the estates, a situation which obtains here. It is in this light that we see fit to appoint joint administrators, in the persons of Carlota Delgado vda. de de la Rosa and a nominee of the nephews and nieces of Guillermo. They are the next of kin of the deceased spouses Delgado and Guillermo, respectively. BAUTISTA V. SARMIENTO G.R. No. L-45137 CUEVAS, September 23, 1985 (cha) NATURE Special civil action of Certiorari and Prohibition with Preliminary Injunction FACTS -Dr. Leticia Yap charged the defendants Fe Bautista, Milagros Corpus, and Teresita Vergere with estafa. Teresita Vergere was granted a separate trial. -The information alleges that the two accused received jewelries from Dr. Yap on consignment. The pieces of jewelry were to be sold by the accused on commission basis (as agents of Dr. Yap) and would pay or deliver the proceeds to Dr. Yap if sold, and if not, then the jewelry would be returned. The accused failed and refused and still failed and refused to return the jewelries or deliver the proceeds to Dr. Yap even after previous demands (as evidenced by the demand letter presented as evidence). Dr. Yap was the only witness presented by the prosecution. -the defendants moved to dismiss the case by way of demurrer to the evidence, believing the prosecution failed to prove their guilt beyond reasonable doubt. However, RTC denied their motion. ISSUES *Propriety of certiorari (can’t petition for certiorari if merely involves an interlocutory order, not among exception) WON there was a finding of a prima facie case of Estafa against the defendants HELD YES Ratio. A prima facie case is that amount of evidence which would be sufficient to counterbalance the general presumption of innocence, and warrant a conviction, if not encountered and controlled by evidence tending to contradict it, and render it improbable, or to prove other facts inconsistent with it, and the establishment of a prima facie case does not take away the presumption of innocence which may in the opinion of the jury be such as to rebut and control it. -There is no denying that in a criminal case, unless the guilt of the accused is established by proof beyond reasonable doubt, he is entitled to an acquittal. Put when the trial court denies petitioners' motion to dismiss by way of demurrer to evidence on the ground that the prosecution had established a prima facie case against them, they assume a definite burden. It becomes incumbent upon petitioners to adduce

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evidence to meet and nullify, if not overthrow, the prima facie case against them. This is due to the shift in the burden of evidence, and not of the burden of proof as petitioners would seem to believe. -When a prima facie case is established by the prosecution in a criminal case, as in the case at bar, the burden of proof does not shift to the defense. It remains throughout the trial with the party upon whom it is imposed — the prosecution. It is the burden of evidence which shifts from party to party depending upon the exigencies of the case in the course of the trial. This burden of going forward with the evidence is met by evidence which balances that introduced by the prosecution. Then the burden shifts back. -A prima facie case need not be countered by a preponderance of evidence nor by evidence of greater weight. Defendant's evidence which equalizes the weight of plaintiff's evidence or puts the case in equipoise is sufficient. As a result, plaintiff will have to go forward with the proof. Should it happen that at the trial the weight of evidence is equally balanced or at equilibrium and presumptions operate against plaintiff who has the burden of proof, he cannot prevail. Reasoning. The petitioners refused to present evidence, and this justified an inference of their guilt. The burden of evidence shifted on them to prove their innocence, or at least, raises a reasonable doubt as to their guilt. Disposition. WHEREFORE, finding the order complained of to be well-taken and there being no grave abuse of discretion that attended its issuance, the instant petition is DISMISSED with costs against petitioners. The Presiding Judge of the Regional Trial Court of Pampanga where this case is now assigned, is hereby ordered to continue immediately with the trial of Criminal Case No. 808 until its final disposition. SO ORDERED.

ABARQUEZ V PEOPLE G.R. No. 150762 CARPIO; January 20, 2006 (rach) NATURE

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Petition for review of the CA decision affirming RTC which found Abarquez guilty beyond reasonable doubt as an accomplice in the crime of homicide FACTS The Version of the Prosecution - The prosecution charged Abarquez with the crimes of homicide and attempted homicide in two Informations. (Quejong died; Paz was injured.) - Paz, Quejong, Tong, Abarquez’s son Bardie and Masula were on their way home from a drinking party in Sta. Mesa, Manila. They proceeded towards the exit of San Jose St. Meanwhile, there was another drinking session in front of a certain Almojuela’s 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. 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. Almojuela stabbed Quejong with a knife. Paz tried to pull up Quejong but failed. He ran away to ask for help. When Paz and his companions returned, they found Quejong still on the ground. Almojuela and Abarquez were still in the area. The Version of the Defense - Abarquez countered that he was in his residence when Almojuela’s wife informed him that the group of Paz was challenging Almojuela to a fistfight. Abarquez, being a barangay kagawad, proceeded to Almojuela’s house. When he arrived at Almojuela’s house, Abarquez saw Almojuela on the ground being strangled by Quejong. Paz was holding Almojuela’s waist and boxing him at the stomach. - Masula was near Almojuela’s 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 him 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. RTC and CA Rulings - RTC 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. Hence, he is an accomplice. - CA affirmed RTC. The CA sustained the trial court in giving more credence to the testimony of Paz. CA rejected Abarquez’s allegation that he was merely at the crime scene to pacify the quarreling parties. ISSUE/S 1. WON the prosecution was able to establish the guilt of the accused beyond reasonable doubt 2. WON the prosecution’s evidence satisfied the test of moral certainty HELD NO Ratio 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. - As an accomplice, 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. Mere presence of the accused at the crime scene cannot be interpreted to mean that he committed the crime charged. - In People v. Fabros: “To be deemed an accomplice, one needs to have had both knowledge of and participation in the criminal act.” Reasoning This 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

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(2) the performance by the accomplice of previous or simultaneous acts that are not indispensable to the commission of the crime. 2. NO Ratio When there is doubt on the guilt of an accused, the doubt should be resolved in his favor. Thus: “The prosecution has the burden of proving every single fact establishing guilt. The defense of the accused, even if weak, is no reason to convict.” - 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. “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.” Reasoning In convicting Abarquez, the RTC and CA 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’s testimony does not show that Abarquez concurred with Almojuela’s 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 Abarquez’s action as an attempt to prevent him from helping Quejong which was adopted by the RTC and CA. - 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. Abarquez’s act of trying to stop Paz does not translate to assistance to Almojuela. - Paz stated that Abarquez did not do anything to stop Almojuela. However, Paz testified that Abarquez’s son Bardie, who was one of Paz’s companions, was the one trying to pacify Almojuela.

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- 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 Almojuela’s 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 Quejong’s injury and he expected Paz to look after his own companion. Disposition Petition granted. We ACQUIT Coverdale Abarquez y Evangelista as an accomplice in the crime of homicide in Criminal Case No. 94-135055. DBP POOL OF ACCREDITED INSURANCE COMPANIES V RADIO MINDANAO NETWORK,INC G.R. No. 147039 AUSTRIA-MARTINEZ; January 27, 2006 (owen) NATURE Petition for certiorari under Rule 45 RoC seeking the review of the CA Decision affirming RTC Makati Decision reducing interest rate to 6% per annum FACTS - Radio Mindanao Network, Inc. (RADIO), who owns several broadcasting stations all over the country, filed a civil case against DBP Pool of Accredited Insurance Companies (DBP) and Provident Insurance Corporation (PROVIDENT) for recovery of insurance benefits. PROVIDENT covered RADIO’s transmitter equipment and generating set for P13,550,000.00 under a Fire Insurance Policy, while DBP covered RADIO’s transmitter, furniture, fixture and other transmitter facilities for P5,883,650.00 under a Fire Insurance Policy. - July 27, 1988 evening, RADIO’s station in Bacolod City was razed by fire causing damage in the amount of P1,044,040.00. RADIO 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) 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. The insurance companies denied the claims by maintaining that the evidence showed that the fire was caused by members of CPP/NPA. Hence, the civil case. - RTC Makati: in favor of RADIO. PROVIDENT to pay P450,000.00 plus 12% legal interest from March 2, 1990 the date of the filing of the Complaint. DBP to pay P602,600.00 plus 12% legal interest from March 2, 1990. - CA: affirmed the decision, with the modification that the applicable interest rate reduced to 6% per annum. MFR denied. - DBP assails: factual finding of both RTC and CA that its evidence failed to support its allegation that the loss was caused by an excepted risk, (members of the CPP/NPA) RTC + testimony of witnesses Lt. Col. Torres and SPO3 Rochar, who were admittedly not present when the fire occurred, was 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 it and then lit it. After that, they went out shouting “Mabuhay ang NPA”. + persons whom they investigated and actually saw the burning of the station were not presented as witnesses + documentary evidence, which includes a letter released by the NPA merely mentions some dissatisfaction with the activities of some people in the media in Bacolod, do not satisfactorily prove that the author of the burning were members of the NPA.. CA + 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 Magsilang claiming responsibility for the burning of DYHB + fire investigation report dated July 29, 1988 + testimonies of Lt. Col. Torres and SFO III Rochas ISSUES

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1. WON 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 is deemed sufficient (Entry in Official Records) 2. WON the testimony of Lt. Col. Torres is admissible 3. WON the letter of 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 admissible (Admission & Confessions) 4. WON the excepted risk was not proven by DBP 5. WON 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 is an exception to the hearsay rule as part of res gestae (Weight and Sufficiency of Evidence)

HELD 1. NO - The documentary evidence may be considered exceptions to the hearsay rule, being entries in official records, nevertheless, none of these documents categorically stated that the perpetrators were members of the CPP/NPA. > police blotter: “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,” > certification from the Bacolod Police station: “… some 20 or more armed men believed to be members of the New People’s Army NPA,” > fire investigation report: “(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 were the ones responsible …” - 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. 2. NO - The only person who seems to be so sure that that the CPP-NPA had a hand in the burning of DYHB was Lt. Col. Torres. However, though his testimony is persuasive, it cannot be admit 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

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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. 3. NO - Under Section 22, Rule 130 RoC. An admission is competent only when the declarant, or someone identified in legal interest with him, is a party to the action. 4. YES - 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. - Consequently, it is sufficient for RADIO to prove the fact of damage or loss. Once RADIO makes out a prima facie case in its favor, the duty or the burden of evidence shifts to DBP to controvert RADIO’S prima facie case. In this case, since DBP alleged an excepted risk, then the burden of evidence shifted to DBP 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 5. NO - 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. 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 crossexamination 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. - 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. - 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. - Admissibility of evidence should not be equated with its weight and sufficiency. 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. - 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-à-vis the other evidence on record. Disposition Petition is DISMISSED.

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PEOPLE V VALLA G.R. No. 111285 QUISUMBING; January 24, 2000 (apple) NATURE Appeal from a decision of the RTC FACTS -On April 14, 1991, 9 am: Myra Pines (12 y/o), while passing by the ricefield in Brgy Ilayang Tayuman, heard a voice coming from the direction of the forested area of the place, and it seemed to her that someone was being strangled. -She recognized the voice as belonging to her playmate, Dyesebel de la Cruz (8 y/o). Frightened by such thought, Myra scampered and proceeded to the crossing where she was originally headed. -4 pm: Dyesebel's mother, Mila, went to Brgy Captain Aristeo Allarey to report that her daughter was missing. -A search party was organized by Allarey, joined by Dyesebel's father, Gonzalo -Captain Allarey learned from Gonzalo that, earlier, Dyesebel was in the company of accused-appellant Vicente Valla, and that both of them were tasked to watch the ricefield. They went to the ricefield but appellant was not there. Allarey learned from a barangay tanod that appellant was drinking liquor in a friend's house. He summoned appellant but the latter failed to immediately report to him -Allarey and his party started their search that afternoon, and resumed the following morning -While they was searching for Dyesebel, they were joined by appellant who trailed behind them. -At around 11 am, they found Dyesebel's body near the river, with her neck blackened and her vagina bloodied. She was still wearing her dress but her panty had been pulled down to her mid-thigh. -Allarey and his companions confronted appellant, who admitted that he raped and killed Dyesebel. Thereafter, he addressed Dyesebel's father, in the presence of

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Allarey and company, offering his own daughter in payment of Dyesebel's life which he took, and begged for forgiveness. -On August 14, 1990, appellant was charged with the crime of "rape with murder" -Upon arraignment, appellant, duly assisted by counsel de oficio, entered a plea of not guilty -Myra Pines, the victim's 12 year-old playmate, who heard the victim's cries as she was being strangled, and Aristeo Allarey, Gonzalo de la Cruz, Reynaldo Merle, members of the search party, were among those who were presented by the prosecution as witnesses -TC found appellant guilty of the crime of "rape with homicide" -Hence, the present appeal -In his brief, appellant claims that the testimony of prosecution witness Allarey was inconsistent since on direct examination, Allarey narrated that when he summoned appellant, the latter did not immediately appear, but on cross-examination, he said that appellant immediately reported to him. Appellant also contends that Merle's testimony that appellant was "tulala" at the time he confessed to the commission of the crime was inconsistent with appellant's alleged begging for forgiveness for the crime ISSUE WON the testimonies of the prosecution witnesses should be given full faith and credence despite the inconsistencies HELD Yes. -As consistently held by the Court, the trial judge's evaluation of the testimony of a witness is generally accorded not only the highest respect, but also finality, unless some weighty circumstance has been ignored or misunderstood but which could change the result. -Having had the direct opportunity to observe the witness on the stand, the trial judge was in a vantage position to assess his demeanor, and determine if he was telling the truth or not. -The alleged inconsistency in the testimony of Allarey as to whether appellant immediately reported to him after being summoned, and in the testimony of Merle that appellant was "tulala" at the time he admitted responsibility for the crime, merely refer to minor details which do not in actuality touch upon the "whys" and "wherefores" of the crime committed. -Inconsistencies in the testimony of witnesses when referring only to minor details and collateral matters do not affect the substance of their declaration, their veracity, or the weight of their testimony. Although there may be inconsistencies on minor details, the same do not impair the credibility of the witnesses where there is consistency in relating the principal occurrence and positive identification of the assailants. -In fact, some minor inconsistencies could show that the witness was not previously coached so as to tailor his testimony, and thus they serve as badges of credibility. -Further, the prosecution witnesses, particularly the barangay officials, had no motive to falsely testify against appellant. -Also, the declaration of appellant acknowledging his guilt of the offense may be given in evidence against him under Section 33 of Rule 130 of the Revised Rules of Court. Note that his extrajudicial confession is corroborated by the corpus delicti as required by Section 3 of Rule 133. -The statement of the accused asking for forgiveness and even offering his own daughter in exchange for his crime may also be regarded as part of the res gestae under Section 42 of Rule 130 of the Rules of Court. Dispostion Assailed decision affirmed REPUBLIC, represented by PCGG v. OMB DESIERTO GR 135123 January 22, 2007; AZCUNA (Ina) FACTS PCGG filed a complaint against private respondents (some Marcos cronies) for violation of Anti-Graft and Corrupt Practices Act (RA 3019). Ombudsman (OMB) dismissed the complaint for lack of factual basis to charge them of the offense charged. It is alleged that, on March 11, 1982, private respondent Herminio T. Disini, a personal friend and golfing partner of the late President Ferdinand E. Marcos, gave to the former Chief Executive shares of stock of Vulcan Industrial and Mining Corporation

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(VIMC) and The Energy Corporation (TEC) worth P40M and P25M, respectively, which shares of stock were in the name of Herdis Group, Inc. (HGI for short), a local corporation controlled by Disini. The stock certificates covering the above mentioned shares of stocks were among the documents found in Malacañang in the possession of the late President when he fled to Hawaii sometime in February 1986. PCGG submitted the following in support of its charge: 1. letter of Herminio Disini, wherein shares of stocks of VIMC and TEC, both subsidiaries of Herdis Group, Inc., were turned over by him to the late President Marcos; 2. an affidavit by one of the private respondents, Manahan (The affidavit stated the divestment plan to turn over shares to Marcos); 3. the stock certificates of VIMC and TEC found in Malacañang after the late President fled the country. OMB, in its dismissal of the complaint, considered only #1 above and ignored #s 2 and 3. OMB said the letter written by Disini to Marcos had no evidentiary value because it wasn’t identified nor authenticated by a qualified person, and that the contents are pure hearsay because it wasn’t affirmed by Disini. ISSUE WON OMB acted without or in excess of his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, in issuing the assailed resolution and order RULING YES. The rule is OMB ruling will not be overturned as long as substantial evidence supports it. However, where there appears to be a grave abuse of discretion, as there appears to be here, the Court will so declare and direct that the proper complaint or information be filed. The resolution of dismissal is not based on the evidence presented and is not warranted by the facts thus far available to OMB. These documents (#s 2 and 3 above) constituted probable cause for violation of Sections 3 and 4 of Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act. Stated in the affidavit was a divestment plan to turn over several shares of VIMC and TEC to the former President. Moreover, the stock certificates showed that private respondents, in conspiracy with

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the former President, were the authors of the acts subject of the complaint. The affidavit of private respondent Manahan relates facts that are based on personal knowledge and perception, the affiant having held important positions in Herdis Group, Inc. As one of the trusted men of private respondent Herminio Disini, he knew very well the latter’s handwriting and signature. Hence, private respondents could not simply feign ignorance of the divestment plan, because all of them appear to have approved it. Private respondent Manahan himself appears to have prepared the aide memoir, with the assistance of his subordinates, prior to its submission to private respondent Herminio Disini. Probable cause does not mean actual and positive cause or import absolute certainty. It is merely based on opinion and reasonable belief. It has been defined as the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge. The wide latitude in determining the existence of probable cause or the lack of it cannot be exercised arbitrarily. The Ombudsman must weigh facts and circumstances without resorting to the calibrations of our technical rules of evidence. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance of. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and, definitely not on evidence establishing absolute certainty of guilt. A finding of probable cause is not a pronouncement of guilt. VALEROSO V. PPL G.R. No. 164815 Feb. 22, 2008; Reyes, R.T. (Chrislao) Facts: -SPO2 Disuanco received a dispatch order from the desk officer. The order directed him & 3 other policemen to serve a warrant of arrest vs. Sr. Insp. Valeroso in a case for kidnapping with ransom. -When they caught him, they put him under arrest, informed him of his constitutional rights, and bodily searched him. Found tucked in his waist was a Charter Arms, bearing a Serial Number with 5 live ammunition. -A verification of the subject firearm at the Firearms and Explosives Division revealed that it was not issued to Valeroso but to a certain Salvatierra. Deriquito, the records verifier, presented a certification to that effect signed by Roque, chief records officer of the Firearms and Explosive Division. -Valeroso was then charged with illegal possession of firearm and ammunition under Presidential Decree (P.D.) No. 1866, as amended. -Valeroso, with assistance of counsel, pleaded not guilty when arraigned. Trial on the merits ensued. -SPO2 Disuanco and Deriquito testified for the prosecution in the manner stated above. -Upon the other hand, Valeroso had a different version was supplied by the combined testimonies of petitioner Sr. Insp. Valeroso, SPO3 Timbol, Jr. and Yuson. -According to Valeroso, the search done in the boarding house was illegal. The gun seized from him was duly licensed and covered by necessary permits. -SPO3 Timbol, Jr. testified that he issued to Valeroso a Memorandum Receipt covering the subject firearm and its ammunition. This was upon the verbal instruction of Col. Moreno. SPO3 Timbol identified his signature on the said receipt. -RTC and CA found him guilty. Hence this petition before the SC. Issue: WON CA ERRED IN AFFIRMING HIS CONVICTION DESPITE THE ABSENCE OF PROOF BEYOND REASONABLE DOUBT. Ruling: NO. CA did not err. Valeroso IS GUILTY. In illegal possession of firearm and ammunition, the prosecution has the burden of proving the twin elements of (1) the existence of the subject firearm and ammunition, and (2) the fact that the accused who possessed or owned the same does not have the corresponding license for it. The prosecution was able to discharge its burden.

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-The existence of the subject firearm and its ammunition was established through the testimony of SPO2 Disuanco. Defense witness Yuson also identified the firearm. Its existence was likewise admitted by no less than Valeroso himself. As for Valeroso’s lack of authority to possess the firearm, Deriquito testified that a verification of the Charter Arms Caliber .38 bearing a Serial No. revealed that the seized pistol was not issued to Valeroso. It was registered in the name of a certain Salvatierra. As proof, Deriquito presented a certification signed by Roque, the chief records officer of the same office. -The Court on several occasions ruled that either the testimony of a representative of, or a certification from, the PNP Firearms and Explosive Office attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of possession of illegal firearms. The prosecution more than complied when it presented both. The certification from the Firearms and Explosives Division is an exception to the hearsay rule by virtue of Rule 130, Section 44 of the Rules of Court (Entries in official records). AS REGARDS OIUR TOPIC ON WEIGHT AND SUFFICIENCY OF EVIDENCE -Petitioner, however, raises several points which he says entitles him to no less than an acquittal. The assessment of credibility of witnesses lies with the trial court. -Valeroso’s version of the manner and place of his arrest goes into the factual findings made by the trial court and its calibration of the credibility of witnesses. However, as aptly put by Justice Ynares-Santiago in People v. Rivera: x x x the manner of assigning values to declarations of witnesses on the witness stand is best and most competently performed by the trial judge who had the unmatched opportunity to observe the witnesses and assess their credibility by the various indicia available but not reflected on record. xxx We have consistently ruled that when the question arises as to which of the conflicting versions of the prosecution and the defense is

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worthy of belief, the assessment of the trial courts are generally viewed as correct and entitled to great weight. Furthermore, in an appeal, where the culpability or innocence of the accused depends on the issue of credibility of witnesses and the veracity of their testimonies, findings of the trial court are given the highest degree of respect if not finality. -The TC found the prosecution version worthy of credence and belief. SC finds no compelling reason not to accept its observation on this score. The pieces of evidence show that petitioner is not legally authorized to possess the subject firearm and its five (5) ammunition. -Second, Valeroso insists that he is legally authorized to possess the subject firearm and its ammunition on the basis of the Memorandum Receipt issued to him by the PNP Narcotics Command. -Although Valeroso is correct in his submission that public officers like policemen are accorded presumption of regularity in the performance of their official duties, it is only a presumption; it may be overthrown by evidence to the contrary. The prosecution was able to rebut the presumption when it proved that the issuance to petitioner of the Memorandum Receipt was anything but regular. Failure to offer an unlicensed firearm as evidence is not fatal provided there is competent testimony as to its existence. -Third, Valeroso claims that the subject firearm and ammunition should have been excluded as evidence because they were not formally offered by the prosecution in violation of Section 34, Rule 132 of the Rules of Court. Valeroso’s contention has no leg to stand on. Contrary to Valeroso’s claim, the subject firearm and its 5 live ammunition were offered in evidence by the prosecution. Even assuming arguendo that they were not offered, Valeroso’s stance must still fail. The existence of an unlicensed firearm may be established by testimony, even without its presentation at trial. In People v. Orehuela, the non-presentation of the pistol did not prevent the conviction of the accused. ALFONSO T. YUCHENGCO AND Y REALTY CORPORATION V SANDIGANBAYAN ET AL CARPIO MORALES; JANUARY 20, 2006 (jaja) FACTS These five consolidated petitions pray for the nullification of certain issuances of the Sandiganbayan in Civil Case No. 0002, “Republic of the Philippines v. Estate of Ferdinand E. Marcos, et al.” The complaint in Civil Case No. 0002 (or the case) was filed before the Sandiganbayan on July 16, 1987 by the Republic of the Philippines (the Republic) through the Presidential Commission on Good Government (PCGG) against former President and Mrs. Marcos, their three children, and some other individuals. The complaint was later amended to implead additional defendants. The case is for the recovery of alleged ill-gotten wealth of the Marcoses, among which are shares of stock in the Philippine Telecommunications Investment Corporation (PTIC): 76,779 shares in the name of Ramon U. Cojuangco, 21,525 shares in the name of Imelda O. Cojuangco, and 111,415 shares in the name of Prime Holdings Incorporated (PHI). PTIC is the biggest stockholder of PLDT, it owning some 28% of the outstanding shares in PLDT at the time Civil Case No. 0002 was filed. In the course of the proceedings in Civil Case No. 0002, the first three petitions assailing interlocutory orders of the Sandiganbayan were filed before this Court. Thus, the petitions in G.R. Nos. 149802 and 150320, filed by Alfonso Yuchengco and Y Realty Corporation, complainants-in-intervention in Civil Case No. 0002, assail via petition for certiorari orders and resolutions of the Sandiganbayan denying their motions to suspend trial pending discovery proceedings and to re-set trial dates (with alternative prayer for a change in the order of trial), and declaring them as having waived their right to present evidence. The petition in G.R. No. 150367, filed by the Republic, assails via petition for certiorari the Sandiganbayan Orders denying its Respectful Motion for Additional Time to Complete the

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Presentation of Evidence and directing it to submit its offer of evidence within 30 days. During the pendency of these first three petitions, the Sandiganbayan continued with the proceedings in Civil Case No. 0002, no restraining order enjoining the same having been issued by this Court. The Sandiganbayan, still during the pendency of the first three petitions, promulgated in Civil Case No. 0002 a Partial Decision on May 6, 2002 dismissing the complaint of plaintiff Republic of the Philippines on the PLDT shares subject of separate trial for lack of merit, granting the Motion for Summary Judgment [filed by Imelda Cojuangco, et al], and dismissing the Complaint-in-Intervention [filed by the Yuchengcos]. The last two of the five petitions at bar, both for review on certiorari, were thereupon filed. The petition in G.R. No. 153207 filed by the complainants-in-intervention Yuchengcos, and that in G.R. No. 153459 filed by the Republic, both challenge the Partial Decision. Petitioners in G.R. Nos. 149802, 150320 and 150367 contend they were denied due process when the Sandiganbayan in effect directed them to terminate the presentation of their respective evidence. There is no disagreement with respect to the dispositiondismissal by the minority of the first three petitions – the first having become moot, and the second and third for lack of grave abuse of discretion on the part of the Sandiganbayan. There is also no disagreement with respect to the disposition-denial by the minority of the fourth petition (G.R. No. 153207) in the absence of reversible error on the part of the Sandiganbayan. It is with respect to the disposition-denial by the minority of the fifth petition (G.R. No. 153459) insofar as it denied the prayer of the Republic for a judgment ordering the Estate of Ramon U. Cojuangco (Cojuangco), Imelda O. Cojuangco, PHI, their assigns, nominees and agents to reconvey to the Republic 111,415 PTIC shares registered in the name of PHI that the majority does not agree, in light of the immediately following discussions FACTUAL BACKGROUND OF PHI AND ITS DEALINGS WITH PTIC

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PHI was registered on October 5, 1977 with the following five (5) incorporators: Jose D. Campos, Jr. (son of Jose Yao Campos), Rolando Gapud (Gapud), Renato Lirio (Lirio), Ernesto Abalos (Abalos), and Gervacio Gaviola (Gaviola), with 400 shares each, with a par value of P100 per share. The total amount of capital stock subscribed was thus P200,000.00, P50,000.00 of which was actually paid. [5] Its place of business was at 66 United Street, Mandaluyong, Metro Manila. The five PHI incorporators, in their capacity as stockholders, elected themselves as directors on October 10, 1977. On even date, they elected the following as officers of the corporation: Rolando C. Gapud Jose D. Campos, Jr. President Gervasio T. Gaviola Francisco G. De Guzman Rodolfo R. Dimaano Secretary President ViceTreasurer Secretary Assistant On April 20, 1978, the PTIC Board of Directors granted Cojuangco and Rivilla authorization to transfer their PTIC shares to PHI. Cojuangco thereafter ceded to PHI 77,719 PTIC shares registered in his name via two separate deeds of assignment both dated May 2, 1978, one for 44,023 shares and the other for 33,696 shares. Rivilla likewise conveyed PTIC 33,696 shares registered in his name to PHI via a deed of assignment also dated May 2, 1978. Thus, a total of 111,415 PTIC shares was transferred to PHI on May 2, 1978. Gapud and Jose D. Campos, Jr. later assigned all their shares in PHI (400 shares each) to Cojuangco and PTIC Director Oscar Africa (Africa), respectively, via two separate deeds of assignment dated February 18, 1981. On May 9, 1981, Cojuangco and Africa were elected directors of PHI, replacing Gapud and Jose D. Campos, Jr., while the other directors – Lirio, Abalos, and Gaviola – remained as such. On even date, Cojuangco and Africa were elected by the PHI Board of Directors as President and Vice-President, respectively, while de Guzman and Gaviola remained as Secretary and Treasurer, respectively. Subsequently, by Deed of Assignment dated June 1983 (the day is not indicated), Africa transferred all his 400 PHI shares — 240 to Antonio Cojuangco and 160 to Trinidad Cojuangco Yulo. On even date, the remaining incorporators on the board of directors – Lirio, Abalos, and Gaviola – each executed a deed of assignment transferring their PHI shares to members of the Cojuangco family. Thus Lirio transferred 240 shares to Antonio Cojuangco and 160 to Trinidad C. Yulo; Abalos transferred 320 shares to Ramon O. Cojuangco, Jr. and 80 to Miguel O. Cojuangco; and Gaviola transferred 320 shares to Ma. Victoria O. Cojuangco Yulo and 80 also to Antonio Cojuangco. Significantly, respondents in G.R. No. 153459, namely: Estate of Ramon Cojuangco, Imelda O. Cojuangco, PHI, and Imelda R. Marcos all agree with petitioner Republic that PHI has an undisclosed beneficial owner, their only disagreement being who this owner is. The Cojuangcos and PHI in their Comment proffer that the beneficial owners are the Cojuangcos. Imelda

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Marcos, on the other hand, consistent with the theory of petitioner Republic, claims that she, her late husband President Marcos, and their family were the beneficial owners of PHI. ISSUE WON the preponderance of evidence lies with the Republic HELD YES. E.O. No. 14-A clearly states that the degree of proof required in cases such as the one at bar is preponderance of evidence. Sec. 3. The civil suits to recover unlawfully acquired property under Republic Act No. 1379 or for restitution, reparation of damages, or indemnification for consequential and other damages or any other civil actions under the Civil Code or other existing laws filed with the Sandiganbayan against Ferdinand E. Marcos, Imelda R. Marcos, members of their immediate family, close relatives, subordinates, close and/or business associates, dummies, agents and nominees, may proceed independently of any criminal proceedings and may be proved by a preponderance of evidence. (Underscoring supplied) The Sandiganbayan, therefore, was not to look for proof beyond reasonable doubt, but to determine, based on the evidence presented, in light of common human experience, which of the theories proffered by the parties is more worthy of credence. The case of Joaquin v. Navarro [instructs: x x x “Juries must often reason," says one author, "according to probabilities, drawing an inference that the main fact in issue existed from collateral facts not directly proving, but strongly tending to prove, its existence. The vital question in such cases is the cogency of the proof afforded by the secondary facts. How likely, according to experience, is the existence of the primary fact if certain secondary facts exist?" (1 Moore on Facts, Sec. 596.) The same author tells us of a case where "a jury was justified in drawing

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Meanwhile, 54,349 shares in another corporation, PTIC, were “contributed to and/or abandoned” by one of its stockholders, General Telephone and Electronics (GTE), an American corporation, in favor of PTIC. On December 20, 1977, the PTIC Board of Directors resolved to sell such 54,349 shares to its stockholders in proportion to their holdings. No stockholder, apart from Cojuangco, PTIC President and member of its Board of Directors, expressed interest in purchasing the shares. All the 54,349 shares were then transferred to his name. Cojuangco and Luis Tirso Rivilla (Rivilla), another stockholder of PTIC, together with PHI President Gapud, forged an agreement dated January 27, 1978 referring to the “various discussions during which [Cojuangco and Rivilla] offered to sell and [PHI] agreed to purchase partially paid subscriptions and common shares of [PTIC].” The agreement which indicated the basic terms and conditions of the transaction states that the number of PTIC shares which Cojuangco and Rivilla were prepared to sell to PHI was “111,415 common shares representing 46.1250% of the subscribed and outstanding shares of PTIC.”

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the inference that the person who was caught firing a shot at an animal trespassing on his land was the person who fired a shot about an hour before at the same animal also trespassing." That conclusion was not airtight, but rational. In fact, the circumstances in the illustration leave greater room for another possibility than do the facts of the case at hand. In conclusion, the presumption that Angela Joaquin de Navarro died before her son is based purely on surmises, speculations, or conjectures without any sure foundation in the evidence. The opposite theory - that the mother outlived her son - is deduced from established facts which, weighed by common experience, engender the inference as a very strong probability. Gauged by the doctrine of preponderance of evidence by which civil cases are decided, this inference ought to prevail. x x x (Emphasis and underscoring supplied) The evidence presented by the parties shows that the preponderance clearly lies with the Republic, but the Sandiganbayan grossly misappreciated it and, therefore, committed a reversible error. In Ramos, Sr. v. Gatchalian Realty, Inc., this Court ruled: Once again, we apply the rule that findings of facts of the Court of Appeals are binding on the Supreme Court and will not be overturned when supported by the evidence on record save in the known exceptions such as gross misappreciation of the evidence or misapprehension of facts. (Emphasis and underscoring supplied) Moreover, the case of Salazar v. Gutierrez teaches: It bears repeating that the finding thus made, although apparently factual in character, is premised upon supposed absence of evidence, and therefore is reviewed by this Court if the premise is clearly contradicted by the record or unjustified upon other considerations which logically lead to a different conclusion, but which the decision under review did not take into account. (Underscoring supplied) THE TESTIMONIES OF CAMPOS, GAPUD, AND ATTY. FRANCISCO DE GUZMAN (De Guzman) ESTABLISH THE MARCOSES’ OWNERSHIP OF PHI SWORN STATEMENT AND DEPOSITION OF JOSE YAO CAMPOS It is not disputed that Jose Yao Campos (hereinafter referred to as Campos) is a former Marcos crony who, after the February 1986 EDSA Revolution, surrendered to the government substantial assets which he confessed to have held in behalf of Marcos. He is one of the Republic’s witnesses in the case. The Sandiganbayan, after finding that “almost all the documents offered by the Republic are photocopies” (underscoring supplied) and ruling that the same were unreliable, omitted any discussion of the evidentiary weight of the Republic’s testimonial evidence, including the deposition-statement of Campos. Notwithstanding Campos’ testimony linking Marcos to PHI (and thus to the subject PTIC shares pertaining to PHI), the graft court concluded that “[t]here is no competent evidence to tie defendant Ferdinand Marcos with PTIC.” In so ruling, the Sandiganbayan grossly misappreciated, it bears repeating, the weight of the evidence presented by the Republic, reducing to naught Campos’ categorical statement that PHI is one of the corporations he organized in behalf of Marcos and that in “[a]ll the corporations [he] organized – that was the standard policy – that we surrendered [a Deed of Trust or Deed of Assignment] direct to President Marcos.” His sworn admission that PHI was a dummy corporation organized for former President Marcos constitutes convincing evidence that PHI was beneficially owned by Marcos. DEPOSITION OF GAPUD Gapud, one of the incorporators of PHI, affirmed Campos’ sworn statement quoted above that he is his

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associate. His deposition taken at the Philippine Consulate Office in Hong Kong on October 18-20 and December 11-12, 1995 substantially corroborates the statements of Campos and further establishes that PHI was a dummy corporation of the Marcoses. As with the testimony of Campos, the Sandiganbayan did not explain its reasons for holding that, notwithstanding the existence of Gapud’s testimony in the records, there is no competent evidence to support the Republic’s thesis. The minority, however, passing upon the above-quoted testimony, expresses the view that Gapud contradicted himself with respect to the disposition of his 400 shares in PHI, since “it would have been implausible for him to make the assignment to Mr. Cojuangco if the covering certificates had previously been delivered to Pres. Marcos.” (Underscoring supplied) This argument, however, misinterprets the statement of Gapud, since he did not specifically state that covering certificates were delivered to President Marcos, but only that “shares of stock and/or the assignments indorsed in blank were delivered to President Marcos by Mr. Campos” (emphasis and underscoring supplied). Gapud was thus proferring the possibility that only deeds of assignment were delivered to the former President. Hence, there is no reason to read a contradiction into his statements. Significantly, de Guzman would confirm in his testimony that only deeds of assignment, and not stock certificates, were issued in PHI, as will be discussed below. Gapud’s statement relating the subsequent execution of deeds of assignment to Cojuangco and his kin does not detract from the prior delivery of blank deeds to President Marcos, especially so in this case where, by Gapud’s own recounting, he and his co-incorporators executed the 1981 and 1983 deeds of assignment with the knowledge and authorization of the same person to whom the earlier deeds were delivered – President Marcos. Gapud’s statements thus complement those made by Campos, further strengthening the Republic’s claim that PHI is a corporation beneficially owned by the Marcoses. DEPOSITION OF DE GUZMAN

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The Republic also presented the deposition of de Guzman, former corporate secretary of PHI, taken at the Mandarin Hotel, Makati City on June 12, 2001. His testimony also sheds light on the origins and organization of PHI, and substantially corroborates the statements of Campos and Gapud. The statements of de Guzman support the thesis Republic that PHI is a dummy of the Marcoses, it having been completely organized by associates of Campos, who had categorically testified to having organized PHI for the benefit of President Marcos. On the other hand, there is hardly any evidence on Cojuangco’s role in the organization of PHI to substantiate the thesis that the same was beneficially owned by him. By affirming that PHI was organized by Campos, by identifying all the incorporators and himself as Campos associates, and by revealing that the office of PHI was within the premises of Campos – controlled UNILAB, de Guzman substantially corroborates the Campos and Gapud testimonies. Furthermore, de Guzman also confirmed that all the incorporators of PHI held their shares as mere nominees and that there was a standard operating procedure followed in the holding companies organized by Campos regarding the issuance of deeds of assignment in blank, which is again consistent with the other testimonies mentioned. Notably, de Guzman clarified that no stock certificates were issued in PHI, but only deeds of assignment, which sheds light on the statement of Gapud earlier adverted to. De Guzman may have differed with Campos and Gapud insofar as he stated that the original of the deeds remained with the records of PHI and a xerox copy was handed to its Treasurer Gaviola. This should not, however, obscure the general consistency of his statements with those of Campos’ and Gapud’s, especially when it is considered that, as de Guzman himself testified, the records were under the control of Campos. The Republic’s thesis that President Marcos is the beneficial owner of PHI “is deduced from established facts which, weighed by common experience, engender the inference as a very strong probability.” Only a Marcos ownership can make sense of the circumstances surrounding the origins of PHI, especially its close ties with UNILAB and the Camposes. Only a Marcos ownership of PHI can plausibly account for the substantially corroborated admissions of Campos and Gapud that they organized PHI in behalf of Marcos. Indeed, even the minority had to acknowledge that Gapud was a mere nominee, merely denying that his principal was Marcos, contrary to Gapud’s own admission. However, perhaps unable to account for the undeniable fact that all the incorporators of PHI are Campos associates, the minority implies that the true owner was neither Marcos nor Cojuangco, but Campos himself – contrary to the Cojuangcos’ submission that Ramon Cojuangco was the beneficial owner, and to Campos’ admission that he organized PHI for President Marcos. Moreover, the thesis that Marcos owned PHI is able to make more sense of the undisputed assignment of PTIC shares to PHI by Cojuangco. If PHI were beneficially owned by Cojuangco, then the transfer of these PTIC shares to PHI would merely have been a transfer to himself. On the other hand, on the thesis that PHI is beneficially owned by Marcos, the assignment thereof to PHI was a transfer from Cojuangco to President Marcos. On the basis of the evidence, therefore, President Marcos owned PHI and all the incorporators thereof acted under his direction. Once this is acknowledged, the following conclusions inevitably follow: 1. Cojuangco was elected President and took over the management of PHI in 1981 with the cooperation of the Marcos nominees who, it must be emphasized, still held the majority stockholding as of that date; 2. As the remaining incorporators on the Board divested their shares only in 1983, Cojuangco managed a Marcos-controlled corporation for at least two years; 3. The simultaneous divestment of shares by the three remaining incorporators on the Board to Cojuangco’s close relatives in 1983 were with the knowledge and authorization of their principal – President Marcos.

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Clearly, all these circumstances mark out Cojuangco either as a nominee of Marcos as was Gapud whom he replaced as President of PHI or, at the very least, a close associate of Marcos. As such, the PCGG which is charged, under E.O. No. issued by President Aquino pursuant to her legislative powers under the Provisional Constitution, with assisting the President in regard to, inter alia, The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, whether located in the Philippines or abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled by them, during his administration, directly or through nominees, by taking undue advantage of their public office and/or using their powers, authority, influence, connections or relationship (Underscoring supplied), can and must recover for the Republic the 111,415 PTIC shares being held by PHI, they bearing the character of ill-gotten wealth whether they be in the hands of Marcos or those of Cojuangco. On the other hand, respecting the thesis that PHI was, from its inception, beneficially owned by Ramon Cojuangco, the Cojuangcos can only point to the deeds of assignment of PHI shares to members of their family as confirming the same. The Sandiganbayan considered these deeds as competent evidence, as opposed to the purported lack of such evidence on the part of the Republic. The most these deeds could show, however, is that the Cojuangcos acquired PHI shares in the years 1981 and 1983, long after the 111,415 PTIC shares were acquired in 1978 by PHI. On the decisive question of whether the incorporators who organized PHI in 1977 acted as Marcos (or Cojuangco) nominees, these deeds are absolutely silent. In marked contrast, the testimonies of Campos, Gapud, and de Guzman, persons who actually participated in the formation and early years of operation of PHI, constitute evidence that directly addresses the critical issue.

of the

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Underlying the finding of the Sandiganbayan that the subject PHI shares are not part of the Marcos ill-gotten wealth is its reliance on the supposed determinative indicia set out in Bataan Shipyard & Engineering Co., Inc. (BASECO) v. PCGG. It bears noting that, in BASECO, this Court determined the extent of the powers vested in the PCGG for the purpose of preserving suspected ill-gotten wealth. These were in the nature of provisional remedies, e.g., sequestration, freeze orders, and the like, preparatory to a judicial finding that such properties are indeed ill-gotten. It is unlike the case at bar where this Court will now finally determine on the merits whether a particular property is, in fact, ill-gotten. A reading of BASECO would reveal that it did not intend to establish evidentiary norms for all future cases involving the Marcos wealth. Nowhere does it state that the failure of the Republic to present as evidence blank deeds of assignment is fatal to its cause. The most that can be gathered from BASECO in this regard is that this Court therein found that there were blank deeds of assignment and stock certificates endorsed in blank recovered in Malacañang which were considered prima facie evidence to justify the exercise of PCGG’s powers of sequestration, freeze order, and the like. Nowhere in BASECO is any pronouncement that only such kind of evidence suffices to prove Marcos ownership of corporations, to the exclusion of other evidence such as the deposition-sworn statements of the confessed Marcos cronies in the instant case. DISPOSITION Petition of the Republic of the Philippines in G.R. No. 153459 GRANTED to the extent that it prays for the reconveyance to the Republic of 111,415 PTIC shares registered in the name of PHI; Petitions in G.R. Nos. 149802, 150320, 150367, and 153207 DENIED SPECIAL RULES Rule re Minority PEOPLE v. FILOMINO L. VILLANUEVA G.R. No. 169643 CALLEJO, SR; April 13, 2007 (edel) Nature: Automatic Review Facts: (As per the Prosecution) -BBB is the appellant’s daughter and was born on January 23, 1983. In the evening of Dec.23, 1997, BBB, together with her parents and her three brothers, spent the night in her aunt’s house. Her mother left to attend a wake. While inside the room with her brothers (who were then sleeping), BBB asked for a glass of water from appellant. After drinking, she felt dizzy. When she woke up the following morning, her breasts and private part were aching, but she did not do anything because she thought that she had just been bitten by ants. At around midnight in the first week of February 1998, while BBB and her brothers were inside their room sleeping, appellant went inside, raised (BBB�s) blouse up to her neck and sucked her breasts.7 He likewise pulled down her shorts and panty up to her thighs;8 kissed her lips;9 went on top of her;10 and inserted his penis into her vagina.11 After satisfying his lustful desire, appellant told her that he would kill her and her family if she reported the matter to anyone.12 BBB did not report the incident. She finally told her mother when she learned that she was pregnant. Her mother cried and got mad.13 BBB gave birth in October 1998. The child was later adopted by her cousin.14 On July 7, 1998, BBB executed a Sinumpaang Salaysay15 before SPO1 Nixon Cruz of the Philippine National Police. On the same day, SPO4 Cezar T. Mangune, the Chief Investigator, filed a Criminal Complaint16 against appellant before the 2nd Municipal Circuit Trial Court (MCTC) of Bamban-CapasConcepcion, Capas Tarlac. A preliminary investigation was immediately conducted. On even date, the MCTC issued a Resolution17 finding prima facie evidence of rape. The Provincial Prosecutor sustained the findings of the MCTC in a Resolution18 dated July 20, 1998. Two (2) separate Informations were then filed with the RTC of Capas, Tarlac, Branch 66, docketed as Criminal Cases Nos. 1288-(98) and 1289-(98). The Informations contain the following accusatory portions: That on or about December 23, 1997, in the x x x Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court the above-named accused did then and there willfully, unlawfully, and feloniously, by means of force and intimidation,

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succeed in having sexual intercourse with his daughter BBB, a minor 15 years old. xxxx That sometime in the first week of February 1998, in the x x x Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court the above-named accused did then and there willfully, unlawfully and feloniously, by means of force and intimidation, succeed in having sexual intercourse with his daughter BBB, a minor 15 years old. (As per the Defendant) Appellant interposed the defenses of denial and alibi. He testified that on the night of December 23, 1997, he and his wife and children went to the house of his sister-in-law where they spent the night. At 7:00 p.m., his wife and sister-in-law went to a wake.21 While his wife was away, he and his children watched the television. His wife arrived at 9:00 p.m. At 10:00 p.m., he decided to sleep and went inside the room where his wife and children were sleeping. At that time, BBB was sleeping beside her mother. Appellant then positioned himself beside his wife.22 He denied that BBB asked him to get a glass of water; at that time, BBB and his other children were already asleep. Appellant further claimed that he and his wife did not have serious problems with each other except for petty quarrels over who was going to cook in the mornings.23 He did not have any misunderstanding with his daughter BBB.24 He admitted that he did not file a counter-affidavit at the MCTC because he was surprised, and "they" hurt him. He did not, however, report this matter either before the MCTC or other authorities.25 RTC: On September 10, 2001, the RTC rendered a Decision acquitting the appellant in Criminal Case No. 1288-(98), but convicting him for the crime of rape in Criminal Case No. 1289-(98). The fallo reads: WHEREFORE, in view of all the foregoing, judgment is hereby rendered as follows: 1. For Criminal Case No. 1288: For failure of the prosecution to prove the guilt of the accused beyond reasonable doubt, judgment is hereby rendered acquitting him of the crime charged. 2. For Criminal Case No. 1289: The prosecution having successfully established the guilt of the accused beyond any cavil of doubt of the crime of rape, judgment is hereby rendered

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sentencing him to suffer the penalty of death by lethal injection. "If the crime of rape is committed where the victim is under eighteen (18) years of age and the offender is a parent x x x the imposition of the death penalty is mandatory." (People vs. Tanco, 284 SCRA 251). The accused is further ordered to pay, by way of indemnity the amount of Fifty Thousand Pesos (P50,000.00), Fifty Thousand Pesos (P50,000.00) as moral damages, and another Twenty-Five Thousand Pesos (P25,000.00) as exemplary damages. SO ORDERED.261awphi1.n�t On the alleged rape committed on December 23, 1997, the RTC concluded that, from the evidence presented, the prosecution failed to sufficiently establish the first element of rape � sexual intercourse. The trial court further stated that the offended party�s testimony � that she felt dizzy after drinking the glass of water given by the appellant, and felt pain on her breasts and private part when she woke up the following morning � are not positive indicia of defloration.27 The trial court, however, was convinced that appellant committed the second charge of rape (the first week of February 1998). The testimony of the offended party on the matter was clear, frank, positive and convincing. The apparent delay in reporting the incident was justified since the appellant had threatened BBB.28 The court further found that the offended party had no ill motive to file false charges against the appellant.29 Consequently, the trial court convicted the accused and sentenced him to suffer the supreme penalty of death. The case was initially elevated to this Court on automatic review. In deference to the ruling in People of the Philippines v. Mateo,30 however, the case was transferred to the CA. CA: Appellant claimed that the trial court gravely erred in imposing the death penalty despite the prosecution�s failure to prove the qualifying circumstance of minority.31 While appellant did not question his conviction, he contested the penalty imposed. He insisted that the minority of the offended party had not been sufficiently proven because the prosecution presented a mere photocopy of the birth certificate which was not certified as a true copy of the original.32 On May 30, 2005, the CA sustained the trial court�s imposition of the death penalty. It held that the qualifying circumstance of the victim�s minority had been specifically alleged in the Information and duly proven during the trial. The appellate court, however, modified the civil indemnity by increasing it from P50,000.00 to P75,000.00 pursuant to prevailing jurisprudence. The fallo of the decision reads: WHEREFORE, there being no error in the appealed decision finding appellant guilty beyond reasonable doubt in Criminal Case No. 1289-C-98 of Qualified Statutory Rape and sentencing him to suffer the penalty of Death, the Court hereby affirms the same with the MODIFICATION that Civil indemnity is increased to P75,000.00 However, instead of entering judgment, we hereby certify and elevate the entire records of this case to the Supreme Court for its final disposition. SO ORDERED.33 HELD: In the Court�s Resolution34 dated November 8, 2005, the parties were required to submit their respective supplemental briefs. The Office of the Solicitor General manifested35 that it would no longer file a supplemental brief since the arguments contained in the Appellee�s Brief would only be reiterated. In his Supplemental Brief, appellant alleged that he was no longer questioning his conviction, and pleaded only for a lighter sentence. He further averred that in view of the enactment of Republic Act (R.A.) No. 9346 abolishing the death penalty, the present appeal should now be deemed moot and academic. The Ruling of the Court After a careful and meticulous review of the records of the case, the Court finds no reason to overturn the findings of facts and conclusions of the trial and appellate courts. The prosecution adduced evidence to prove beyond reasonable doubt that the appellant raped BBB sometime in the first week of February 1998 in their house. The victim narrated in a spontaneous and straightforward manner how appellant defiled her, thus: FISCAL CAPULONG: Q How about in the month of February 1998 about the first week of February, do you recall if your father did anything to you? A Yes, Sir. Q And could you tell us what did your father do to you? A He sucked my breasts, Sir, and he inserted his penis into my vagina. Q And at what time was that when he did this to you?

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A Midnight already, Sir. Q And whereat did he do this to you? A In our house, Sir. Q When you said in your house, are you referring to the house of your aunt x x x? A No, Sir. xxx Q You stated that at about midnight of the first week of February 1998 your father sucked your breasts and inserted his penis on your private part. Before doing this, did he remove your dress or did he do anything to you? A He raised my blouse, Sir, and pulled down my shorts. Q Aside from your shorts, were you wearing any other underwear like panty? A Yes, Sir, I was wearing a panty then. Q And what did your father do with your panty? A He also removed it, Sir. Q When you said "removed it," did he remove it from your two feet? A No, Sir, he just pulled my panty up to my thighs. FISCAL CAPULONG Q And after pulling down your panty to your thighs, what else did he do, if anything? A He threatened me, Sir. Q How did he threaten you? A He told me that he will kill my mother as well as my brothers if I reported the matter to anyone, Sir. Q Did you not tell him anything when he pulled down your shorts and panty? A I told him to have mercy on me, Sir. Q You stated that he likewise sucked your breasts. How did he suck your breasts? Did he remove your bra? A He just raised my blouse, Sir, up to my neck. Q Where did your father do this to you, in a room or in what part of the house? A Inside our room, Sir. Q How about your brothers, where were your brothers at that time when he did this to you at the second time? A They were also inside the room, Sir, however, they were soundly (sic) asleep. FISCAL CAPULONG

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Q How about your mother? Where was your mother at that time? A She was not around then, Sir. Q Where was your mother, if you know? A She went to a fiesta, Sir. Q After your father pulled down your shorts and your panty up to your thighs, what else did he do? A He already kissed me on the lips, Sir, and again he inserted his penis into my vagina. Q Did he succeed in penetrating your private part? A Yes, Sir. Q What did you feel when your father inserted his penis on your private part? A It was painful, Sir. Q And after he succeeded in penetrating your private part, did he make any movement? A What he told me is that if I reported the matter to anyone he will also kill me, Sir. COURT: Q When did he tell you that he will kill you and your mother and your brothers, after the sexual intercourse or before? A Before the sexual intercourse, Your Honor. COURT: Proceed. FISCAL CAPULONG: Q And for how long was the private part of your father inserted in your vagina? A I do not know, Sir. Q And after satisfying his lust, what else transpired? A No more, Sir. COURT: Q Was your father wearing anything when he had sexual intercourse with you on the first week of February 1998? A At that time, Sir, he had no shirt on and thereafter he also removed his shorts. Q How about his brief? A He also removed his brief. Q So your father was entirely naked when he had sexual intercourse with you on the first week of February 1998? A Yes, Your Honor. Q Did you see him remove his short and brief? A Yes, Your Honor. Q While he was removing his short and brief what were you doing? A I was pleading for mercy, Your Honor. Q Were you lying down or what? A I was lying down, your Honor. Q When he inserted his penis on your private part, how did he do it? A Both of us were lying down, Sir, then he inserted his penis into my vagina. Q Who was on top? A He was the one, Your Honor. COURT: Proceed. FISCAL CAPULONG: Q At what time did your mother arrive on the second time your father sexually abused you? A I do not recall anymore the exact time my mother arrived, Sir, but that was in the morning because the preceding night she slept in another house. Q Did you not report to your mother what your father did to you the first week of February 1998 when she arrived home? A I did not, Sir. Q Could you tell us why you did not report the incident? A I was afraid, Sir. Q When for the first time did you report the incident to your mother? A When I got pregnant, Sir. Q And how did your mother react? A She was fuming mad and she cried, Sir. Q Did you have yourself medically examined? A Yes, Sir. COURT: Q After the first week of February 1998, was there any other sexual intercourse between you and your father? A None, Your Honor. Q So the incident on February 1998 was the last? A Yes, Your Honor. Q And you were impregnated? A Yes, Your Honor. Q What happened to the child? A At that time, Your Honor, my mother was sick and we have no money that is why she had my child adopted. FISCAL CAPULONG:

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May we just make of record, Your Honor, that the witness is crying. COURT: Q When was your child born? A In October 1998, I just could not recall the exact date, Your Honor.36 The trial court gave credence and full probative weight to the victim�s testimony, and found it "clear, frank, positive and convincing": The Court had observed personally and attentively the offended party when she testified. The Court in its effort to discover traces of falsehood in her testimony had participated in asking searching questions. It failed to unravel any vestige of untruthfulness. Her testimony was clear, frank, positive and convincing. It is consistent with human nature. She was firm and categorical in denouncing her own father�s lecherous act of stripping her virginity. Offended party was only fifteen (15) and of tender age at the time of the commission of the offense. To the mind of the court, she was inexperienced with the ways of the world.37 The CA affirmed the findings of the trial court. It is settled that the trial court�s evaluation of the credibility of witnesses is viewed as correct and entitled to the highest respect because it is more competent to so conclude, having had the opportunity to observe the witnesses� demeanor and deportment on the stand, and the manner in which they gave their testimony.38 Unless the trial court ignored, misinterpreted or misunderstood facts and circumstances of substance which, if considered, would reverse or modify the outcome of the case, its findings on the credibility of witnesses will not be disturbed.39 Moreover, when a rape victim testifies in a straightforward and candid manner, unshaken by rigid cross-examination and unflawed by inconsistencies, or contradictions on material points, the testimony should be given full faith and credit.40 And in view of the intrinsic nature of rape, the only evidence that can be offered to prove the guilt of the offender is the testimony of the offended party.41

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Appellant admitted that no ill motive can be attributed to the victim to falsely charge him of the crime of rape: Q: By the way do you have any misunderstanding with your wife x x x? A: Sometimes, we quarrel, sir over cooking in the morning upon waking up. Q: But you have no serious problem whatsoever? A: None, Sir. Q: And so with your daughter, you have no misunderstanding with her? A: None, Sir. FISCAL LLOBRERA: Q: And you do not know of any reason whay (sic) they filed these complaints? A: None Sir.42 Indeed, it would run counter to the natural order of events and of human nature, and contrary to the presumption of good faith, for a prosecution witness to falsely testify if the appellant is truly innocent.43 Thus, the presumption is that the victim told the truth; hence, her testimony is entitled to full probative weight. The strength of the prosecution�s case is further bolstered by the fact that appellant no longer questions his conviction for rape, and merely prays for a lesser penalty. As such, we find no reason to disturb the trial court�s finding of guilt. Appellant insists, however, that he was wrongfully sentenced to suffer the supreme penalty of death, since the special qualifying circumstance of minority was not substantially proven. The contention is without merit. In People of the Philippines v. Pruna44 the Court laid down the following guidelines in appreciating the age of the victim: 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim�s mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim�s mother or relatives concerning the victim�s age, the complainant�s testimony will suffice provided that it is expressly and clearly admitted by the accused.45 Records reveal that the victim testified during the hearing that she was born on January 23, 1983, and that appellant did not offer any objection to her testimony: Q: Incidentally, could you tell us when were you born? A: I was born January 23, 1983, Sir. Q: And do you have your birth certificate? A: It is in your possession already, Sir.46 In fact, during cross-examination of the victim, appellant�s counsel referred to her age: Q: By the way, Miss witness, at that time on December 23, 1997 you were already 15 years old. Is it not? A: Yes ma�am.47 The fact of minority was further established by victim�s certificate of live birth, albeit a mere photocopy of the original. In People of the Philippines v. Mangitngit,48 People of the Philippines v. Barcena,49 and People of the Philippines v. Cayabyab,50 this Court admitted and gave weight to a photocopied birth

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certificate to prove the age of the offended party. Specifically, we ratiocinated in this wise: We are not unaware of our ruling in People v. Mantis that a mere photocopy of the birth certificate, in the absence of any showing that the original copy was lost or destroyed, or was unavailable, without the fault of the prosecution, does not prove the victim�s minority, for said photocopy does not qualify as competent evidence for that purpose. However, there are other exceptions to the "best evidence rule" as expressly provided under Section 3, Rule 130 of the Rules of Court, which reads: Section 3. Original document must be produced; exceptions. � When the subject of the inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: xxxx (d) When the original is a public record in the custody of a public officer or is recorded in a public office.51 A certificate of live birth is a public record in the custody of the local civil registrar who is a public officer. As such, the presentation of the photocopy of the birth certificate of the victim is admissible as secondary evidence to prove its contents. Production of the original may be dispensed with, in the trial court�s discretion, whenever the opponent does not dispute the contents of the document and no other useful purpose will be served by requiring production.52 In the present case, appellant did not dispute the contents of the photocopied birth certificate. Having failed to raise a valid and timely objection, the document constitutes primary evidence; it is deemed admitted, and the other party is bound thereby.53 Thus, the prosecution sufficiently established that at the time of the commission of the crime of rape in the first week of February 1998, the victim was only 15 years of age, having been born on January 23, 1983. However, in view of the enactment of R.A. No. 9346 on June 24, 2006 prohibiting the imposition of the death penalty, the penalty of reclusion perpetua without eligibility for parole should instead be imposed.54 We affirm the award of P75,000.00 as civil indemnity, which is awarded if the crime is qualified by circumstances warranting the imposition of the death penalty. The award of P25,000.00 as exemplary damages, in light of the presence of the qualifying circumstances of minority and relationship, is likewise

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proper.55 However, in accordance with prevailing jurisprudence, the award of moral damages should be increased to P75,000.00.56 We would like to stress that even if the death penalty is not to be imposed on the appellant because of the prohibition in R.A. No. 9346, the award of damages under prevailing jurisprudence is not affected. This award is not dependent on the actual imposition of the death penalty, but on the fact that the qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense.57 IN LIGHT OF ALL THE FOREGOING, the Decision dated May 30, 2005 of the Court of Appeals finding appellant Filomino L. Villanueva guilty beyond reasonable doubt of the crime of qualified rape is AFFIRMED with MODIFICATION.1awphi1.n�t The penalty of death is reduced to reclusion perpetua pursuant to R.A. No. 9346. The award of moral damages to the private complainant is increased to P75,000.00. -With the use of his Mastercard, Aznar purchased plane tickets to Kuala Lumpur for his group worth P237,000.00. -During the trip, Aznar claims that when he presented his Mastercard in some establishments in Malaysia, Singapore and Indonesia, the same was not honored. -And when he tried to use the same in Ingtan Tour and Travel Agency (Ingtan Agency) in Indonesia to purchase plane tickets to Bali, it was again dishonored for the reason that his card was blacklisted by Citibank. Such dishonor forced him to buy the tickets in cash. -Aznar filed a complaint for damages against Citibank, 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. -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 -To prove that Citibank blacklisted his Mastercard, Aznar presented a computer print-out, denominated as ON-LINE AUTHORIZATIONS FOREIGN ACCOUNT ACTIVITY REPORT, issued to him by Ingtan Agency (Exh. "G") with the signature of one Victrina Elnado Nubi which shows that his card in question was "DECL OVERLIMIT" or declared over the limit. -Citibank denied the allegation that it blacklisted Aznar’s card. To prove that they did not blacklist Aznar’s card, Citibank’s Credit Card Department Head, Dennis Flores, presented Warning Cancellation Bulletins, which contained the list of its canceled cards covering the period of Aznar’s trip. Aznar’s wasn’t in the list. -RTC of Cebu dismissed Aznar’s complaint for lack of merit and held that as between the computer print-out presented by Aznar and the Warning Cancellation Bulletins presented by Citibank, the latter had more weight as their due execution and authenticity were duly established by Citibank.Also held that even if it was shown that Aznar’s 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. -Aznar filed a MFR 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. The case was re-raffled with the new judge granting Aznar’s MR

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saying that it was improbable that a man of Aznar’s stature would fabricate the computer print-out which shows that Aznar’s 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 Aznar’s Mastercard; no rebutting evidence was presented by Citibank to prove that Aznar’s 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 Aznar’s credit limit and ensure that Aznar will not encounter any embarrassing situation with the use of his Mastercard; Citibank’s 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. -Citibank filed an appeal with the CA and its counsel filed an administrative case against Judge De la Peña 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. -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 Sec. 2, Rule 5 of the Rules on Electronic Evidence or under Sect.20 of Rule 132 of the Rules of Court by anyone who saw the document executed or written; Aznar, however, failed to prove the authenticity of Exh. "G", thus it must be excluded; the unrefuted testimony of Aznar that his credit card was dishonored by Ingtan Agency and certain establishments abroad is not sufficient to justify the award of damages in his favor,

Rules on Electronic Evidence EMMANUEL B. AZNAR v. CITIBANK, N.A., (Philippines) G.R. No. 164273 AUSTRIA-MARTINEZ; March 28, 2007 (edel) NATURE: CERTIORARI Facts: -Aznar, a known businessman in Cebu, is a holder of a Preferred Mastercard issued by Citibank with a credit limit of P150,000.00. As he and his wife, Zoraida, planned to take their two grandchildren, on an Asian tour, Aznar made a total advance deposit of P485,000.00 with Citibank with the intention of increasing his credit limit to P635,000.00.

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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 Aznar’s credit card by said establishments. -Aznar’s MR was denied by the CA. -As regards the admin case, J. Dela Pena was adjudged guilty. Issue: WON Aznar has established his claim against Citibank. If so, WON Citibank is liable for damages. HELD: NO to both. On his claim: 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. -Aznar failed to prove with a preponderance of evidence that Citibank blacklisted his Mastercard or placed the same on the "hot list. -Aznar in his testimony admitted that he had no personal knowledge that his Mastercard was blacklisted by Citibank and only presumed such fact from the dishonor of his card. -The dishonor of Aznar’s Mastercard is not sufficient to support a conclusion that said credit card was blacklisted by Citibank, especially in view of Aznar’s own admission that in other merchant establishments in Kuala Lumpur and Singapore, his Mastercard was accepted and honored. -Aznar puts much weight on the ON-LINE AUTHORIZATION FOREIGN ACCOUNT ACTIVITY REPORT, a computer print-out handed to Aznar by Ingtan Agency, marked as Exh. "G", to prove that his Mastercard was dishonored for being blacklisted. -But such exhibit cannot be considered admissible as its authenticity and due execution were not sufficiently established by Aznar as per Sec 20 of Rule 132 of the RoC. 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. -Even 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. -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 printout because while the name of Ingtan Agency was mentioned by Aznar, its business address was not reflected in the print-out. -Indeed, Aznar failed to demonstrate how the information reflected on the print-out was generated and how the said information could be relied upon as true. -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

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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. - Also, It is not clear 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 printout 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 Warning Cancellation Bulletins (WCB) which covered the period 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. -Citibank produced 300 documents to show that Aznar 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 (exh.G) and the Warning Cancellation Bulletins the latter

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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 plaintiff’s preferred master card was actually placed in the “hot list” or blacklisted for the following reasons: 1) the due execution and authentication of these Warning Cancellation Bulletins (or WCB) have been duly established and identified by Citibank’s witness, Dennis Flores, one of the bank’s officers, who is the head of its credit card department, and, TF, competent to testify on the said bulletins as having been issued by the defendant bank showing that plaintiff’s preferred master credit card was never blacklisted or placed in the Bank’s “hot list”. While Aznar’s computer print out 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 presented by defendants (sic) and an unauthenticated private document, plaintiff’s computer print out (Exh. G), the former deserves greater evidentiary weight supporting the findings of this Court that plaintiff’ s preferred master card had never been blacklisted at all or placed in a so-called “hot list” by defendant. 2) On implied novation (when he added addt’l funds to increase credit limit): the Court finds that petitioner's argument on this point has no leg to stand on. On damages: -the Court agrees with Aznar that the terms and conditions of Citibank’s 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. -On Par 7 of said contract: 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,Citibank. On limiting its liability to P1k or the actual damage proven, whichever is lesser: 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. -The invalidity of the terms and conditions being invoked by Citibank, notwithstanding, the Court still cannot award damages in favor of petitioner. -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. -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. BPI v. CA: xxx… 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. Disposition: The petition is denied for lack of merit.

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