AUTHENTICATION OF DOCUMENT/POSITIVE IDENTIFICATION OF ACCUSED;

CIRCUMSTANTIAL EVIDENCE.

THIRD DIVISION

G.R. No. 191185, February 01, 2016

GUILBEMER FRANCO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

REYES, J.:

The Constitution presumes a person innocent until proven guilty by proof beyond
reasonable doubt. The prosecution cannot be allowed to draw strength from the weakness
of the defense's evidence for it has the onus probandi in establishing the guilt of the
accused - ei incumbit probatio qui elicit, non que negat— he who asserts, not he who denies,
must prove.1chanRoblesvirtualLawlibrary

Nature of the Case

Before the Court is a Petition for Review on Certiorari2 under Rule 45 of the Rules of Court
where petitioner Guilbemer Franco (Franco) assails the Decision3 dated September 16,
2009 of the Court of Appeals (CA), in CA-G.R. CR No. 31706, affirming the Decision4 dated
February 27, 2008 of the Regional Trial Court (RTC) of Manila, Branch 15, in Criminal Case
No. 05-238613. The RTC convicted Franco of the crime of Theft under an Information,
which reads as follows:ChanRoblesVirtualawlibrary
That on or about November 3, 2004, in the City of Manila, Philippines, the said accused
did then and there willfully, unlawfully and feloniously, with intent to gain and without the
knowledge and consent of the owner thereof, take, steal and carry away one (1) Nokia 3660
Model cellular phone worth Php 18,500.00 belonging to BENJAMIN JOSEPH NAKAMOTO
Y ERGUIZA to the damage and prejudice of the said owner in the aforesaid amount of Php
18,500.00, Philippine Currency.

Contrary to law.5chanroblesvirtuallawlibrary
On September 5, 2005, Franco, assisted by counsel, pleaded not guilty to the crime
charged.6chanRoblesvirtualLawlibrary

The Facts

The evidence for the prosecution established the following facts:

On November 3, 2004 at around 11:00 a.m., Benjamin Joseph Nakamoto (Nakamoto) went
to work out at the Body Shape Gym located at Malong Street, Tondo, Manila. After he
finished working out, he placed his Nokia 3660 cell phone worth PI8,500.00 on the altar
where gym users usually put their valuables and proceeded to the comfort room to change
his clothes. After ten minutes, he returned to get his cell phone, but it was already missing.
Arnie Rosario (Rosario), who was also working out, informed him that he saw Franco get a
cap and a cell phone from the altar. Nakamoto requested everyone not to leave the gym, but
upon verification from the logbook, he found out that Franco had left within the time that
he was in the shower.7chanroblesvirtuallawlibrary

The gym's caretaker, Virgilio Ramos (Ramos), testified that he saw Franco in the gym but he
was not working out and was just going around the area. In fact, it was just Franco's
second time at the gym. Ramos even met him near the door and as Franco did not log out,
he was the one who indicated it in their logbook. When Nakamoto announced that his cell
phone was missing and asked that nobody leaves the place, he put an asterisk opposite the
name of Franco in the logbook to indicate that he was the only one who left the gym after
the cell phone was declared lost.8chanroblesvirtuallawlibrary

Nakamoto, together with Jeoffrey Masangkay, a police officer who was also working out at
the gym, tried to locate Franco within the gym's vicinity but they failed to find him. They
proceeded to the police station and while there, a report was received from another police
officer that somebody saw Franco along Coral Street, which is near the gym and that he
was holding a cell phone. They went to Coral Street but he was already gone. A vendor told
them that he saw a person who was holding a cell phone, which was then ringing and that
the person was trying to shut it off. When they went to Franco's house, they were initially
not allowed to come in but were eventually let in by Franco's mother. They talked to Franco
who denied having taken the cell phone.9chanroblesvirtuallawlibrary

Nakamoto then filed a complaint with the barangay but no settlement was arrived thereat;
hence, a criminal complaint for theft was filed against Franco before the City Prosecutor's
Office of Manila, docketed as I.S. No. 04K-25849.10chanroblesvirtuallawlibrary

In his defense, Franco denied the charge, alleging that if Nakamoto had indeed lost his cell
phone at around 1:00 p.m., he and his witnesses could have confronted him as at that
time, he was still at the gym, having left only at around 2:45 p.m.11 He also admitted to
have taken a cap and cell phone from the altar but claimed these to be
his.12chanRoblesvirtualLawlibrary

Ruling of the RTC

In its Decision dated February 27, 2008, the RTC convicted Franco of theft, the dispositive
portion of which reads:ChanRoblesVirtualawlibrary
IN VIEW OF THE FOREGOING, this Court finds [Franco], GUILTY beyond reasonable doubt
of the crime of theft penalized in paragraph I of Article 309 in relation to Article 308 of the
Revised Penal Code and hereby imposes upon him the penalty of imprisonment of two (2)
years, four (4) months and one (1) day as minimum to seven (7) years and four (4) months
as maximum and to pay the complainant Php 18,500.00.

SO ORDERED.13chanroblesvirtuallawlibrary
The RTC did not find Franco's defense credible and ruled that his denial cannot be given
evidentiary value over the positive testimony of Rosario.14chanroblesvirtuallawlibrary

Franco then appealed to the CA.15chanRoblesvirtualLawlibrary

Ruling of the CA

In affirming the RTC decision, the CA found the elements of theft to have been duly
established. It relied heavily on the "positive testimony" of Rosario who declared to have
seen Franco take a cap and a cell phone from the altar. The CA likewise gave credence to
the testimony of Ramos who confirmed that it was only Franco who left the gym
immediately before Nakamoto announced that his cell phone was missing. Ramos also
presented the logbook and affirmed having put an asterisk opposite the name "ELMER,"
which was entered by the accused upon logging in. The CA stated that taken together, the
foregoing circumstances are sufficient to support a moral conviction that Franco is guilty,
and at the same time, inconsistent with the hypothesis that he is innocent.16 The CA
further ruled that the RTC cannot be faulted for giving more weight to the testimony of
Nakamoto17 and Rosario,18 considering that Franco failed to show that they were impelled
by an ill or improper motive to falsely testify against him.19chanroblesvirtuallawlibrary

In his petition for review, Franco presented the following issues for resolution, to
wit:ChanRoblesVirtualawlibrary
I.

WHETHER THE HONORABLE [CA] ERRED IN GIVING WEIGHT AND CREDENCE TO THE
PROSECUTION WITNESSES' INCONSISTENT AND IRRECONCILABLE
TESTIMONIES.chanRoblesvirtualLawlibrary

II.

WHETHER THE HONORABLE [CA] ERRED IN AFFIRMING [FRANCO'S] CONVICTION

DESPITE THE FACT THAT THE SAME WAS BASED ON FABRICATIONS AND
PRESUMPTIONS.chanRoblesvirtualLawlibrary

III.

WHETHER. THE HONORABLE [CA] ERRED IN ACCEPTING THE VALUE OF THE

ALLEGEDLY STOLEN CELLULAR PHONE WITHOUT SUBSTANTIATING
EVIDENCE.20chanroblesvirtuallawlibrary
 Ruling of the Court

Preliminarily, the Court restates the rule that only errors of law and not of facts are
reviewable by this Court in a petition for review on certiorari under Rule 45 of the Revised
Rules of Court. This rule applies with greater force when the factual findings of the CA are
in full agreement with that of the RTC.21chanroblesvirtuallawlibrary

The rule, however, is not ironclad. A departure therefrom may be warranted when it is
established that the RTC ignored, overlooked, misconstrued or misinterpreted cogent facts
and circumstances, which, if considered, will change the outcome of the case. Considering
that what is at stake here is liberty, the Court has carefully reviewed the records of the
case22 and finds that Franco should be acquitted.

Failure of the prosecution to prove Franco's guilt beyond reasonable doubt

The burden of such proof rests with the prosecution, which must rely on the strength of its
case rather than on the weakness of the case for the defense. Proof beyond reasonable
doubt, or that quantum of proof sufficient to produce a moral certainty that would convince
and satisfy the conscience of those who act in judgment, is indispensable to overcome the
constitutional presumption of innocence.23chanroblesvirtuallawlibrary

In every criminal conviction, the prosecution is required to prove two things beyond
reasonable doubt: first, the fact of the commission of the crime charged, or the presence of
all the elements of the offense; and second, the fact that the accused was the perpetrator of
the crime.24chanroblesvirtuallawlibrary

Under Article 308 of the Revised Penal Code, the essential elements of the crime of theft
are: (1) the taking of personal property; (2) the property belongs to another; (3) the taking
away was done with intent to gain; (4) the taking away was done without the consent of the
owner; and (5) the taking away is accomplished without violence or intimidation against
person or force upon things.25cralawred

The corpus delicti in theft has two elements, to wit: (1) that the property was lost by the
owner; and (2) that it was lost by felonious taking.26 In this case, the crucial issue is
whether the prosecution has presented proof beyond reasonable doubt to establish
the corpus delicti of the crime. In affirming Franco's conviction, the CA ruled that the
elements were established. Moreover, the RTC and the CA apparently relied heavily on
circumstantial evidence.

To sustain a conviction based on circumstantial evidence, Section 4, Rule 133 of the Rules
of Court provides that the following requisites must concur: (1) there must be more than
one circumstance to convict; (2) the facts on which the inference of guilt is based must be
proved; and (3) the combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt. With respect to the third requisite, it is essential that the
circumstantial evidence presented must constitute an unbroken chain, which leads one to
a fair and reasonable conclusion pointing to the accused, to the exclusion of others, as the
guilty person.27chanroblesvirtuallawlibrary

The prosecution presented three (3) witnesses - Nakamoto, the complainant; Ramos, the
gym's caretaker; and Rosario, another gym user.

Their testimonies established the following circumstances: (1) Nakamoto placed his cell
phone on the altar,28 left and went to change his clothes, and alter ten minutes, returned to
get his cell phone but the same was already missing;29 (2) Rosario saw Franco get a cap and
a cell phone from the same place;30and (3) Ramos saw Franco leave the gym at 1:15 p.m.
and the latter failed to log out in the logbook.31The RTC and the CA wove these
circumstances in order to arrive at the "positive identification" of Franco as the
perpetrator.32chanroblesvirtuallawlibrary

A perusal of their testimonies, however, shows that certain facts have been overlooked by
both courts.

For one, it was only Rosario who saw Franco get a cap and a cell phone from the altar. His
lone testimony, however, cannot be considered a positive identification of Franco as the
perpetrator.33chanroblesvirtuallawlibrary
In People v. Pondivida,34 the Court held:ChanRoblesVirtualawlibrary
Positive identification pertains essentially to proof of identity and not per se to that of being
an eyewitness to the very act of commission of the crime. There are two types of positive
identification. A witness may identify a suspect or accused in a criminal case as the
perpetrator of the crime as an eyewitness to the very act of the commission of the crime.
This constitutes direct evidence. There may, however, be instances where, although a
witness may not have actually seen the very act of commission of a crime, he may still be
able to positively identify a suspect or accused as the perpetrator of a crime as for instance
when the latter is the person or one of the persons last seen with the victim immediately
before and right after the commission of the crime. This is the second, type of positive
identification, which forms part of circumstantial evidence, which, when taken together
with other pieces of evidence constituting an unbroken chain, leads to only fair and
reasonable conclusion, which is that the accused is the author of the crime to the exclusion
of all others. x x x.35 (Emphasis omitted and underscoring ours)
Rosario's testimony definitely cannot fall under the first category of positive identification.
While it may support the conclusion that Franco took a cell phone from the altar, it does
not establish with certainty that what Franco feloniously took, assuming that he did, was
Nakamoto's cell phone. Rosario merely testified that Franco took "a cell phone." He
stated:ChanRoblesVirtualawlibrary
Q: How did you know that the said cell phone was taken by the accused?

A: [W]e were then in a conversation when I asked him to spot or assist me with the
weights that I intended to carry. We were then situated in an area very near the
altar where his cap and cell phone were placed. After assisting me, he went to
the area and took the cell phone and the cap at the same time.

Q: [W]ho were you talking [sic] at that time?

A: Guilbemer Franco.

Q: It was also [G]uilbemer Franco who helped or spot you in the work out?

A: Yes, sir.

Q: And after assisting you, what did Franco do?

A: He took the cell phone of Mr. Nakamoto and his cap at the same time and covered
the cell phone by his cap and left the place.

Q: Where was that cell phone of the private complainant placed at that time?

A: At the top of the altar where is [sic] cap is also located.

Q: How far was that altar from where you were working?

A: Only inches.

Q: It was directly in front of you?

A: Yes, sir.

Q: What did you do when the accused took the cap as well as the cell phone of
the private complainant?
 A: None, sir. I thought the cap and cell phone was his.

Q: How did you know that the cell phone belongs to the private complainant?

A: After Mr. Nakamoto came out from the shower, he went directly to the altar to
get his cell phone which was not there anymore and asked us where his cell
phone and I told him that I saw Mr. Franco get a cell phone from that
area.36 (Emphasis ours)
On cross-examination, Rosario also stated that he did not actually see Franco take
Nakamoto's cell phone37 but on re-direct, he clarified that he did not see the cell phone of
Nakamoto because he thought that the cell phone was owned by
Franco.38chanroblesvirtuallawlibrary

What was firmly established by Rosarios testimony is that Franco took a cell phone from
the altar. But Franco even admitted such fact.39 What stands out from Rosario's testimony
is that he was unable to particularly describe at first instance what or whose cell phone
Franco took from the altar. lie only assumed that it was Nakamoto's at the time the latter
announced that his cell phone was missing. This was, in tact, observed by the RTC in the
course of Rosario's testimony, thus:ChanRoblesVirtualawlibrary
COURT: What you actually saw was, [G]uilbemer Franco was taking his cap together
with the cell phone placed beside the cap but you do not know that [the] cell
phone was Bj's or Nakamoto's?

A: [Y]es, Your Honor.

COURT: You just presumed that the cell phone taken by Guilbemer Franco was
his?

A: Yes, Ma'am.40 (Emphasis ours)

Moreover, it must be noted that save for Nakamoto's statement that he placed his cell
phone at the altar, no one saw him actually place his cell phone there. This was confirmed
by Rosario -
COURT:

Q: And on that day, you were able to see that Nakamoto on four incidents, when he
logged-in, during work-out and when he went inside the C.[R].?

A: Yes, sir.

Q: Therefore, you did not see Nakamoto place his cell phone at the Altar?

A: Yes, sir.41 (Emphasis ours)

Ramos, the gym caretaker, also testified that he did not see Franco take Nakamoto's cell
phone and only assumed that the cell phone on the altar was Nakamoto's, thus -
Q: And do you know who owns that cell phone put [sic] over the altar?

A: Benjamin Nakamoto.

Q: How do you know that it belongs to Benjamin Nakamoto?

A: He is the only one who brings a cell phone to the gym.

xxxx
 Q: [D]id you actually see him take the cell phone of Nakamoto?

A: I did not see him take the [cell] phone but as soon as the cell phone was lost, he
was the only one who left the gym.42chanroblesvirtuallawlibrary
Neither can the prosecution's testimonial evidence fall under the second category of positive
identification, that is, Franco having been identified as the person or one of the persons last
seen immediately before and right after the commission of the theft. Records show that
there were other people in the gym before and after Nakamoto lost his cell phone. In fact,
Nakamoto himself suspected Rosario of having taken his cell phone,
thus:ChanRoblesVirtualawlibrary
ATTY. SANCHEZ:

Q: You said that you stayed inside the rest room for more or less 10 minutes?

A: [Y]es, sir.

Q: After 10 minutes, you don't know whether aside from Franco somebody went out
from the gym because you were inside the c.r.?

A: Yes. sir.

xxxx

Q: As a matter of fact, one of your witness[es] who went near the place where your cell
phone was placed was this Arnie Rosario?

A: Yes, sir.

Q: And it was only the accused and [Rosario] who were near the place where you said
you placed the cell phone?

A: Yes, sir.

Q: You did not suspect [Rosario] to have taken the cell phone?

A: I also suspected, sir.43 (Emphasis ours)

Moreover, the prosecution witnesses confirmed that the altar is the usual spot where the
gym users place their valuables. According to Rosario:ChanRoblesVirtualawlibrary
ATTY. SANCHEZ:

Q: And in that place, you said there was a Sto. Nino?

A: At the Altar.

Q: Those who work-out in that gym usually place their things [on top of] the
altar.

A: Yes, sir.

Q: Therefore, there were people who place their cell phones on top [of] the Altar?

A: Yes, sir.
 Q: Aside from Nakamoto, other people place their things on top [of] the Altar?

A: Yes, sir.44 (Emphasis ours)

The prosecution's evidence does not rule out the following possibilities: one, that what
Franco took was his own cell phone; two, even on the assumption that Franco stole a cell
phone from the altar, that what he feloniously took was Nakamoto's cell phone, considering
the feet that at the time Nakamoto was inside the changing room, other people may have
placed their cell phone on the same spot; and three, that some other person may have
taken Nakamoto's cell phone.

It must be emphasized that "[c]ourts must judge the guilt or innocence of the accused
based on facts and not on mere conjectures, presumptions, or suspicions."45 It is iniquitous
to base Franco's guilt on the presumptions of the prosecution's witnesses for the Court has,
time and again, declared that if the inculpatory facts and circumstances are capable of two
or more interpretations, one of which being consistent with the innocence of the accused
and the other or others consistent with his guilt, then the evidence in view of the
constitutional presumption of innocence has not fulfilled the test of moral certainty and is
thus insufficient to support a conviction.46chanroblesvirtuallawlibrary

Franco also asserts that the logbook from which his time in and time out at the gym was
based was not identified during the trial and was only produced after Ramos
testified.47 Ramos testified that when Nakamoto announced that his cell phone was missing
and asked that nobody leaves the place, he put an asterisk opposite the name of Franco in
the logbook to indicate that he was the only one who left the gym after the cell phone was
declared lost.48chanroblesvirtuallawlibrary

Under the Rules on Evidence, documents are either public or private. Private documents
are those that do not fall under any of the enumerations in Section 19, Rule 132 of the
Rules of Court.49 Section 20 of the same Rule, in turn, provides that before any private
document is received in evidence, its due execution and authenticity must be proved either
by anyone who saw the document executed or written, or by evidence of the genuineness of
the signature or handwriting of the maker.50chanroblesvirtuallawlibrary

In this case, the foregoing rule was not followed. The testimony of Ramos shows that the
logbook, indeed, was not identified and authenticated during the course of Ramos'
testimony. At the time when Ramos was testifying, he merely referred to the log in and log
out time and the name of the person at page 104 of the logbook that appears on line 22 of
the entries for November 3, 2004. This was photocopied and marked as Exhibit "C-
1."51 Meanwhile, when Nakamoto was presented as rebuttal witness, a page from the
logbook was again marked as Exhibit "D."52 The logbook or the particular page referred to
by Ramos was neither identified nor confirmed by him as the same logbook which he used
to log the ins and outs of the gym users, or that the writing and notations on said logbook
was his.

The prosecution contends, meanwhile, that the RTC's evaluation of the witnesses'
credibility may no longer be questioned at this stage.53 The Court is not unmindful of the
rule that the assignment of value and weight to the testimony of a witness is best left to the
discretion of the RTC. But an exception to that rule shall be applied in this ease where
certain facts of substance and value, if considered, may affect the result.54 In Lejano v.
People,55 the Court stated:ChanRoblesVirtualawlibrary
A judge must keep an open mind. He must guard against slipping into hasty conclusion,
often arising from a desire to quickly finish the job of deciding a case. A positive declaration
from a witness that he saw the accused commit the crime should not automatically cancel
out the accused's claim that he did not do it. A lying witness can make as positive an
identification as a truthful witness can. The lying witness can also say as forthrightly and
unequivocally, "He did it!" without blinking an eye.56chanroblesvirtuallawlibrary
The facts and circumstances proven by the prosecution, taken together, are not sufficient
to justify the unequivocal conclusion that Franco feloniously took Nakamoto's cell phone.
No other convincing evidence was presented by the prosecution that would link him to the
theft.57 The fact Franco took a cell phone from the altar does not necessarily point to the
conclusion that it was Nakamoto's cell phone that he took. In the appreciation of
circumstantial evidence, the rule is that the circumstances must be proved, and not
themselves presumed. The circumstantial evidence must exclude the possibility that some
other person has committed the offense charged.58chanroblesvirtuallawlibrary

Franco, therefore, cannot be convicted of the crime charged in this case. There is not
enough evidence to do so. As a rule, in order to support a conviction on the basis of
circumstantial evidence, all the circumstances must be consistent with the hypothesis that
the accused is guilty. In this case, not all the facts on which the inference of guilt is based
were proved. The matter of what and whose cell phone Franco took from the altar still
remains uncertain.chanRoblesvirtualLawlibrary

Franco's defense of denial

The evidence of the prosecution must stand on its own weight and not rely on the weakness
of the defense.59 In this case, Franco did not deny that he was at the Body Shape Gym on
November 3, 2004, at around 1:00 p.m. and left the place at around 2:45 p.m.60 He did not
even deny that he took a cell phone from the altar together with his cap. What he denied is
that he took Nakamoto's cell phone and instead, claimed that what he took is his own cell
phone.61 Denial may be weak but courts should not at once look at them with disfavor.
There are situations where an accused may really have no other defenses but denial, which,
if established to be the truth, may tilt the scales of justice in his favor, especially when the
prosecution evidence itself is weak.62chanroblesvirtuallawlibrary

While it is true that denial partakes of the nature of negative and self-serving evidence and
is seldom given weight in law,63 the Court admits an exception established by
jurisprudence that the defense of denial assumes: significance when the prosecution's
evidence is such that it does not prove guilt beyond reasonable doubt.64 The exception
applies in the case at hand. The prosecution failed to produce sufficient evidence to
overturn the constitutional guarantee that Franco is presumed to be
innocent.chanRoblesvirtualLawlibrary

Value of the cell phone

It is also argued by Franco that the value of the cell phone must be duly proved with
reasonable degree of certainty. On the other hand, the people contended that there has
been a judicial admission of the same.65 This issue, however, is now moot and academic
considering Franco's acquittal.chanRoblesvirtualLawlibrary

Conclusion

The circumstantial evidence proven by the prosecution in this case failed to pass the test of
moral certainty necessary to warrant Franco's conviction. Accusation is not synonymous
with guilt.66 Not only that, where the inculpatory facts and circumstances are capable of
two or more explanations or interpretations, one of which is consistent with the innocence
of the accused and the other consistent with his guilt, then the evidence does not meet or
hurdle the test of moral certainty required for conviction.67chanroblesvirtuallawlibrary

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated
September 16, 2009 in CA-GR. CR No. 31706 is hereby REVERSED and SET ASIDE.
Petitioner Guilbemer Franco is ACQUITTED of the crime of Theft charged in Criminal Case
No. 05-238613 because his guilt was not proven beyond reasonable doubt.

No costs.

SO ORDERED.cralawlawlibrary

Velasco, Jr., (Chairperson), Peralta, Perez, and Jardeleza, JJ., concur.

FORMAL OFFER;LIBERAL ADMISSION OF EVIDENCE.

SECOND DIVISION

G.R. No. 174673, January 11, 2016

 REPUBLIC OF THE PHILIPPINES, Petitioner, v. FE ROA GIMENEZ AND IGNACIO B.
GIMENEZ, Respondents.

DECISION

LEONEN, J.:

Rules of procedure are not ends in themselves. The object of these rules is to assist and
facilitate a trial court's function to be able to receive all the evidence of the parties, and
evaluate their admissibility and probative value in the context of the issues presented by
the parties' pleadings in order to arrive at a conclusion as to the facts that transpired.
Having been able to establish the facts, the trial court will then be able to apply the law and
determine whether a complainant is deserving of the reliefs prayed for in the pleading.

Dismissal on the basis of a very strict interpretation of procedural rules without a clear
demonstration of the injury to a substantive right of the defendant weighed against 19
years of litigation actively participated in by both parties should not be encouraged.

There is likewise serious reversible error, even grave abuse of discretion, when the
Sandiganbayan dismisses a case on demurrer to evidence without a full statement of its
evaluation of the evidence presented and offered and the interpretation of the relevant law.
After all, dismissal on the basis of demurrer to evidence is similar to a judgment. It is a
final order ruling on the merits of a case.

This is a Petition1 for Review on Certiorari assailing the Sandiganbayan Resolutions dated
May 25, 20062and September 13, 2006.3 The Sandiganbayan deemed petitioner Republic of
the Philippines (Republic) to have waived the filing of its Formal Offer of Evidence4 and
granted the Motion to Dismiss of respondents Spouses Ignacio Gimenez and Fe Roa
Gimenez (Gimenez Spouses) based on demurrer to evidence.5chanroblesvirtuallawlibrary

The Republic, through the Presidential Commission on Good Government (PCGG),

instituted a Complaint6for Reconveyance, Reversion, Accounting, Restitution and Damages
against the Gimenez Spouses before the Sandiganbayan.7 "The Complaint seeks to recover .
. . ill-gotten wealth . . . acquired by [the Gimenez Spouses] as dummies, agents[,] or
nominees of former President Ferdinand E. Marcos and Imelda
Marcos[.]"8chanroblesvirtuallawlibrary

During trial, the Republic presented documentary evidence attesting to the positions held,
business interests, income, and pertinent transactions of the Gimenez Spouses.9 The
Republic presented the testimonies of Atty. Tereso Javier, Head of the Sequestered Assets
Department of PCGG, and of Danilo R.V. Daniel, Director of the Research and Development
Department of PCGG.10 Witnesses testified on the bank accounts and businesses owned or
controlled by the Gimenez Spouses.11chanroblesvirtuallawlibrary

On February 27, 2006, the Sandiganbayan denied a motion to recall Danilo R.V. Daniel's
testimony.12 The Republic then manifested that it was "no longer presenting further
evidence."13 Accordingly, the Sandiganbayan gave the Republic 30 days or until March 29,
2006 "to file its formal offer of evidence."14chanroblesvirtuallawlibrary

On March 29, 2006, the Republic moved "for an extension of thirty (30) days or until April
28, 2006, within which to file [its] formal offer of evidence."15 This Motion was granted by
the Sandiganbayan in a Resolution of the same date.16chanroblesvirtuallawlibrary

On April 27, 2006, the Republic moved for an additional 15 days or until May 13, 2006
within which to file its Formal Offer of Evidence.17 This Motion was granted by the
Sandiganbayan in a Resolution dated May 8, 2006.18 Following this, no additional Motion
for extension was filed by the Republic.

In the first assailed Resolution dated May 25, 2006, the Sandiganbayan noted that the
Republic failed to file its Formal Offer of Evidence notwithstanding repeated extensions and
the lapse of 75 days from the date it terminated its presentation of evidence.19 Thus, it
declared that the Republic waived the filing of its Formal Offer of
Evidence.20chanroblesvirtuallawlibrary

The first assailed Resolution provides:

It appearing that the plaintiff has long terminated the presentation of its evidence on
February 27, 2006, and it appearing further that it failed or otherwise neglected to file its
written formal offer of evidence for an unreasonable period of time consisting of 75 days
(i.e., 30 days original period plus two extension periods totaling 45 days), the filing of said
written formal offer of evidence is hereby deemed WAIVED.

WHEREFORE, the reception of the defendants' evidence shall proceed on June 22 and 23,
2006, both at 8:30 o'clock [sic] in the morning as previously scheduled.21chanrobleslaw

Ignacio Gimenez filed a Motion to Dismiss on Demurrer to Evidence dated May 30,
2006.22 He argued that the Republic showed no right to relief as there was no evidence to
support its cause of action.23 Fe Roa Gimenez filed a Motion to Dismiss dated June 13,
2006 on the ground of failure to prosecute.24 Through her own Motion to Dismiss, she
joined Ignacio Gimenez's demurrer to evidence.25cralawred

Two days after Fe Roa Gimenez's filing of the Motion to Dismiss or on June 15, 2006, the
Republic filed a Motion for Reconsideration [of the first assailed Resolution] and to Admit
Attached Formal Offer of Evidence.26 The pertinent portions of the Republic's offer of
documentary exhibits attached to the Motion are summarized as follows:

Exhibits A to G and series consist of the Income Tax Returns, Certificate of Income Tax
Withheld On Compensation, Statement of Tax Withheld At Source, Schedule of Interest
Income, Royalties and Withholding Tax, Statement of Assets, Liabilities & Net Worth of
Ignacio B. Gimenez from 1980-1986 proving his legitimate income during said
period. Exhibits H -J and series refer to the Deeds of Sale and Transfer Certificates of Title
proving that spouses Gimenezes acquired several real properties.

Exhibits K and series (K-1-K-4) pertain to Checking Statements Summary issued by the
Bankers Trust Company (BTC) proving that Fe Roa Gimenez maintained a current account
under Account Number 34-714-415 with BTC. Exhibits L and series (L1-L-114) are
several BTC checks, proving that from June 1982 to April 1984, Fe Roa Gimenez issued
several checks against her BTC Current Account No. 34-714-415 payable to some
individuals and entities such as Erlinda Oledan, Vilma Bautista, The Waldorf Towers,
Cartier, Gliceria Tantoco, Bulgari, Hammer Galleries and Renato Balestra, involving
substantial amount of money in US Dollars. Exhibits M and series (M1-M-25) are several
The Chase Manhattan Bank (TCMB) checks drawn against the account of Fe Roa Gimenez
under Account Number 021000021, proving that she issued several checks drawn against
her TCMB account, payable to individuals and entities such as Gliceria Tantoco, Vilma
Bautista and The Waldorf Towers, involving substantial sums in US Dollars. Exhibit N is
the Philippine National Bank (PNB), New York Branch Office Charge Ticket No. FT 56880
dated December 9, 1982 in the amount of US$30,000.00 for Fe Roa Gimenez proving that
she received said enormous amount from the PNB, New York Branch Office, with clearance
from the Central Bank, which amount was charged against PNB Manila. Exhibit N-1 is the
PNB New York Branch Advice to Payee No. FT 56535 dated November 12, 1982 in the
amount of US$10,990.00 for Fe Roa Gimenez proving her receipt of such amount as
remitted from California Overseas Bank, Los Angeles. Exhibits O and series (O1-O-8) refer
to several Advices made by Bankers Trust AG Zurich-Geneve Bank in Switzerland to
respondent Fe Roa Gimenez proving that she maintained a current account with said bank
under Account Number 107094.50 and that from July 30, 1984 to August 30, 1984, she
placed a substantial amount on time deposit in several banks, namely, Hypobank,
Luzemburg, Luxemburg, Societe Generale, Paris and Bank of Nova Scotia, London.

Exhibit P is the Certification dated March 19, 2002 issued by Director Florino O. Ibanez of
the Office of the President proving that Fe Roa Gimenez, from January 1, 1966 to April 1,
1986, worked with the Office of the President under different positions, the last of which as
Presidential Staff Director with a salary of P87,072.00 per annum.

Exhibit Q and series (Q-1-Q-18) is the Affirmation of Ralph Shapiro filed with the United
States Court of Appeals in the case entitled, "The Republic of the Philippines vs. Ferdinand
E. Marcos, et al." which discussed certain acts of Fe Roa Gimenez and Vilma Bautista,
among others, in relation to the funds of the Marcoses.

Exhibits R and S and series (R-1, R-9; S-1-S-10) refer to the Certificate of Filing of
Amended Articles of Incorporation of GEI Guaranteed Education, Inc., the Amended
Articles of Incorporation of GEI Guaranteed Education, Inc., the Treasurer's Affidavit
executed by Ignacio Gimenez and the Director's Certificate executed by Roberto B. Olanday,
Ignacio Gimenez and Roberto Coyuto, Jr. proving Ignacio Gimenez and Roberto Olanday's
interests in GEI Guaranteed Education, Inc.

Exhibits T and series (T-1-T-8) are the Advices made by the Bankers Trust AG Zurich-
Geneve Bank in Switzerland to Ignacio Gimenez proving that he maintained a current
account with said bank under Account Number 101045.50 and that from March to June,
1984, he placed a substantial amount on time deposit in several banks, namely, Credit
Lyonnais, Brussels, Societe Generate, Paris, Credit Commercial De France, Paris and Bank
of Nova Scotia, London.

Exhibits U and V and series (U-1-U-5; V1-V-18) consist of the Affidavit dated April 25,
1986 and the Declaration dated June 23, 1987 including the attachments, of Oscar Carino,
Vice-President and Manager of the PNB New York Branch, narrating in detail how the funds
of the PNB New York Branch were disbursed outside regular banking business upon the
instructions of former President Ferdinand E. Marcos and Imelda Marcos using Fe Roa
Gimenez and others as conduit.

Exhibits W and series (W-1-W-4) are the Debit memos from the PNB to Fe Roa Gimenez
while Exhibits X and X-1 are the Acknowledgments of said respondent, proving that she
received substantial amounts of money which were coursed through the PNB to be used by
the Marcos spouses for state visits and foreign trips.

Exhibit Y and series (Y-1-Y-2) is the Letter dated August 25, 1986 of Juan C. Gatmaitan,
Assistant Chief Legal Counsel of PNB to Charles G. LaBella, Assistant United States
Attorney regarding the ongoing investigation of irregular transactions at the PNB, New York
Branch proving that PNB cooperated with the United States government in connection with
the investigation on the irregular transactions of Oscar Carino at PNB New York Branch.

Exhibit Z is the service record of Fe Roa Gimenez issued by Florino O. Ibanez of the Office
of the President which proves that she worked with the Office of the President from 1966-
1986 holding different positions, the last of which was Presidential Staff Director.

Exhibits AA and series (AA-1-AA-2) are the several Traders Royal Bank checks drawn
against Account No. 74-702836-9 under the account name of Fe Roa Gimenez which prove
that she issued said checks payable to individuals and entities involving substantial
amount of money.

Exhibits BB and CC and series (BB-1-BB-17; CC-1-CC-3) are the several Transfer of
Funds Advice from Traders Royal Bank Statements of Account of Fe Roa Gimenez, proving
that she maintained a current account under Account No. 74-7028369 at Traders Royal
Bank.

Exhibits HH and series (HH-1-HH-3) are the Certification dated October 3, 2002 of
Lamberto R. Barbin, Officer-in-Charge, Malacanang Records Office, that the Statement of
Assets and Liabilities of spouses Marcoses for the years 1965 up to 1986 are not among the
records on file in said Office except 1965, 1967 and 1969; the Statement of Assets and
Liabilities as of December 31, 1969 and December 31, 1967 of former President Ferdinand
Marcos; and the Sworn Statement of Financial Condition, Assets, Income and Liabilities as
of December 31, 1965 of former President Ferdinand Marcos. These documentary exhibits
prove the assets and liabilities of former President Marcos for the years 1965, 1967 and
1969.

Exhibit II and series is [sic] the Statement of Assets and Liabilities as of December
31,1969 submitted by Fe Roa Gimenez which prove that her assets on that period
amounted only to P39,500.00.

Exhibit KK is the Table of Contents of Civil Case No. [0]007 before the Sandiganbayan
entitled "Republic of the Philippines vs. Ignacio B. Gimenez and Fe Roa Gimenez, et. al.",
including its Annexes which prove the assets and liabilities of spouses Gimenezes.

Exhibits KK-1 up to KK-12 are several transfer certificates of title and tax declarations in
the names of spouses Gimenezes, proving their acquisition of several real properties.

Exhibits KK-15, KK-18, KK-20 up to KK-27, KK-30, KK-32 up to KK-38 and KK-40 are
the General Information Sheet, Certificate of Filing of Amended Articles of Incorporation,
and Amended Articles of Incorporation of various corporations. These prove the
corporations in which Ignacio B. Gimenez has substantial interests.

Exhibits KK-41 up to KK-44 are the Writs and Letters of Sequestration issued by the
PCGG which prove that the shares of stocks of Ignacio Gimenez in Ignacio B. Gimenez,
Securities, Inc. and the real properties covered by Transfer Certificates of Title Nos. 137638,
132807, 126693 and 126694 located in San Fabian, Pangasinan, were sequestered by the
PCGG.

Exhibit KK-45 is the Memorandum dated August 1, 1988 of Atty. Ralph S. Lee and
Alexander M. Berces, Team Supervisor and Investiogator, [sic] respectively, of IRD, PCGG,
proving that the PCGG conducted an investigation on New City Builders, Inc.,
Transnational Construction Corporation, and OTO Construction and Development
Corporation in relation to Ignacio B. Gimenez and Roberto O. Olanday.

Exhibits KK-48, KK-49 and KK-50 are certain Lis Pendens from the PCGG addressed to
the concerned Register of Deeds informing that the real properties mentioned therein had
been sequestered and are the subject of Civil Case No. [0]007 before the Sandiganbayan.

Exhibits KK-51, KK-51-A, KK-52 and KK-52-A are the Letter and Writ of Sequestration
issued by the PCGG on Allied Banking Corporation and Guaranteed Education Inc.
pursuant to its mandate to go after ill-gotten wealth.

Exhibits NN, 00, PP, QQ and QQ-1 refer to the Memorandum To All Commercial Banks
dated March 14, 1986 issued by then Central Bank Governor Jose B. Fernandez and the
Letter dated March 13, 1986 of Mary Concepcion Bautista, PCGG Commissioner addressed
to then Central Bank Governor Fernandez requesting that names be added to the earlier
request of PCGG Chairman Jovito Salonga to instruct all commercial banks not to allow
any withdrawal or transfer of funds from the market placements under the names of said
persons, to include spouses Gimenezes, without authority from PCGG.

Exhibits KK and series, NN, OO, PP, QQ and QQ-1 which prove the various real
properties, business interests and bank accounts owned by spouses Gimenezes were part
of the testimony of Atty. Tereso Javier.

Exhibit RR and series (RR-1-RR-23) are the Affidavit dated July 24, 1987 of Dominador
Pangilinan, Acting President and President of Trader's Royal Bank, and the attached
Recapitulation, Status of Banker's Acceptances, Status of Funds and Savings Account
Ledger wherein he mentioned that Malacanang maintained trust accounts at Trader's Royal
Bank, the balance of which is approximately 150-175 million Pesos, and that he was
informed by Mr. Rivera that the funds were given to him (Rivera) by Fe Roa Gimenez for
deposit to said accounts.

Exhibits SS and series (SS-1-SS-29) are the Affidavit dated July 23, 1987 of Apolinario K.
Medina, Executive Vice President of Traders Royal Bank and attachments, which include
Recapitulation, Status of Funds, and Messages from Traders Royal Bank Manila to various
foreign banks. In his Affidavit, Medina divulged certain numbered confidential trust
accounts maintained by Malacanang with the Trader's Royal Bank. He further stated that
the deposits were so substantial that he suspected that they had been made by President
Marcos or his family.

Exhibit TT and series (TT-1-TT-3) is [sic] the Memorandum dated July 19, 2005 of Danilo
R.V. Daniel, then Director of the Research and Development Department of PCGG regarding
the investigation conducted on the ill-gotten wealth of spouses Gimenezes, the subject
matter of Civil Case No. [0]007. He revealed that during the investigation on the ill-gotten
wealth of spouses Gimenezes, it was found out that from 1977 to 1982, several
withdrawals, in the total amount of P75,090,306.42 were made from Trust Account No. 128
(A/C 76-128) in favor of I.B. Gimenez, I.B. Gimenez Securities and Fe Roa Gimenez.

Exhibits RR, SS, TT and their series prove that spouses Gimenez maintained bank
accounts of substantial amounts and gained control of various corporations. These are also
being offered as part of the testimony of Danilo R.V. Daniel.27 (Emphasis in the original,
citations omitted)

In the second assailed Resolution dated September 13, 2006, the Sandiganbayan denied
the Republic's Motion for Reconsideration and granted the Gimenez Spouses' Motion to
Dismiss.28 According to the Sandiganbayan:
While it is true that litigation is not a game of technicalities and that the higher ends of
substantial justice militate against dismissal of cases purely on technical grounds, the
circumstances of this case show that the ends of justice will not be served if this Court
allows the wanton disregard of the Rules of Court and of the Court's orders. Rules of
procedure are designed for the proper and prompt disposition of cases. . . .

The reasons invoked by the plaintiff to justify its failure to timely file the formal offer of
evidence fail to persuade this Court. The missing exhibits mentioned by the plaintiff's
counsel appear to be the same missing documents since 2004, or almost two (2) years ago.
The plaintiff had more than ample time to locate them for its purpose. . . . Since they
remain missing after lapse of the period indicated by the Court, there is no reason why the
search for these documents should delay the filing of the formal offer of evidence.

[Petitioner's] counsel . . . admits that faced with other pressing matters, he lost track of the
time. We cannot just turn a blind eye on the negligence of the parties and in their failure to
observe the orders of this Court. The carelessness of [petitioner's] counsel in keeping track
of the deadlines is an unacceptable reason for the Court to set aside its Order and relax the
observance of the period set for filing the formal offer of evidence.29 (Citation omitted)

The Sandiganbayan also found that the Republic failed to prosecute its case for an
unreasonable length of time and to comply with the court's rules.30 The court also noted
that the documentary evidence presented by the Republic consisted mostly of certified true
copies.31 However, the persons who certified the documents as copies of the original were
not presented.32 Hence, the evidence lacked probative value.33 The dispositive portion of the
assailed Resolution reads:

ACCORDINGLY, there being no valid and cogent justification shown by the plaintiff for the
Court to Grant its Motion for Reconsideration and admit its Formal Offer of Evidence, the
plaintiff's Motion for Reconsideration and to Admit Attached Formal Offer of Evidence
is DENIED. The Motion to Dismiss on Demurrer to Evidence filed by the defendant Ignacio
B. Gimenez and adopted by defendant Fe Roa Gimenez is GRANTED. The case is
then DISMISSED.

SO ORDERED.34 (Emphasis in the original)

The Republic filed its Petition for Review on Certiorari dated November 3, 2006 before this
court.35chanroblesvirtuallawlibrary

The Gimenez Spouses were required to comment on the Petition.36 This court noted the
separate Comments37 filed by the Gimenez Spouses.38 The Republic responded to the
Comments through a Consolidated Reply39 dated June 22, 2007.

In the Resolution40 dated August 29, 2007, this court required the parties to submit their
memoranda.41chanroblesvirtuallawlibrary

On February 18, 2008, this court resolved to require the parties to "move in the
premises[.]"42chanroblesvirtuallawlibrary

On March 2, 2012, the Republic filed a Motion for Leave to Re-open Proceedings, to File and
Admit Attached Supplement to the Petition for Certiorari.43 In this Supplement, the
Republic argued that the second assailed Resolution dated September 13, 2006 was void
for failing to state the facts and the law on which it was based.44 This Motion was granted,
and the Gimenez Spouses were required to file their Comment on the Supplement to the
Petition.45 Thereafter, the Republic filed its Reply.46chanroblesvirtuallawlibrary

Fe Roa Gimenez filed a Rejoinder47 dated December 19, 2012 which was expunged by this
court in a Resolution48 dated January 23, 2013. Ignacio Gimenez's Motion for Leave to File
and Admit Attached Rejoinder49 was denied.50chanroblesvirtuallawlibrary

The Republic raised the following issues:

Whether or not the Sandiganbayan gravely erred in dismissing the case in the light of the
allegations in the Complaint which were substantiated by overwhelming evidence presented
vis-a-vis the material admissions of spouses Gimenezes as their answer failed to specifically
deny that they were dummies of former President Ferdinand E. Marcos and that they
acquired illegal wealth grossly disproportionate to their lawful income in a manner
prohibited under the Constitution and Anti-Graft Statutes.

Whether or not the Sandiganbayan gravely erred in denying petitioner's Motion to Admit
Formal Offer of Evidence on the basis of mere technicalities, depriving petitioner of its right
to due process.

Whether or not the Sandiganbayan gravely erred in making a sweeping pronouncement

that petitioner's evidence do not bear any probative value.51chanrobleslaw

The issues for consideration of this court are:

First, whether a Petition for Review on Certiorari was the proper remedy to assail the
Sandiganbayan Resolutions; and

Second, whether the Sandiganbayan erred in holding that petitioner Republic of the
Philippines waived the filing of its Formal Offer of Evidence and in granting respondents
Ignacio Gimenez and Fe Roa Gimenez's Motion to Dismiss on demurrer to evidence.

We grant the Petition.chanRoblesvirtualLawlibrary

Respondent Ignacio Gimenez pictures petitioner as being confused as to the proper mode of
review of the Sandiganbayan Resolutions. According to him, petitioner claims that the
Sandiganbayan committed grave abuse of discretion.52 Hence, petitioner should have filed a
petition for certiorari under Rule 65 and not a petition for review under Rule 45 of the
Rules of Court.53 Nevertheless, the Sandiganbayan did not commit any error, and petitioner
has to show that the Sandiganbayan committed grave abuse of discretion amounting to
lack of or in excess of jurisdiction.54chanroblesvirtuallawlibrary

Observance of the proper procedure before courts, especially before the Sandiganbayan,
cannot be stressed enough. Due process is enshrined in the Constitution, specifically the
Bill of Rights.55 "Due process [in criminal cases] guarantees the accused a presumption of
innocence until the contrary is proved[.]"56 "Mere suspicion of guilt should not sway
judgment."57chanroblesvirtuallawlibrary

To determine whether a petition for review is the proper remedy to assail the
Sandiganbayan Resolutions, we review the nature of actions for reconveyance, revision,
accounting, restitution, and damages.

Actions for reconveyance, revision, accounting, restitution, and damages for ill-gotten
wealth are also called civil forfeiture proceedings.

Republic Act No. 137958 provides for the procedure by which forfeiture proceedings may be
instituted against public officers or employees who "[have] acquired during his [or her]
incumbency an amount of property which is manifestly out of proportion to his [or her]
salary as such public officer or employee and to his [or her] other lawful income and the
income from legitimately acquired property, [which] property shall be presumed prima facie
to have been unlawfully acquired."59chanroblesvirtuallawlibrary

This court has already settled the Sandiganbayan's jurisdiction over civil forfeiture cases:

. . . violations of R.A. No. 1379 are placed under the jurisdiction of the Sandiganbayan,
even though the proceeding is civil in nature, since the forfeiture of the illegally acquired
property amounts to a penalty.60chanroblesvirtuallawlibrary

In Garcia v. Sandiganbayan, et al.,61 this court re-affirmed the doctrine that forfeiture
proceedings under Republic Act No. 1379 are civil in nature.62 Civil forfeiture proceedings
were also differentiated from plunder cases:

. . . a forfeiture case under RA 1379 arises out of a cause of action separate and different
from a plunder case. ... In a prosecution for plunder, what is sought to be established is the
commission of the criminal acts in furtherance of the acquisition of ill-gotten wealth. . . .
On the other hand, all that the court needs to determine, by preponderance of evidence,
under RA 1379 is the disproportion of respondent's properties to his legitimate income, it
being unnecessary to prove how he acquired said properties. As correctly formulated by the
Solicitor General, the forfeitable nature of the properties under the provisions of RA 1379
does not proceed from a determination of a specific overt act committed by the respondent
public officer leading to the acquisition of the illegal wealth.63 (Citation omitted)

To stress, the quantum of evidence required for forfeiture proceedings under Republic Act
No. 1379 is the same with other civil cases — preponderance of
evidence.64chanroblesvirtuallawlibrary

When a criminal case based on demurrer to evidence is dismissed, the dismissal is

equivalent to an acquittal.65chanroblesvirtuallawlibrary

As a rule, once the court grants the demurrer, the grant amounts to an acquittal; any
further prosecution of the accused would violate the constitutional proscription on double
jeopardy.66chanrobleslaw

Hence, the Republic may only assail an acquittal through a petition for certiorari under
Rule 65 of the Rules of Court:

Accordingly, a review of a dismissal order of the Sandiganbayan granting an accused's

demurrer to evidence may be done via the special civil action of certiorari under Rule 65,
based on the narrow ground of grave abuse of discretion amounting to lack or excess of
jurisdiction.67 (Citation omitted)

In this case, a civil forfeiture under Republic Act No. 1379, petitioner correctly filed a
Petition for Review on Certiorari under Rule 45 of the Rules of Court. Section 1 of the Rule
provides the mode of appeal from judgments, final orders, or resolutions of the
Sandiganbayan:

SECTION 1. Filing of petition with Supreme Court.— A party desiring to appeal by certiorari
from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan,
the Regional Trial Court or other courts whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition shall raise only
questions of law which must be distinctly set forth.

II

Petitioner argues that substantial justice requires doing away with the procedural
technicalities.68 Loss of vital documentary proof warranted extensions to file the Formal
Offer of Evidence.69 Honest efforts to locate several missing documents resulted in
petitioner's inability to file the pleading within the period granted by the
Sandiganbayan.70chanroblesvirtuallawlibrary

Respondent Ignacio Gimenez argues that petitioner cannot fault the Sandiganbayan for its
incompetence during trial.71 Even if the evidence were formally offered within the
prescribed period, PCGG's evidence still had no probative value.72 It is solely petitioner's
fault "that the persons who certified to the photocopies of the originals were not presented
to testify [.]"73 It is also misleading to argue that the pieces of documentary evidence
presented are public documents.74 "The documents are not public in the sense that these
are official issuances of the Philippine government."75 "The bulk consists mainly of
notarized, private documents that have simply been certified true and
faithful."76chanroblesvirtuallawlibrary

According to respondent Fe Roa Gimenez, petitioner tries to excuse its non-filing of the
Formal Offer of Evidence within the prescribed period by raising its efforts to locate the 66
missing documents.77However, the issue of the missing documents was laid to rest during
the hearing on November 16, 2004.78 The Sandiganbayan gave petitioner until March 2005
to produce the documents; otherwise, these would be excluded.79 The testimonies of the
witnesses related to the missing documents would also be expunged from the case
records.80chanroblesvirtuallawlibrary

Moreover, respondent Fe Roa Gimenez claims that "[t]he Sandiganbayan did not err when it
ruled that the great bulk of the documentary evidence offered by the PCGG have no
probative value."81 Aside from the 66 missing documents it failed to present, almost all of
petitioner's pieces of documentary evidence were mere photocopies.82 The few that were
certified true copies were not testified on by the persons who certified these
documents.83chanroblesvirtuallawlibrary

Our Rules of Court lays down the procedure for the formal offer of evidence. Testimonial
evidence is offered "at the time [a] witness is called to testify."84 Documentary and object
evidence, on the other hand, are offered "after the presentation of a party's testimonial
evidence."85 Offer of documentary or object evidence is generally done orally unless
permission is given by the trial court for a written offer of
evidence.86chanroblesvirtuallawlibrary

More importantly, the Rules specifically provides that evidence must be formally offered to
be considered by the court. Evidence not offered is excluded in the determination of the
case.87 "Failure to make a formal offer within a considerable period of time shall be deemed
a waiver to submit it."88chanroblesvirtuallawlibrary

Rule 132, Section 34 provides:

SEC. 34. Offer of evidence.— The court shall consider no evidence which has not been
formally offered. The purpose for which the evidence is offered must be specified.

The rule on formal offer of evidence is intertwined with the constitutional guarantee of due
process. Parties must be given the opportunity to review the evidence submitted against
them and take the necessary actions to secure their case.89 Hence, any document or object
that was marked for identification is not evidence unless it was "formally offered and the
opposing counsel [was] given an opportunity to object to it or cross-examine the witness
called upon to prove or identify it."90chanroblesvirtuallawlibrary

This court explained further the reason for the rule:

The Rules of Court 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. On the other hand, this 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 trial court.91 (Emphasis supplied, citations omitted)

To consider a party's evidence which was not formally offered during trial would deprive the
other party of due process. Evidence not formally offered has no probative value and must
be excluded by the court.92chanroblesvirtuallawlibrary

Petitioner's failure to file its written Formal Offer of Evidence of the numerous documentary
evidence presented within the prescribed period is a non-issue. In its first assailed
Resolution dated May 25, 2006, the Sandiganbayan declared that petitioner waived the
filing of its Formal Offer of Evidence when it failed to file the pleading on May 13, 2006, the
deadline based on the extended period granted by the court. Petitioner was granted several
extensions of time by the Sandiganbayan totalling 75 days from the date petitioner
terminated its presentation of evidence. Notably, this 75-day period included the original
30-day period. Subsequently, petitioner filed a Motion for Reconsideration and to Admit
Attached Formal Offer of Evidence, and the Formal Offer of Evidence.

In resolving petitioner's Motion for Reconsideration and to Admit Attached Formal Offer of
Evidence, the Sandiganbayan found the carelessness of petitioner's counsel unacceptable.
According to the Sandiganbayan, it could not countenance the non-observance of the
court's orders.

This court has long acknowledged the policy of the government to recover the assets and
properties illegally acquired or misappropriated by former President Ferdinand E. Marcos,
his wife Mrs. Imelda R. Marcos, their close relatives, subordinates, business associates,
dummies, agents or nominees.93 Hence, this court has adopted a liberal approach
regarding technical rules of procedure in cases involving recovery of ill-gotten wealth:

In all the alleged ill-gotten wealth cases filed by the PCGG, this Court has seen fit to set aside
technicalities and formalities that merely serve to delay or impede judicious resolution. This
Court prefers to have such cases resolved on the merits at the Sandiganbayan. But
substantial justice to the Filipino people and to all parties concerned, not mere legalisms or
perfection of form, should now be relentlessly and firmly pursued. Almost two decades have
passed since the government initiated its search for and reversion of such ill-gotten wealth.
The definitive resolution of such cases on the merits is thus long overdue. If there is proof
of illegal acquisition, accumulation, misappropriation, fraud or illicit conduct, let it be
brought out now. Let the ownership of these funds and other assets be finally determined
and resolved with dispatch, free from all the delaying technicalities and annoying
procedural sidetracks.94 (Emphasis supplied, citation omitted)

To be clear, petitioner was able to file its Formal Offer of Evidence, albeit, belatedly.
Petitioner hurdled 19 years of trial before the Sandiganbayan to present its evidence as
shown in its extensive Formal Offer of Evidence. As petitioner argues:

Undeniable from the records of the case is that petitioner was vigorous in prosecuting the
case. The most tedious and crucial stage of the litigation and presentation of evidence has
been accomplished. Petitioner completed its presentation of evidence proving the ill-gotten
nature and character of the funds and assets sought to be recovered in the present case. It
presented vital testimonial and documentary evidence consisting of voluminous record
proving the gross disparity of the subject funds to spouses Gimenezes' combined declared
income which must be reconveyed to the Republic for being acquired in blatant violation of
the Constitution and the Anti-Graft statutes.95chanrobleslaw

This court is not unmindful of the difficulty in gathering voluminous documentary evidence
in cases of forfeiture of ill-gotten wealth acquired throughout the years. It is never easy to
prosecute corruption and take back what rightfully belongs to the government and the
people of the Republic.

This is not the first time that this court relaxed the rule on formal offer of evidence.

Tan v. Lim96 arose from two civil Complaints: one for injunction and another for legal
redemption, which were heard jointly before the trial court.97 The defendant did not file a
Formal Offer of Evidence in the injunction case98 and merely adopted the evidence offered
in the legal redemption case.99 The trial court held that the defendant's failure to file his
Formal Offer of Evidence in the injunction case rendered the plaintiff's evidence therein as
uncontroverted.100 The Court of Appeals reversed the Decision and was affirmed by this
court.101 This court ruled that while the trial court's reasoning in its Decision was
technically sound, a liberal interpretation was more appropriate and in line with
substantial justice:

It may be true that Section 34, Rule 132 of the rules directs the court to consider no evidence
which has not been formally offered and that under Section 35, documentary evidence is
offered after presentation of testimonial evidence. However, a liberal interpretation of these
Rules would have convinced the trial court that a separate formal offer of evidence in Civil
Case No. 6518 was superfluous because not only was an offer of evidence made in Civil
Case No. 6521 that was being jointly heard by the trial court, counsel for Jose Renato Lim
had already declared he was adopting these evidences for Civil Case No. 6518. The trial
court itself stated that it would freely utilize in one case evidence adduced in the other only
to later abandon this posture. Jose Renato Lim testified in Civil Case No. 6518. The trial
court should have at least considered his testimony since at the time it was made, the rules
provided that testimonial evidence is deemed offered at the time the witness is called to
testify. Rules of procedure should not be applied in a very rigid, technical case as they are
devised chiefly to secure and not defeat substantial justice.
....

The logic of the Court of Appeals is highly persuasive. Indeed, apparently, the trial court was
being overly technical about the non-submission of Jose Renato Lim's formal offer of evidence.
This posture not only goes against Section 6, Rule 1 of the Rules of Civil Procedure decreeing
a liberal construction of the rules to promote a just, speedy and inexpensive litigation but
ignores the consistent rulings of the Court against utilizing the rules to defeat the ends of
substantial justice. Despite the intervening years, the language of the Court in Manila
Railroad Co. vs. Attorney-General, still remains relevant:ChanRoblesVirtualawlibrary
"x x x. The purpose of procedure is not to thwart justice. Its proper aim is to facilitate the
application of justice to the rival claims of contending parties. It was created not to hinder
and delay but to facilitate and promote the administration of justice. It does not constitute
the thing itself which courts are always striving to secure to litigants. It is designed as the
means best adapted to obtain that thing. In other words, it is a means to an end. It is the
means by which the powers of the court are made effective in just judgments. When it loses
the character of the one and takes on that of the other the administration of justice
becomes incomplete and unsatisfactory and lays itself open to grave
criticism."102 (Emphasis supplied, citations omitted)

Furthermore, "subsequent and substantial compliance . . . may call for the relaxation of the
rules of procedure."103chanroblesvirtuallawlibrary

Weighing the amount of time spent in litigating the case against the number of delays
petitioner incurred in submitting its Formal Offer of Evidence and the state's policy on
recovering ill-gotten wealth, this court is of the belief that it is but only just that the Rules
be relaxed and petitioner be allowed to submit its written Formal Offer of Evidence. The
Sandiganbayan's Resolutions should be reversed.chanRoblesvirtualLawlibrary

III

According to petitioner, the Sandiganbayan erred when it granted the demurrer to evidence
filed by respondents and dismissed the case despite a "prima facie foundation [based on the
pleadings and documents on record] that spouses Gimenezes amassed enormous wealth
grossly disproportionate to their lawful income or declared lawful
assets."104chanroblesvirtuallawlibrary

Similarly, the Complaint alleged specific acts committed by respondent Ignacio Gimenez:

[T]aking undue advantage of his relationship, influence, and connection, by himself and/or
in unlawful concert and active collaboration with former President Ferdinand E. Marcos
and Imelda R. Marcos for the purpose of mutually enriching themselves and preventing the
disclosure and recovery of assets illegally obtained: (a) acted as the dummy, nominee or
agent of former President Ferdinand E. Marcos and Imelda R. Marcos in several
corporations such as, the Allied Banking Corporation, Acoje Mining Corporation, Baguio
Gold Mining, Multi National Resources, Philippine Oversees, Inc. and Pioneer Natural
Resources; (b) unlawfully obtained, through corporations organized by them such as the
New City Builders, Inc. (NCBI), multi-million peso contracts with the government buildings,
such as the University of Life Sports Complex and Dining Hall as well as projects of the
National Manpower Corporation, Human Settlements, GSIS, and Maharlika Livelihood, to
the gross and manifest disadvantage of the Government and the Filipino people; and (c) in
furtherance of the above stated illegal purposes, organized several establishments engaged
in food, mining and other businesses such as the Transnational Construction Corporation,
Total Systems Technology, Inc., Pyro Control Technology Corporation, Asian Alliance, Inc.,
A & T Development Corporation, RBO Agro Forestry Farm Development Corporation,
Bathala Coal Mining Corporation, Coal Basis Mining Corporation, Titan Coal Mining
Corporation, GEI Guaranteed Education, Inc., and I.B. Gimenez Securities,
Inc.105chanrobleslaw

Despite the specific allegations in the Complaint, petitioner contends that respondents
merely gave general denials to the allegations in the Complaint.106 "[N]o specific denial [was]
made on the material allegations [in] the [C]omplaint."107chanroblesvirtuallawlibrary

Respondents, on the other hand, assert that the Sandiganbayan was correct in granting the
Motion to Dismiss on demurrer to evidence.

Respondent Ignacio Gimenez claims that petitioner cannot be excused from filing its Formal
Offer of Evidence considering the numerous extensions given by the Sandiganbayan.
Petitioner had all the resources and time to gather, collate, and secure the necessary
evidence to build its case.108chanroblesvirtuallawlibrary

Petitioner's presentation of evidence took 19 years to complete, and yet it failed to submit
the necessary documents and pleading.109chanroblesvirtuallawlibrary

Similarly, respondent Fe Roa Gimenez argues that petitioner was negligent in failing to
comply with the Sandiganbayan's orders considering the inordinate amount of time given to
petitioner to present evidence, which resulted in only five witnesses in 19
years.110chanroblesvirtuallawlibrary

To determine the propriety of granting respondents' Motion to Dismiss based on Demurrer

to Evidence, we review the nature of demurrer.
Rule 33, Section 1 of the Rules of Court provides:

SECTION 1. Demurrer to evidence.— After the plaintiff has completed the presentation of
his evidence, the defendant may move for dismissal on the ground that upon the facts and
the law the plaintiff has shown no right to relief. If his motion is denied, he shall have the
right to present evidence. If the motion is granted but on appeal the order of dismissal is
reversed he shall be deemed to have waived the right to present evidence.

In Oropesa v. Oropesa111 where this court affirmed the dismissal of the case on demurrer to
evidence due to petitioner's non-submission of the Formal Offer of Evidence,112 demurrer to
evidence was defined as:

. . . "an objection by one of the parties in an action, to the effect that the evidence which his
adversary produced is insufficient in point of law, whether true or not, to make out a case
or sustain the issue." We have also held that a demurrer to evidence "authorizes a
judgment on the merits of the case without the defendant having to submit evidence on his
part, as he would ordinarily have to do, if plaintiff's evidence shows that he is not entitled
to the relief sought."113 (Citations omitted)

This court has laid down the guidelines in resolving a demurrer to evidence:

A demurrer to evidence may be issued when, upon the facts and the law, the plaintiff has
shown no right to relief. Where the plaintiffs evidence together with such inferences and
conclusions as may reasonably be drawn therefrom does not warrant recovery against the
defendant, a demurrer to evidence should be sustained. A demurrer to evidence is likewise
sustainable when, admitting every proven fact favorable to the plaintiff and indulging in his
favor all conclusions fairly and reasonably inferable therefrom, the plaintiff has failed to
make out one or more of the material elements of his case, or when there is no evidence to
support an allegation necessary to his claim. It should be sustained where the plaintiff's
evidence is prima facie insufficient for a recovery.114chanrobleslaw

Furthermore, this court already clarified what the trial court determines when acting on a
motion to dismiss based on demurrer to evidence:

What should be resolved in a motion to dismiss based on a demurrer to evidence is whether

the plaintiff is entitled to the relief based on the facts and the law. The evidence
contemplated by the rule on demurrer is that which pertains to the merits of the case,
excluding technical aspects such as capacity to sue. . . .115 (Emphasis supplied, citation
omitted)

Petitioner, in its Supplement to the Petition, argued that the testimonial evidence it had
presented and offered during trial warranted consideration and analysis.116 The
Sandiganbayan erroneously excluded these testimonies in determining whether to grant the
motion to dismiss or not, hence:

. . . even assuming that the Sandiganbayan denied petitioner's formal offer of evidence,
petitioner still had testimonial evidence in its favor which should [have] been considered. It
behoved then upon the Sandiganbayan to discuss or include in its discussion, at the very
least, an analysis of petitioner's testimonial evidence.117chanrobleslaw

With our ruling reversing the Sandiganbayan's Resolutions on petitioner's Formal Offer of
Evidence, what should be determined now by the Sandiganbayan is whether petitioner's
evidence is sufficient to entitle it to the relief it seeks after the Sandiganbayan rested its
case. Petitioner is required to establish preponderance of evidence.

In the second assailed Resolution, the Sandiganbayan granted respondents' Motion to

Dismiss based on the lack of Formal Offer of Evidence of petitioner. At the same time, it
observed that the pieces of documentary evidence presented by petitioner were mostly
certified true copies of the original. In passing upon the probative value of petitioner's
evidence, the Sandiganbayan held:

On another note, the evidence presented by the plaintiff consisted mainly of certified true
copies of the original. These certified copies of documentary evidence presented by the
plaintiff were not testified on by the person who certified them to be photocopies of the
original. Hence, these evidence do not appear to have significant substantial probative
value.118chanroblesvirtuallawlibrary

Petitioner faults the Sandiganbayan for making "a general and sweeping statement that the
evidence presented by petitioner lacked probative value for the reason that they are mainly
certified true copies which had not been testified on by the person who certified
[them]."119 Thus, its right to due process was violated when the Sandiganbayan rejected
petitioner's documentary evidence in the same Resolution which dismissed the
case.120chanroblesvirtuallawlibrary

Petitioner argues that: a) respondents unqualifiedly admitted the identity and authenticity
of the documentary evidence presented by petitioner;121 and b) the documents it presented
were public documents, and there was no need for the identification and authentication of
the original documentary exhibits.122 Petitioner relies on the Sandiganbayan Order123 dated
August 6, 2002. The Order reads:

Considering the manifestation of Atty. Reno Gonzales, counsel for plaintiff/PCGG, that
the defendant Fe Roa Gimenez, through counsel, is willing to stipulate that the documents to
be presented and identified by the witness are in her custody as Records Officer of the PCGG,
the parties agreed to dispense with the testimony of Ma. Lourdes Magno.

WHEREFORE, and as prayed for, the continuation of the presentation of plaintiff's evidence
is set on October 9 and 10, 2002, both at 8:30 o'clock [sic] in the morning.

SO ORDERED.124 (Emphasis supplied)

Petitioner claims that the following exhibits were acquired in relation to the PCGG's
functions prescribed under Executive Order No. 1, Section 3(b),125 and form part of the
official records of the PCGG:126"Certifications as to the various positions held in
Government by Fe Roa-Gimenez, her salaries and compensation during her stint as a
public officer, the BIR Income Tax Returns and Statement of Assets and Liabilities showing
the declared income of spouses Gimenezes; the Articles of Incorporation of various
corporations showing spouses Gimenezes' interests on various corporations; and several
transactions involving huge amounts of money which prove that they acted as conduit in
the disbursement of government funds."127chanroblesvirtuallawlibrary

On the other hand, respondent Ignacio Gimenez argues that petitioner's documents are not
"official issuances of the Philippine government."128 They are mostly notarized private
documents.129 Petitioner's evidence has no probative value; hence, a dismissal on demurrer
to evidence is only proper.130Respondent Fe Roa Gimenez claims that the Sandiganbayan
did not err in holding that the majority of petitioner's documentary evidence has no
probative value, considering that most of these documents are only
photocopies.131chanroblesvirtuallawlibrary

The evidence presented by petitioner before the Sandiganbayan deserves better treatment.

For instance, the nature and classification of the documents should have been ruled upon.
Save for certain cases, the original document must be presented during trial when the
subject of the inquiry is the contents of the document.132 This is the Best Evidence Rule
provided under Rule 130, Section 3 of the Rules of Court:

SEC. 3. Original document must be produced; exceptions.— When the subject of inquiry is
the contents of a document, no evidence shall be admissible other than the original
document itself, except in the following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court, without
bad faith on the part of the offeror;

(b) When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;

(c) When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from
them is only the general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is recorded in a
public office.

In case of unavailability of the original document, secondary evidence may be

presented133 as provided for under Sections 5 to 7 of the same Rule:

SEC. 5. When original document is unavailable.— When the original document has been lost
or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or
existence and the cause of its unavailability without bad faith on his part, may prove its
contents by a copy, or by a recital of its contents in some authentic document, or by the
testimony of witnesses in the order stated.

SEC. 6. When original document is in adverse party's custody or control. — If the document
is in the custody or under the control of adverse party, he must have reasonable notice to
produce it. If after such notice and after satisfactory proof of its existence, he fails to
produce the document, secondary evidence may be presented as in the case of its loss. (5a)

SEC. 7. Evidence admissible when original document is a public record.— When the original
of a document is in the custody of a public officer or is recorded in a public office, its contents
may be proved by a certified copy issued by the public officer in custody thereof.(Emphasis
supplied)

In Citibank, N.A. v. Sabeniano,134 citing Estrada v. Hon. Desierto,135 this court clarified the
applicability of the Best Evidence Rule:

As the afore-quoted provision states, the best evidence rule applies only when the subject of
the inquiry is the contents of the document. The scope of the rule is more extensively
explained thus —
But even with respect to documentary evidence, the best evidence rule applies only when
the content of such document is the subject of the inquiry.Where the issue is only as to
whether such document was actually executed, or exists, or on the circumstances relevant to
or surrounding its execution, the best evidence rule does not apply and testimonial evidence
is admissible (5 Moran, op. cit., pp. 76-66; 4 Martin, op. cit., p. 78). Any other substitutionary
evidence is likewise admissible without need for accounting for the original.

Thus, when a document is presented to prove its existence or condition it is offered not as
documentary, but as real, evidence. Parol evidence of the fact of execution of the documents
is allowed (Hernaez, et al. vs. McGrath, etc., et al., 91Phil[.]565).xxx

In Estrada v. Desierto, this Court had occasion to rule that —

It is true that the Court relied not upon the original but only [a] copy of the Angara Diary as
published in the Philippine Daily Inquirer on February 4-6, 2001. In doing so, the Court,
did not, however, violate the best evidence rule. Wigmore, in his book on evidence, states
that:

"Production of the original may be dispensed with, in the trial court's discretion, whenever
in the case in hand the opponent does not bona fide dispute the contents of the document
and no other useful purpose will be served by requiring
production.chanRoblesvirtualLawlibrary

"xxx xxx xxx

"In several Canadian provinces, the principle of unavailability has been abandoned, for
certain documents in which ordinarily no real dispute arised [sic]. This measure is a
sensible and progressive one and deserves universal adoption (post, sec. 1233). Its essential
feature is that a copy may be used unconditionally, if the opponent has been given an
opportunity to inspect it."
This Court did not violate the best evidence rule when it considered and weighed in evidence
the photocopies and microfilm copies of the PNs, MCs, and letters submitted by the petitioners
to establish the existence of respondent's loans. The terms or contents of these documents
were never the point of contention in the Petition at bar. It was respondent's position that
the PNs in the first set (with the exception of PN No. 34534) never existed, while the PNs in
the second set (again, excluding PN No. 34534) were merely executed to cover simulated
loan transactions. As for the MCs representing the proceeds of the loans, the respondent
either denied receipt of certain MCs or admitted receipt of the other MCs but for another
purpose. Respondent further admitted the letters she wrote personally or through her
representatives to Mr. Tan of petitioner Citibank acknowledging the loans, except that she
claimed that these letters were just meant to keep up the ruse of the simulated loans. Thus,
respondent questioned the documents as to their existence or execution, or when the former is
admitted, as to the purpose for which the documents were executed, matters which are,
undoubtedly, external to the documents, and which had nothing to do with the contents
thereof.

Alternatively, even if it is granted that the best evidence rule should apply to the evidence
presented by petitioners regarding the existence of respondent's loans, it should be borne in
mind that the rule admits of the following exceptions under Rule 130, Section 5 of the
revised Rules of Court[.]136 (Emphasis supplied, citation omitted)

Furthermore, for purposes of presenting these as evidence before courts, documents are
classified as either public or private. Rule 132, Section 19 of the Rules of Court provides:

SEC. 19. Classes of Documents.— For the purpose of their presentation in evidence,
documents are either public or private.

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority, official
bodies and tribunals, and public officers, whether of the Philippines, or of a foreign
country;

(b) Documents acknowledge before a notary public except last wills and testaments; and

(c) Public records, kept in the Philippines, of private documents required by law to be
entered therein.

All other writings are private.

The same Rule provides for the effect of public documents as evidence and the manner of
proof for public documents:

SEC. 23. Public documents as evidence.— 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. All other public documents are evidence, even against a third
person, of the fact which gave rise to their execution and of the date of the latter.

SEC. 24. Proof of official record.— The record of public documents referred to in paragraph
(a) of Section 19, when admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having the legal custody of the
record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with
a certificate that such officer has the custody. If the office in which the record is kept is in a
foreign country, the certificate may be made by a secretary of the embassy or legation,
consul general, consul, vice consul, or consular agent or by any officer in the foreign service
of the Philippines stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office.

SEC. 25. What attestation of copy must state.— Whenever a copy of a document or record
is attested for the purpose of evidence, the attestation must state, in substance, that the
copy is a correct copy of the original, or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting officer, if there be any, or if he be
the clerk of a court having a seal, under the seal of such court.
....
SEC. 27. Public record of a private document.— An authorized public record of a private
document may be proved by the original record, or by a copy thereof, attested by the legal
custodian of the record, with an appropriate certificate that such officer has the custody.
....
SEC. 30. Proof of notarial documents.— Every instrument duly acknowledged or proved
and certified as provided by law, may be presented in evidence without further proof, the
certificate of acknowledgment being prima facie evidence of the execution of the instrument
or document involved. (Emphasis supplied)
Emphasizing the importance of the correct classification of documents, this court
pronounced:

The nature of documents as either public or private determines how the documents may be
presented as evidence in court. A public document, by virtue of its official or sovereign
character, or because it has been acknowledged before a notary public (except a notarial
will) or a competent public official with the formalities required by law, or because it is a
public record of a private writing authorized by law, is self-authenticating and requires no
further authentication in order to be presented as evidence in court. In contrast, a private
document is any other writing, deed, or instrument executed by a private person without
the intervention of a notary or other person legally authorized by which some disposition or
agreement is proved or set forth. Lacking the official or sovereign character of a public
document, or the solemnities prescribed by law, a private document requires
authentication in the manner allowed by law or the Rules of Court before its acceptance as
evidence in court.137 (Emphasis supplied)

The distinction as to the kind of public document under Rule 132, Section 19 of the Rules
of Court is material with regard to the fact the evidence proves. In Philippine Trust Company
v. Hon. Court of Appeals, et al.,138 this court ruled that:

. . . not all types of public documents are deemed prima facie evidence of the facts therein
stated:

....

"Public records made in the performance of a duty by a public officer" include those
specified as public documents under Section 19(a), Rule 132 of the Rules of Court and the
acknowledgement, affirmation or oath, or jurat portion of public documents under Section
19(c). Hence, under Section 23, notarized documents are merely proof of the fact which gave
rise to their execution (e.g., the notarized Answer to Interrogatories . . . is proof that
Philtrust had been served with Written Interrogatories), and of the date of the latter (e.g.,
the notarized Answer to Interrogatories is proof that the same was executed on October 12,
1992, the date stated thereon), but is not prima facie evidence of the facts therein stated.
Additionally, under Section 30 of the same Rule, the acknowledgement in notarized
documents is prima facie evidence of the execution of the instrument or document involved
(e.g., the notarized Answer to Interrogatories is prima facie proof that petitioner executed
the same).

The reason for the distinction lies with the respective official duties attending the execution of
the different kinds of public instruments. Official duties are disputably presumed to have
been regularly performed. As regards affidavits, including Answers to Interrogatories which
are required to be sworn to by the person making them, the only portion thereof executed by
the person authorized to take oaths is the jurat. The presumption that official duty has been
regularly performed therefore applies only to the latter portion, wherein the notary public
merely attests that the affidavit was subscribed and sworn to before him or her, on the date
mentioned thereon. Thus, even though affidavits are notarized documents, we have ruled
that affidavits, being self-serving, must be received with caution.139 (Emphasis supplied,
citations omitted)

In Salas v. Sta. Mesa Market Corporation,140 this court discussed the difference between
mere copies of audited financial statements submitted to the Bureau of Internal Revenue
(BIR) and Securities and Exchange Commission (SEC), and certified true copies of audited
financial statements obtained or secured from the BIR or the SEC which are public
documents under Rule 132, Section 19(c) of the Revised Rules of Evidence:

The documents in question were supposedly copies of the audited financial statements of
SMMC. Financial statements (which include the balance sheet, income statement and
statement of cash flow) show the fiscal condition of a particular entity within a specified
period. The financial statements prepared by external auditors who are certified public
accountants (like those presented by petitioner) are audited financial statements. Financial
statements, whether audited or not, are, as [a] 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:

....

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,
authentication was a precondition to their admissibility in evidence.

During authentication in court, a witness positively testifies that a document presented as

evidence is genuine and has been duly executed or that the document is neither spurious
nor counterfeit nor executed by mistake or under duress. 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.141 (Emphasis supplied, citations omitted)

Indeed, in Republic v. Marcos-Manotoc,142 this court held that mere collection of documents
by the PCGG does not make such documents public documents per se under Rule 132 of
the Rules of Court:

The fact that these documents were collected by the PCGG in the course of its
investigations does not make them per se public records referred to in the quoted rule.

Petitioner presented as witness its records officer, Maria Lourdes Magno, who testified that
these public and private documents had been gathered by and taken into the custody of the
PCGG in the course of the Commission's investigation of the alleged ill-gotten wealth of the
Marcoses. However, given the purposes for which these documents were submitted, Magno
was not a credible witness who could testify as to their contents. To reiterate, "[i]f the
writings have subscribing witnesses to them, they must be proved by those witnesses."
Witnesses can testify only to those facts which are of their personal knowledge; that is,
those derived from their own perception. Thus, Magno could only testify as to how she
obtained custody of these documents, but not as to the contents of the documents
themselves.

Neither did petitioner present as witnesses the affiants of these Affidavits or Memoranda
submitted to the court. Basic is the rule that, while affidavits may be considered as public
documents if they are acknowledged before a notary public, these Affidavits are still
classified as hearsay evidence. The reason for this rule is that they are not generally
prepared by the affiant, but by another one who uses his or her own language in writing
the affiant's statements, parts of which may thus be either omitted or misunderstood by the
one writing them. Moreover, the adverse party is deprived of the opportunity to cross-
examine the affiants. For this reason, affidavits are generally rejected for being hearsay,
unless the affiants themselves are placed on the witness stand to testify
thereon.143(Citations omitted)

Notably, the Sandiganbayan's evaluation of the evidence presented by petitioner was

cursory. Its main reason for granting the Motion to Dismiss on Demurrer to Evidence was
that there was no evidence to consider due to petitioner's failure to file its Formal Offer of
Evidence. It brushed off the totality of evidence on which petitioner built its case.

Even assuming that no documentary evidence was properly offered, this court finds it clear
from the second assailed Resolution that the Sandiganbayan did not even consider other
evidence presented by petitioner during the 19 years of trial. The Sandiganbayan erred in
ignoring petitioner's testimonial evidence without any basis or justification. Numerous
exhibits were offered as part of the testimonies of petitioner's witnesses.
Petitioner presented both testimonial and documentary evidence that tended to establish a
presumption that respondents acquired ill-gotten wealth during respondent Fe Roa
Gimenez's incumbency as public officer and which total amount or value was manifestly
out of proportion to her and her husband's salaries and to their other lawful income or
properties.

Petitioner presented five (5) witnesses, two (2) of which were Atty. Tereso Javier and
Director Danilo R.V. Daniel, both from the PCGG:

Petitioner presented as witnesses Atty. Tereso Javier, then Head of the Sequestered Assets
Department of PCGG, and Danilo R.V. Daniel, then Director of the Research and
Development Department of PCGG, who testified on the bank accounts and businesses
owned and/ or under the control of spouses Gimenezes.144chanrobleslaw

Several exhibits excluded by the Sandiganbayan were offered as part of petitioner's

testimonial evidence:

1) Exhibit "KK"145 was offered "for the purpose of proving the assets or properties of the
spouses Ignacio B. Gimenez and Fe Roa Gimenez, and as part of the testimony of Tereso
Javier."146chanroblesvirtuallawlibrary

2) Exhibits "KK-1" to "KK-12"147 inclusive of sub-markings, were offered "for the purpose of
proving the real properties acquired by the spouses Ignacio B. Gimenez and Fe Roa
Gimenez, and as part of the testimony of Tereso Javier."148chanroblesvirtuallawlibrary

3) Exhibits "KK-15," "KK-18," "KK-20," "KK-27," "KK-30," "KK-32" to "KK-38" and "KK-
40"149 were offered "for the purpose of proving the corporations in which Ignacio B. Gimenez
has interest, and as part of the testimony of Tereso Javier."150chanroblesvirtuallawlibrary

4) Exhibit "KK-45"151 was offered "for the purpose of proving that the PCGG conducted an
investigation of New City Builders, Inc., Transnational Construction Corporation, and OTO
Construction and Development Corporation in relation to Ignacio B. Gimenez and Roberto
O. Olanday, and as part of the testimony of Tereso Javier."152chanroblesvirtuallawlibrary

5) Exhibits "KK-48" to "KK-50"153 were offered "for the purpose of proving that the PCGG
formally filed notices of lis pendens with the Registers of Deeds of Taytay, Rizal, Lucena
City, Quezon and San Fabian, Pangasinan over the properties mentioned in said notices in
connection with Civil Case No. [0]007 pending with the Sandiganbayan, and as part of the
testimony of Tereso Javier."154chanroblesvirtuallawlibrary

6) Exhibits "KK-51" to "KK-52"155 and their sub-markings were offered "for the purpose of
proving that the PCGG sequestered the shares of stock in Allied Banking Corporation and
Guaranteed Education, Inc. as stated in the said writ/letter of sequestration, and as part of
the testimony of Tereso Javier."156chanroblesvirtuallawlibrary

7) Exhibits "NN" to "QQ"157 and their sub-markings were offered "for the purpose of proving
that the PCGG formally requested the Central Bank to freeze the bank accounts of the
spouses Igancio [sic] B. Gimenez and Fe Roa Gimenez and that the Central Bank, acting on
said request, issued a memorandum to all commercial banks relative thereto. They are also
being offered as part of the testimony of Tereso Javier."158chanroblesvirtuallawlibrary

8) Exhibits "RR" to "RR-23"159 were offered "for the purpose of proving that Dominador
Pangilinan, former Acting President and President of Traders Royal Bank, executed an
affidavit on July 24, 1987 wherein he mentioned Malacanang trust accounts maintained
with the Traders Royal Bank the balance of which was very high, approximately 150-175
million pesos, as indicated in the monthly statements attached to his affidavit. They are
also being offered as part of the testimony of Danilo R.V.
Daniel."160chanroblesvirtuallawlibrary

9) Exhibits "SS" to "SS-29"161 were offered "for the purpose of proving that Apolinario K.
Medina, Executive Vice President of Traders Royal Bank, executed an Affidavit on July 23,
1987 wherein he mentioned about certain numbered (confidential) trust accounts
maintained with the Traders Royal Bank, the deposits to which 'were so substantial in
amount that (he) suspected that they had been made by President Marcos or his family.
They are also being offered as part of the testimony of Danilo R.V.
Daniel."162chanroblesvirtuallawlibrary
10) Exhibits "TT" to "TT-3"163 were offered "for the purpose of proving that Director Danilo
R.V. Daniel of the Research and Development Department of the PCGG conducted an
investigation on the ill-gotten wealth of the spouses Ignacio and Fe Roa Gimenez and found
that from 1977 to 1982, the total sum of P75,090,306.42 was withdrawn from the account
No. 128 (A/C 76-128) in favor of I.B Gimenez, I.B. Gimenez Securities and Fe Roa Gimenez.
They are also being offered as part of the testimony of Director Danilo R.V.
Daniel."164chanrobleslaw

The court cannot arbitrarily disregard evidence especially when resolving a demurrer to
evidence which tests the sufficiency of the plaintiff's evidence.

The difference between the admissibility of evidence and the determination of its probative
weight is canonical.165chanroblesvirtuallawlibrary

Admissibility of evidence refers to the question of whether or not the circumstance (or
evidence) is to [be] considered at all. On the other hand, the probative value of evidence
refers to the question of whether or not it proves an issue. Thus, a letter may be offered in
evidence and admitted as such but its evidentiary weight depends upon the observance of
the rules on evidence. Accordingly, the author of the letter should be presented as witness
to provide the other party to the litigation the opportunity to question him on the contents
of the letter. Being mere hearsay evidence, failure to present the author of the letter renders
its contents suspect. As earlier stated, hearsay evidence, whether objected to or not, has no
probative value.166 (Citations omitted)

The Sandiganbayan should have considered Atienza v. Board of Medicine, et al.167 where
this court held that it is better to admit and consider evidence for determination of its
probative value than to outright reject it based on very rigid and technical
grounds.168chanroblesvirtuallawlibrary

Although trial courts are enjoined to observe strict enforcement of the rules of evidence, in
connection with evidence which may appear to be of doubtful relevancy, incompetency, or
admissibility, we have held that:ChanRoblesVirtualawlibrary
[I]t is the safest policy to be liberal, not rejecting them on doubtful or technical grounds, but
admitting them unless plainly irrelevant, immaterial or incompetent, for the reason that their
rejection places them beyond the consideration of the court, if they are thereafter found
relevant or competent; on the other hand, their admission, if they turn out later to be
irrelevant or incompetent, can easily be remedied by completely discarding them or ignoring
them.169 (Emphasis supplied, citations omitted)

A liberal application of the Rules is in line with the state's policy to recover ill-gotten wealth.
In case of doubt, courts should proceed with caution in granting a motion to dismiss based
on demurrer to evidence. An order granting demurrer to evidence is a judgment on the
merits.170 This is because while a demurrer "is an aid or instrument for the expeditious
termination of an action,"171 it specifically "pertains to the merits of the
case."172chanroblesvirtuallawlibrary

In Cabreza, Jr., et al. v. Cabreza,173 this court defined a judgment rendered on the merits:

A judgment may be considered as one rendered on the merits "when it determines the
rights and liabilities of the parties based on the disclosed facts, irrespective of formal,
technical or dilatory objections"; or when the judgment is rendered "after a determination of
which party is right, as distinguished from a judgment rendered upon some preliminary or
formal or merely technical point."174 (Citations omitted)

To reiterate, "[d]emurrer to evidence authorizes a judgment on the merits of the case

without the defendant having to submit evidence on his [or her] part, as he [or she] would
ordinarily have to do, if plaintiff's evidence shows that he [or she] is not entitled to the relief
sought."175 The order of dismissal must be clearly supported by facts and law since an
order granting demurrer is a judgment on the merits:

As it is settled that an order dismissing a case for insufficient evidence is a judgment on the
merits, it is imperative that it be a reasoned decision clearly and distinctly stating therein
the facts and the law on which it is based.176 (Citation omitted)
To erroneously grant a dismissal simply based on the delay to formally offer documentary
evidence essentially deprives one party of due process.chanRoblesvirtualLawlibrary

IV

Respondents did not fail to specifically deny material averments in the Complaint.

Under Rule 8, Section 10 of the Rules of Court, the "defendant must specify each material
allegation of fact the truth of which he does not admit and, whenever practicable, shall set
forth the substance of the matters upon which he relies to support his denial."177 There are
three modes of specific denial provided for under the Rules:

1) by specifying each material allegation of the fact in the complaint, the truth of which the
defendant does not admit, and whenever practicable, setting forth the substance of the
matters which he will rely upon to support his denial; (2) by specifying so much of an
averment in the complaint as is true and material and denying only the remainder; (3) by
stating that the defendant is without knowledge or information sufficient to form a belief as
to the truth of a material averment in the complaint, which has the effect of a
denial.178chanrobleslaw

In paragraph 14 of the Complaint, the PCGG, through the Office of the Solicitor General,
averred that:

14. Defendant Fe Roa Gimenez, by herself and/or in unlawful concert with Defendants
Ferdinand E. Marcos and Imelda R. Marcos, taking undue advantage of her position,
influence and connection and with grave abuse of power and authority, in order to prevent
disclosure and recovery of assets illegally obtained:ChanRoblesVirtualawlibrary
(a) actively participated in the unlawful transfer of millions of dollars of government funds
into several accounts in her name in foreign countries;

(b) disbursed such funds from her various personal accounts for Defendants' own use[,]
benefit and enrichment;

(c) acted as conduit of the Defendants Ferdinand E. Marcos and Imelda R. Marcos in
purchasing the New York properties, particularly, the Crown Building, Herald Center, 40
Wall Street, 200 Wall Street, Lindenmere Estate and expensive works of arts;179

In their Answer, respondents claimed that;

9. Defendants Spouses Gimenez and Fe Roa specifically deny the allegations contained in
paragraphs 14(a), 14(b) and 14(c), the truth being that defendant Fe Roa never took
advantage of her position or alleged connection and influence to allegedly prevent
disclosure and recovery of alleged illegally obtained assets, in the manner alleged in said
paragraphs.180chanroblesvirtuallawlibrary

Similarly, the PCGG made material allegations in paragraph 16 of the Complaint:

16. Defendant Ignacio B. Gimenez, taking undue advantage of his relationship, influence,
and connection, by himself and/or in unlawful concert and active collaboration with
Defendants Ferdinand E. Marcos and Imelda R. Marcos, for the purpose of mutually
enriching themselves and preventing the disclosure and recovery of assets illegally
obtained, among others:ChanRoblesVirtualawlibrary
(a) acted as the dummy, nominee or agent of Defendants Ferdinand E. Marcos and Imelda
R. Marcos, in several corporations such as, the Allied Banking Corporation, Acoje Mining
Corporation, Baguio Gold Mining, Multi National Resources, Philippine Overseas, Inc. and
Pioneer Natural Resources;

(b) unlawfully obtained, through corporations organized by them such as the the [sic] New
City Builders, Inc. (NCBI), multimillion peso contracts with the government for the
construction of government buildings, such as the University of Life Sports Complex and
Dining Hall as well as projects of the National Manpower Corporation, Human Settlements,
GSIS, and Maharlika Livelihood, to the gross and manifest disadvantage to Plaintiff and the
Filipino people.

(c) in furtherance of the above stated illegal purposes, organized several establishments
engaged in food, mining and other businesses such as the Transnational Construction
Corporation, Total Systems Technology, Inc., Pyro Control Technology Corporation, Asian
Alliance, Inc., A & T Development Corporation, RBO Agro Forestry Farm Development
Corporation, Bathala Coal Mining Corporation, Coal Basis Mining Corporation, Titan Coal
Mining Corporation, GEI Guaranteed Education, Inc., and I.B. Gimenez Securities, Inc.181

To which respondents specifically denied through the following paragraph:

11. Defendants Spouses Gimenez and Fe Roa specifically deny the allegations contained in
paragraphs 16, 16(a), 16(b) and 16(c) that defendant Gimenez allegedly took advantage of
his alleged relationship, influence and connection, and that by himself or in alleged
unlawful concert with defendants Marcos and Imelda, for the alleged purpose of enriching
themselves and preventing the discovery of alleged illegally obtained assets: (1) allegedly
acted as dummy, nominee or agent of defendants Marcos and Imelda; (2) allegedly obtained
multi-million peso projects unlawfully; and (3) allegedly organized several establishments,
the truth being: (1) that defendant Gimenez never acted as dummy, nominee or agent of
defendants Marcos and Imelda; (2) that defendant Gimen[e]z never once obtained any
contract unlawfully; and (3) that defendant Gimenez is a legitimate businessman and
organized business establishments legally and as he saw fit, all in accordance with his own
plans and for his own purposes.182chanrobleslaw

In Aquintey v. Spouses Tibong,183 this court held that using "specifically" in a general denial
does not automatically convert that general denial to a specific one.184 The denial in the
answer must be so definite as to what is admitted and what is denied:

A denial is not made specific simply because it is so qualified by the defendant. A general
denial does not become specific by the use of the word "specifically." When matters of
whether the defendant alleges having no knowledge or information sufficient to form a
belief are plainly and necessarily within the defendant's knowledge, an alleged "ignorance
or lack of information" will not be considered as a specific denial. Section 11, Rule 8 of the
Rules also provides that material averments in the complaint other than those as to the
amount of unliquidated damages shall be deemed admitted when not specifically denied.
Thus, the answer should be so definite and certain in its allegations that the pleader s
adversary should not be left in doubt as to what is admitted, what is denied, and what is
covered by denials of knowledge as sufficient to form a belief.185 (Emphasis supplied,
citations omitted)

However, the allegations in the pleadings "must be contextualized and interpreted in

relation to the rest of the statements in the pleading."186 The denials in respondents'
Answer comply with the modes provided for under the Rules. We have held that the
purpose of requiring specific denials from the defendant is to make the defendant disclose
the "matters alleged in the complaint which he [or she] succinctly intends to disprove at the
trial, together with the matter which 'he [or she] relied upon to support the denial."187The
denials proffered by respondents sufficiently disclosed the matters they wished to disprove
and those they would rely upon in making their denials.

To summarize, the Sandiganbayan erred in granting the Motion to Dismiss on demurrer to

evidence. It erred in making a sweeping declaration on the probative value of the
documentary evidence offered by petitioner and in excluding other evidence offered during
trial without full evaluation based on reasons grounded in law and/or
jurisprudence.chanRoblesvirtualLawlibrary

The third part of Rule 33, Section 1 of the Rules of Court provides that "[i]f the motion [to
dismiss] is granted but on appeal the order of dismissal is reversed [the movant] shall be
deemed to have waived the right to present evidence." As this court held:

[I]f a demurrer to evidence is granted but on appeal the order of dismissal is reversed, the
movant shall be deemed to have waived the right to present evidence. The movant who
presents a demurrer to the plaintiff's evidence retains the right to present their own
evidence, if the trial court disagrees with them; if the trial court agrees with them, but on
appeal, the appellate court disagrees with both of them and reverses the dismissal order,
the defendants lose the right to present their own evidence. The appellate court shall, in
addition, resolve the case and render judgment on the merits, inasmuch as a demurrer
aims to discourage prolonged litigations.188 (Citations omitted)

This procedure, however, does not apply.

In this case, we principally nullify the assailed Resolutions that denied the admission of the
Formal Offer of Evidence. It only follows that the Order granting demurrer should be
denied. This is not the situation contemplated in Rule 33, Section 1.189 Respondents were
not able to even comment on the Formal Offer of Evidence. Due process now requires that
we remand the case to the Sandiganbayan. Respondents may, at their option and through
proper motion, submit their Comment. The Sandiganbayan should then rule on the
admissibility of the documentary and object evidence covered by the Formal Offer
submitted by petitioner. Respondents then may avail themselves of any remedy thereafter
allowed by the Rules.

WHEREFORE, the Petition is GRANTED. The assailed Resolutions dated May 25, 2006 and
September 13, 2006 of the Sandiganbayan Fourth Division in Civil Case No. 0007
are REVERSED and SET ASIDE. The case is remanded to the Sandiganbayan for further
proceedings with due and deliberate dispatch in accordance with this Decision.

SO ORDERED.cralawlawlibrary

Carpio, (Chairperson), Bersamin,* Del Castillo, and Mendoza, JJ., concur.

UNAUTHENTICATED PRIVATE DOCUMENT IS INADMISSIBLE IN EVIDENCE.

G.R. No. 181683, October 07, 2015

LORENZO SHIPPING CORPORATION, Petitioner, v. NATIONAL POWER

CORPORATION,Respondent.

G.R. No. 184568

NATIONAL POWER CORPORATION, Petitioner, v. LORENZO SHIPPING

CORPORATION, Respondent.

DECISION

LEONEN, J.:

These consolidated Petitions for Review on Certiorari1 are offshoots of the Court of Appeals'
disposition of CA-G.R. CV No. 76295. The Petition docketed as G.R. No. 181683 was filed
by Lorenzo Shipping Corporation (Lorenzo Shipping) while the Petition docketed as G.R. No.
184568 was filed by National Power Corporation.

In its September 14, 2007 Decision,2 the Court of Appeals reversed and set aside the
February 18, 2002 Decision of the Regional Trial Court and entered another judgment
ordering Lorenzo Shipping to pay National Power Corporation the amount of P876,286.00
as actual damages and P50,000.00 as attorney's fees and expenses of litigation.3

In its February 12, 2008 Amended Decision,4 the Court of Appeals amended its September
14, 2007 Decision to award National Power Corporation the amount of P300,000.00 as
temperate damages in lieu of the original award of P876,286.00 as actual damages.

In its September 17, 2008 Resolution,5 the Court of Appeals denied National Power
Corporation's Motion for Reconsideration.

The February 18, 2002 Decision6 of the Regional Trial Court dismissed National Power
Corporation's Complaint for damages against Lorenzo Shipping.7

Lorenzo Shipping is the owner and operator of the commercial vessel MV Lorcon
Luzon.8 National Power Corporation is the owner of Power Barge 104, "a non-propelled
power plant barge."9

On March 20, 1993, Power Barge 104 was berthed and stationed at the Makar Wharf in
General Santos City when the MV Lorcon Luzon "hit and rammed Power Barge 104."10

At the time of the incident, Captain Mariano Villarias (Captain Villarias) served as the
Master of the MV Lorcon Luzon. However, the MV Lorcon Luzon was then being piloted by
Captain Homer Yape (Captain Yape), a Harbor Pilot from the General Santos City pilotage
district.11 As underscored by Lorenzo Shipping, the MV Lorcon Luzon was under Captain
Yape's pilotage as it was mandatory to yield navigational control to the Harbor Pilot while
docking.12

Testifying before the Board of Marine Inquiry, Captain Villarias recalled that while the MV
Lorcon Luzon was under Captain Yape's pilotage, he nevertheless "always"13 remained at
the side of Captain Yape. He likewise affirmed that he heard and knew of Captain Yape's
orders, "because I have to repeat his order."14

As the MV Lorcon Luzon was docking, Captain Yape ordered the vessel to proceed "slow
ahead," making it move at the speed of about one (1) knot. As it moved closer to dock,
Captain Yape gave the order "dead slow ahead," making the vessel move even slower. He
then ordered the engine stopped.15

As the MV Lorcon Luzon moved "precariously close"16 to the wharf, Captain Yape ordered
the vessel to move backward, i.e., go "slow astern," and subsequently "full astern." Despite
his orders, the engine failed to timely respond. Thus, Captain Yape ordered the dropping of
the anchor. Despite this, the MV Lorcon Luzon rammed into Power Barge 104.17

Following this incident, Nelson Homena, Plant Manager of Power Barge 104, filed a Marine
Protest before the Board of Marine Inquiry. Captain Villarias also filed his own Marine
Protest. For his part, Captain Yape filed a Marine Accident Report. The Board of Marine
Inquiry conducted joint hearings on the Marine Protests and Captain Yape's report.18

To forestall the prescription of its cause of action for damages, National Power Corporation
filed before the Quezon City Regional Trial Court a Complaint for Damages against Lorenzo
Shipping.19 In this Complaint, National Power Corporation recalled the damage resulting
from the ramming, as follows:chanRoblesvirtualLawlibrary

4. Due to the force and impact of the ramming, the three (3) nylon ropes of 4 inches [sic]
diameter each securing the barge at the Makar Wharf-Philippines [sic] Ports Authority Pier
was instantaneously ripped off and the take [-] off tower of the barge swayed causing flash
over on the 69 KV line tripping the line and isolated General Santos City from the
Mindanao Grid. Consequently, the General Santos Power Plant, Power Barge 102,
interconnected with Power Barge 104, all tripped off causing total blackout in General
Santos City and its underlying areas;

5. Immediate investigation revealed that the ramming resulted to severe damage to Ballast
Tank No. 1 and metal deformation with approximate area of two (2) sq. meters. The crack,
25 mm. [b]y 460 mm. [ojccurred two (2) meters above the crater line and another one, 75
mm. by 310 mm. on the water line caused a leak of waste oil into the sea . . .;

6. In addition to the physical damage caused to the Power Barge 104, plaintiff suffered
generation losses as a result of the tripping off of the line and the failure of Power Barge
104 to generate electricity immediately after the accident[.]20

Lorenzo Shipping filed a Motion to Dismiss grounded on the Regional Trial Court's alleged
lack of jurisdiction over the subject matter and National Power Corporation's failure to
exhaust administrative remedies. Lorenzo Shipping underscored that the dispute was
supposedly within the jurisdiction of the Board of Marine Inquiry/Philippine Coast
Guard.21 The Regional Trial Court denied Lorenzo Shipping's Motion to Dismiss.22

On November 7, 1997, Lorenzo Shipping filed its Answer. It emphasized that at the time of
the incident, the MV Lorcon Luzon was commandeered by an official Harbor Pilot to whom
it was "mandatory . . . to yield operational control";23 thus, any liability should be
attributed to the Harbor Pilot and not to the company. It added that "Makar Wharf is a
berthing place only for self-propelled vessel [sic]."24 As Power Barge 104 was not a self-
propelled vessel, it "had no right to lash itself on the Maka[r] Wharf. . . . [and] it assumed
the risk of such ramming because [of] its improper presence[.]"25 Lastly, Lorenzo Shipping
pointed out that National Power Corporation's action was barred by laches as four (4) years
had lapsed before it filed its Complaint.26
The Regional Trial Court issued the Decision27 dated February 18, 2002 absolving Lorenzo
Shipping of liability. It concluded that National Power Corporation failed to establish
Lorenzo Shipping's negligence. It underscored that while the ramming was found to have
been the result of the engine's stoppage, no malfunctioning was recorded before and after
the incident. The Regional Trial Court further stated that Lorenzo Shipping was sued in its
capacity as the employer of Captain Villarias and that any liability it incurred would have
been only subsidiary. Nevertheless, as Lorenzo Shipping supposedly exercised due diligence
in its selection and supervision of Captain Villarias, no liability could be attributed to it.28

National Power Corporation appealed before the Court of Appeals.

The Court of Appeals rendered the Decision29 dated September 14, 2007 reversing and
setting aside the February 18, 2002 Decision of the Regional Trial Court and entering
another judgment ordering Lorenzo Shipping to pay National Power Corporation the
amount of P876,286.00 as actual damages and P50,000.00 as attorney's fees and expenses
of litigation.30

The Court of Appeals reasoned that while the MV Lorcon Luzon was under compulsory
pilotage, Captain Villarias, the vessel's Master, remained to be its overall commander. It
added that he was remiss in his duties as he did nothing in the crucial moments when
Captain Yape's orders to go astern appeared to not have been heeded.31 It cited Article 2180
of the Civil Code32 in that an employer's liability is primary and not subsidiary. It further
noted that Lorenzo Shipping failed to show that it exercised due diligence in the selection
and supervision of Captain Villarias.33

Lorenzo Shipping filed a Motion for Reconsideration.

The Court of Appeals then issued the Amended Decision dated February 12, 2008.34 Noting
that the amount of actual damages was not proven by National Power Corporation, it
awarded National Power Corporation the amount of P300,000.00 as temperate damages in
lieu of actual damages. The awards for attorney's fees and litigation expenses were
sustained.

National Power Corporation then filed a Motion for Reconsideration, which the Court of
Appeals denied in its Resolution dated September 17, 2008.35

On March 31, 2008, Lorenzo Shipping filed the Petition for Review on Certiorari36 docketed
as G.R. No. 181683. It reiterated its position that no liability could be attributed to it as the
MV Lorcon Luzon was under compulsory pilotage and that National Power Corporation
assumed risk when it berthed a non-propelled vessel in the Makar Wharf.37 It added that
even assuming that it was at fault, the award of P3 00,000.00 as temperate damages was
still improper. It claimed that, from the text of Article 2224 of the Civil Code,38 temperate
damages can be awarded only in cases where pecuniary loss may have been incurred, but
whose exact amount, through the nature of the injury suffered, e.g., injury to commercial
credit or business goodwill, cannot be ascertained. It argued that National Power
Corporation was well in a position to adduce proof of the exact amount of damage it
incurred, but failed to do so.39

On November 24, 2008, National Power Corporation filed its Comment40 to Lorenzo
Shipping's Petition. It maintained that it was Lorenzo Shipping that must be held liable and
that it was able to show by "competent testimonial and documentary evidence"41 that it
must be compensated for actual damages in the amount of P876,826.00. On April 7, 2009,
Lorenzo Shipping filed its Reply.42

In the meantime, on November 18, 2008, National Power Corporation filed its own Petition
for Review on Certiorari43 docketed as G.R. No. 184568, arguing how it had supposedly
proven by competent evidence that it was entitled to actual damages in the amount of
F876,826.00. Lorenzo Shipping filed its Comment44 on February 2, 2009. National Power
Corporation filed its Reply45 on June 22, 2009.

In the Resolution46 dated February 9, 2009, this court consolidated the Petitions docketed
as G.R. Nos. 181683 and 184568.

For resolution are the following issues:chanRoblesvirtualLawlibrary

First, whether Lorenzo Shipping Corporation is liable for the damage sustained by Power
Barge 104 when the MV Lorcon Luzon rammed into it, considering that at the time of the
ramming, the MV Lorcon Luzon was under mandatory pilotage by Captain Yape; and

Second, assuming that liability is to be attributed to Lorenzo Shipping, what damages, if

any, may be awarded to National Power Corporation.

It is not disputed that the MV Lorcon Luzon, a vessel owned and operated by Lorenzo
Shipping, rammed into Power Barge 104 while attempting to dock at the Makar Wharf.
Likewise, it is not disputed that when it rammed into Power Barge No. 104, the MV Lorcon
Luzon was being piloted by Captain Yape. What is in dispute is whether Captain Yape's
pilotage suffices to absolve Lorenzo Shipping of liability.

A Master's designation as the commander of a vessel is long-settled. This court's citation

in Yu Con v. Ipil47 of General Review of Legislation and Jurisprudence explains that
"Master" and "Captain" are synonymous terms:
"The name of captain or master is given, according to the kind of vessel, to the person in
charge of it.

"The first denomination is applied to those who govern vessels that navigate the high seas
or ships of large dimensions and importance, although they be engaged in the coastwise
trade.

"Masters are those who command smaller ships engaged exclusively in the coastwise trade.

"For the purposes of maritime commerce, the words 'captain' and Q 'master' have the same
meaning; both being the chiefs or commanders of ships.48ChanRoblesVirtualawlibrary
Likewise, in Inter-Orient Maritime Enterprises, Inc. v. National Labor Relations Commission:49
A master or captain, for purposes of maritime commerce, is one who has command of a
vessel. A captain commonly performs three (3) distinct roles: (1) he is a general agent of the
shipowner; (2) he is also commander and technical director of the vessel; and (3) he is a
representative of the country under whose flag he navigates. Of these roles, by far the most
important is the role performed by the captain as commander of the vessel; for such role
(which, to our mind, is analogous to that of "Chief Executive Officer" [CEO] of a present-day
corporate enterprise) has to do with the operation and preservation of the vessel during its
voyage and the protection of the passengers (if any) and crew and cargo. In his role as
general agent of the shipowner, the captain has authority to sign bills of lading, carry goods
aboard and deal with the freight earned, agree upon rates and decide whether to take
cargo. The ship captain, as agent of the shipowner, has legal authority to enter into
contracts with respect to the vessel and the trading of the vessel, subject to applicable
limitations established by statute, contract or instructions and regulations of the
shipowner. To the captain is committed the governance, care and management of the vessel.
Clearly, the captain is vested with both management and fiduciary functions.50(Emphasis
supplied, citations omitted)
This notwithstanding, there are recognized instances when control of a vessel is yielded to a
pilot. Section 8 of Philippine Ports Authority (PPA) Administrative Order No. 03-85,
otherwise known as the Rules and Regulations Governing Pilotage Services, the Conduct of
Pilots and Pilotage Fees in Philippine Ports,51 enumerates instances when vessels are
subjected to compulsory pilotage:
Sec. 8. Compulsory Pilotage Service — For entering a harbor and anchoring thereat, or
passing through rivers or straits within a pilotage district, as well as docking and
undocking at any pier/wharf, or shifting from one berth or another, every vessel engaged in
coastwise and foreign trade shall be under compulsory pilotage.

However, in the Ports of Manila and Cebu, and in such other ports as may be allowed by
this Authority, Ship Captains may pilot their vessels engaged in coastwise trade provided
they meet / comply with the following minimum qualifications / requirements:
a) Must be properly licensed as a Harbor Pilot by the Philippine Coast Guard for Manila,
Cebu and other authorized ports;

b) Must have been a Master of an interisland vessel for at least three (3) years prior to his
application with the PPA;
c) Must be certified by a government physician as physically and mentally fit.
Vessels maneuvered by a Special Harbor Pilot shall be exempt from the payment of all
pilotage fees.52ChanRoblesVirtualawlibrary
The second paragraph of Section 8 identifies an instance when control of a vessel need not
be yielded to a pilot. Section 9 further enumerates exceptions to compulsory pilotage:
Sec. 9. Exemptions - In the following cases, pilotage service is not compulsory:

a) Vessels engaged in coastwise trade undocking at all ports, except at the ports of
Manila, Cebu, Iloilo, Tacloban, Davao, Zamboanga, Pulupandan, Masinloc, and San
Fernando,

b) Government vessels,

c) Vessels of foreign governments entitled to courtesy,

d) Vessels that are authorized by BOT to engage in daily ferry service plying between
two places within a port or between two ports,

e) Phil. Flag vessels engaged in coastwise trade that depart from an anchorage,

f) Vessels calling at private ports whose owners have formally waived the
requirements of compulsory pilotage.53
Section 32(f) of PPA Administrative Order No. 03-85 specifies the foremost responsibility of
a Harbor Pilot, that is, the direction of the vessel being piloted. In addition, Section 32 (f)
spells out the duration within which the Harbor Pilot is to fulfill this responsibility. It
likewise provides that the Master's failure to carry out the Harbor Pilot's orders is a ground
for absolving the Harbor Pilot of liability:
Sec. 32. Duties and Responsibilities of the Pilots or Pilots' Association. — The duties and
responsibilities of the Harbor Pilot shall be as follows:chanRoblesvirtualLawlibrary

....

f) A pilot shall be held responsible for the direction of a vessel from the time he
assumes his work as a pilot thereof until he leaves it anchored or berthed safely;
Provided, however, that his responsibility shall cease at the moment the Master
neglects or refuses to carry out his order.54
Consistent with the yielding of control to a pilot, Section 11 of PPA Administrative Order
No. 03-85 makes the Harbor Pilot liable for damage caused by his or her negligence or
fault. The same provision, however, emphasizes that "overall command" of the vessel
remains in the Master of the vessel:
Sec. 11. Control of Vessels and Liability for Damage. — On compulsory pilotage grounds,
the Harbor Pilot providing the service to a vessel shall be responsible for the damage
caused to a vessel or to life and property at ports due to his negligence or fault. He can be
absolved from liability if the accident is caused by force majeure or natural calamities
provided he has exercised prudence and extra diligence to prevent or minimize the damage.

The Master shall retain overall command of the vessel even on pilotage grounds whereby he
can countermand or overrule the order or command of the Harbor Pilot on board. In such
event, any damage caused to a vessel or to life and property at ports by reason of the fault
or negligence of the Master shall be the responsibility and liability of the registered owner of
the vessel concerned without prejudice to recourse against said Master.

Such liability of the owner or Master of the vessel or its pilots shall be determined by
competent authority in appropriate proceedings in the light of the facts and circumstances
of each particular case.55ChanRoblesVirtualawlibrary
Accordingly, it is settled that Harbor Pilots are liable only to the extent that they can
perform their function through the officers and crew of the piloted vessel.56 Where there is
failure by the officers and crew to adhere to their orders, Harbor Pilots cannot be held
liable.57 In Far Eastern Shipping Co. V. Court of Appeals,58 this court explained the
intertwined responsibilities of pilots and masters:
[W]here a compulsory pilot is in charge of a ship, the master being required to permit him
to navigate it, if the master observes that the pilot is incompetent or physically incapable,
then it is the duty of the master to refuse to permit the pilot to act. But if no such reasons
are present, then the master is justified in relying upon the pilot, but not blindly. Under the
circumstances of this case, if a situation arose where the master, exercising that reasonable
vigilance which the master of a ship should exercise, observed, or should have observed,
that the pilot was so navigating the vessel that she was going, or was likely to go, into
danger, and there was in the exercise of reasonable care and vigilance an opportunity for
the master to intervene so as to save the ship from danger, the master should have acted
accordingly. The master of a vessel must exercise a degree of vigilance commensurate with
the circumstances.59 (Citations omitted)
Thus, contrary to Lorenzo Shipping's assertion, the MV Lorcon Luzon's having been piloted
by Captain Yape at the time of the ramming does not automatically absolve Lorenzo
Shipping of liability. Clearing it of liability requires a demonstration of how the Master,
Captain Villarias, conducted himself in those moments when it became apparent that the
MV Lorcon Luzon's engine had stopped and Captain Yape's orders to go "slow astern" and
"full astern" were not being heeded.

II

As noted by the Court of Appeals, Captain Villarias was remiss in his duties. In his
testimony before the Board of Marine Inquiry, Captain Villarias admitted that about six (6)
minutes had passed before he even realized that there was an engine failure, let alone acted
on this fact:
Significantly, Captain Mariano Villarias before the Board of Marine Inquiry testified as
follows:chanRoblesvirtualLawlibrary

"Atty. Now, during the time of that accident, Mr. Witness, how did you know that
Tapel: the cause of the ramming on Power Barge No. 104 was due to engine
failure?

Capt There was no response upon the order or the harbor pilot from slow to full
Villarias: eastern [sic] engine.

Atty. Tepal: Do you want to tell this Honorable Board that before the ramming incident
there was an order from the harbor pilot for slow eastern [sic] engine and
there was no response?

Capt Yes, there was an order.

Villarias:

Atty. Tepal: Where were you at that time, Mr. Witness?

Capt. I am always [at] the side of the harbor pilot.

Villarias:

Atty. Tepal: Have you heard the harbor pilot issuing the orders?
 Capt. Yes, because I have to repeat his order.
Villarias:

Atty. Tepel Now, when there was no response[,] who is supposed to respond to the
(sic): order of the harbor pilot?

Capt. It was the engine department.

Vilalrias:

Atty Tapel Who in the engine department is supposed to respond to the order of the
(sic): harbor pilot?

Capt. The second engineer and the chief engineer. The engineer on duty.
Villarias:

Atty. Tepal: And because there was no response from the engine department[,] you
concluded that there was an engine failure which caused the ramming of
Napocor Power Barge?

Capt. Almost six (6) minutes there is no response before I know that there was an
Villarias: engine failure."60
In the Reply it filed in G.R. No. 181683, Lorenzo Shipping attempts to douse the
significance of Captain Villarias' inaction for six (6) minutes as follows:
The Court of Appeals held that Capt. Villarias was remiss in his duties because he just
stood besides [sic] the harbour pilot waiting for a response from the engine department. He
could have called the attention of Capt. Yape on his miscalculations in the docking
maneuvers of the vessel.

But the Court of Appeals assumed that the unfolding circumstances on the water that
approached the wharf were in slow motion and permitted the vessel's captain to have time
to examine the situation and deliberate on it, make a judgment that the pilot had given a
wrong command, wrest from him control of the vessel, and enable the crew down in its
belly, at the time tuned to the voice of the pilot, to realize that the latter's authority had
been superseded and that the command had reverted to the captain. As it were, no
evidence was presented to show that the captain and the crew had all the time they needed
to arrest the momentum of the vessel to which the pilot had directed
it.61ChanRoblesVirtualawlibrary
We disagree.

In the first place, six (6) minutes cannot be characterized as so quick and fleeting that it
deprived Captain Villarias and his crew of "the time they needed to arrest the momentum of
the vessel."62 By way of reference, an entire song of average length (or longer) could have
played in Captain Villarias' head within those six (6) minutes. The vessel had been
performing the tedious task of berthing and had been moving so fast that it was about to
collide with the docks in the wharf. Given these circumstances, it was only reasonable for
Captain Villarias, precisely because he was the vessel's Master, to remain vigilant, to
support and supplement Captain Yape's orders, and to take evasive and counter measures
should Captain Yape's attempts to safely berth prove to be ineffectual. The Court of
Appeals' observation is well-taken: "Even just a minute without any response from the
concerned department could have alarmed him."63

Lorenzo Shipping counters the observations of the Court of Appeals by attempting to paint
a picture of absurdity. It describes the confluence of events as needing to have been in
"slow motion" if the crew were to timely and properly react. It conjures images of Captain
Villarias "wrest[ing] from [Captain Yape] control of the vessel"64 and the crew thrown into a
confused frenzy as they had to listen to Captain Villarias' voice.

This manner of arguing fails to impress. To reiterate, six (6) minutes were more than
enough time for Captain Villarias to have done something to remedy the situation. It is not
for us to hypothesize on whether the measures he took would have been effectual. It
remains that for six minutes, he did nothing. As Master of the MV Lorcon Luzon, he should
have been on his toes, keen and ready to make decisions in a split second, especially in an
evidently precarious situation. His failure to timely act is too glaring to ignore.

Moreover, both Captain Villarias and Captain Yape must be presumed to have been
disciplined officers who knew fully well how to conduct themselves in such a situation.
There is no basis for contemplating a scenario where the Pilot and the Master are battling
for control of the MV Lorcon Luzon.

So, too, the crew must be presumed to have been trained to follow the Master's commands.
It is ridiculous to think that merely hearing Captain Villarias' voice in lieu of Captain Yape's
would throw the crew into paralyzed confusion. Besides, from Captain Villarias' quoted
testimony, the crew was already listening to both his and Captain Yape's voices. He
admitted that he repeated Captain Yape's orders. The crew was, thus, properly disposed to
heed instructions coming from him. If at all, his failure to timely act despite the crew's
presumptive readiness to heed his command only highlights his negligence.

III

Equally futile is Lorenzo Shipping's claim that National Power Corporation must bear its
own losses as it assumed the risk of injury when it moored a non-propelled or stationary
barge in the Makar Wharf.

It is pointless to even consider this. Apart from Lorenzo Shipping's own self-serving
assertions, there is no basis for holding that Power Barge 104's presence in the Makar
Wharf was improper and tantamount to an assumption of risk. Lorenzo Shipping could
have very easily adduced proof attesting to Makar Wharf's supposedly being exclusive to
self-propelled vessels. It did not. Nowhere in any of its submissions to this court did
Lorenzo Shipping annex a copy of the appropriate regulation, if any, that restricts the use
of Makar Wharf to self-propelled vessels or absolutely prohibits National Power Corporation
from using it as a berthing place for a power barge.

If at all, the MV Lorcon Luzon's ramming of a stationary object is even more damaging to
Lorenzo Shipping's cause. As explained in Far Eastern Shipping:65
We start our discussion of the successive issues bearing in mind the evidentiary rule in
American jurisprudence that there is a presumption of fault against a moving vessel that
strikes a stationary object such as a dock or navigational aid. In admiralty, this
presumption does more than merely require the ship to go forward and produce some
evidence on the presumptive matter. The moving vessel must show that it was without fault
or that the collision was occasioned by the fault of the stationary object or was the result of
inevitable accident. It has been held that such vessel must exhaust every reasonable
possibility which the circumstances admit and show that in each, they did all that
reasonable care required. In the absence of sufficient proof in rebuttal, the presumption of
fault attaches to a moving vessel which collides with a fixed object and makes a prima facie
case of fault against the vessel. Logic and experience support this presumption:
The common sense behind the rule makes the burden a heavy one. Such accidents simply
do not occur in the ordinary course of things unless the vessel has been mismanaged in
some way. It is not sufficient for the respondent to produce witnesses who testify that as
soon as the danger became apparent everything possible was done to avoid an accident.
The question remains, How then did the collision occur? The answer must be either that, in
spite of the testimony of the witnesses, what was done was too little or too late or, if not,
then the vessel was at fault for being in a position in which an unavoidable collision would
occur.66 (Emphasis supplied, citations omitted)
IV

We sustain the Court of Appeals' award to National Power Corporation of P300,000.00 as

temperate damages.
Article 2199 of the Civil Code spells out the basic requirement that compensation by way of
actual damages is awarded only to the extent that pecuniary loss is proven:
Article 2199. Except as provided by law or by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.
The standard for proving pecuniary loss was explained in PNOC Shipping and Transport
Corp. v. Court of Appeals,67 as follows:
A party is entitled to adequate compensation only for such pecuniary loss actually suffered
and duly proved. Indeed, basic is the rule that to recover actual damages, the amount of
loss must not only be capable of proof but must actually be proven with a reasonable
degree of certainty, premised upon competent proof or best evidence obtainable of the
actual amount thereof. The claimant is duty-bound to point out specific facts that afford a
basis for measuring whatever compensatory damages are borne. A court cannot merely rely
on speculations, conjectures, or guesswork as to the fact and amount of damages as well as
hearsay or uncorroborated testimony whose truth is suspect.68 (Citations omitted)
National Power Corporation bewails the Court of Appeals' observation that the basis of its
claims was "not properly receipted."69 It counters that it was able to show by "competent
testimonial and documentary evidence"70 that it must be compensated for actual damages
in the amount of P876,826.00. It recalls these pieces of evidence:

a. Testimony of Mr. Nelson Homena, manager of Power Barge 104 [who] testified
on the damages [sic] sustained by said barge as a result of the ramming
incident caused by the negligence of M/V Lorcon Luzon.

b. The "Total Incidental Cost for Drydock and Repair" prepared by the Philippine
Shipyard and Engineering Corporation ("PHILSECO") dated 14 October 1993
was presented which clearly enumerated and itemized the actual damages [sic]
sustained by Power Barge 104 and repaired by PHILSECO.

c. NPC Disbursement Voucher No. 093-121304 in the amount of P6,775,839.02

covering a period up to 14 January 1994 as proof of payment made by
[National Power Corporation] to PHILSECO for drydocking repairs of Power
Barge 104.71

However, Lorenzo Shipping pointed out fatal flaws in these pieces of evidence. These flaws
led the Court of Appeals to reconsider its earlier award of actual damages to National Power
Corporation.

Regarding the "Total Incidental Cost for Drydock and Repair," which was National Power
Corporation's Exhibit "F" before the Regional Trial Court, Lorenzo Shipping underscored
that when the Regional Trial Court ruled on National Power Corporation's Formal Offer of
Evidence, it denied the admission of Exhibit "F" for not having been identified nor
authenticated. It emphasized that no witness came forward to attest to its authenticity and
due execution, let alone allowed himself or herself to be cross-examined on these points.72

Regarding Nelson Homena's testimony, Lorenzo Shipping emphasized that all he indicated
was how he and a certain Mr. Neri estimated the cost of damage to be at about
P1,000,000.00.73

Regarding Disbursement Voucher No. 093-121304, Lorenzo Shipping pointed out that
while this attests to expenses paid to PHILSECO, it was silent on the exact cost paid for the
repair of Power Barge 104.74

Nowhere in any of its submissions to this court—whether in its Comment in G.R. No.
181683 or in its Petition and/or Reply in G.R. No. 184568—did National Power Corporation
rebut the flaws noted by Lorenzo Shipping. Instead, it merely insisted on how actual
damages are awarded on the basis of the "best obtainable evidence,"75 and how it has
supposedly presented "competent testimonial and documentary evidence"76 to prove its
claims.

National Power Corporation's posturing fails to impress.

It is basic that any material presented as evidence will not be considered unless duly
admitted by the court before which it is presented. Just as basic is that a private document
offered as authentic evidence shall not be admitted unless its due execution and
authenticity are established in the manner specified by Rule 132, Section 30 of the Revised
Rules on Evidence:
Section 20. Proof of private document. - Before any private document offered as authentic is
received in evidence, its due execution and authenticity must be proved
either:chanRoblesvirtualLawlibrary

(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.
A bill of expenses, such as National Power Corporation's Exhibit "F", is considered a private
document as it does not fall under what the Revised Rules on Evidence defines to be public
documents.77 Accordingly, for it to have been admitted by the Regional Trial Court as
authentic, Rule 132, Section 30 of the Revised Rules on Evidence must have been complied
with. National Power Corporation failed in this respect. Thus, in the words of the Regional
Trial Court, it:
3. Denies the admission of Exhibit "F" and its submarkings for not having been properly
identified.78ChanRoblesVirtualawlibrary
It is of no consequence that the substance or contents of Exhibit "F" are such that they
specify an amount. It is of no consequence that it is purportedly of such evidentiary weight
that it could definitely establish National Power Corporation's claims.

Admissibility of evidence and weight accorded to evidence are two distinct affairs. Rule 128,
Section 3 of the Revised Rules on Evidence governs admissibility and provides that
"[e]vidence is admissible when it is relevant to the issue and is not excluded by the law of
these rules." When evidence has "such a relation to the fact in issue as to induce belief in
its existence or non-existence,"79 it is said to be relevant. When evidence is not excluded by
law or by the Rules, it is said to be competent.

The weight accorded to evidence is properly considered only after evidence has been
admitted. To this end, courts evaluate evidence in accordance with the rules stipulated by
Rule 133 of the Revised Rules on Evidence,80 consistent with basic precepts of rationality
and guided by judicially established standards. It is improper to even speak of evidentiary
weight when the piece of evidence in question has not even been admitted.

Exhibit "F" was ruled to have been inadmissible for failing to comply with Rule 132, Section
20 thus, it failed the standard of competency. Consistent with this, reliance on National
Power Corporation's Exhibit "F" and its contents, so as to establish the extent of National
Power Corporation's pecuniary loss, is misplaced. Not having been admitted, Exhibit "F"
does not form part of the body of evidence worthy of judicial consideration.

As National Power Corporation cannot rely on the "Total Incidental Cost for Drydock and
Repair," it is left to rely on the testimony of Nelson Hpmena and on NPC Disbursement
Voucher No. 093-121304.

However, as pointed out by Lorenzo Shipping, these pieces of evidence fall short of the
standard required for proving pecuniary loss, which shall be the basis for awarding actual
damages. As regards Nelson Homena's testimony, all he did was give an estimate of
P1,000,000.00. Certainly, a mere estimate does not suffice as proof of actual pecuniary
loss. As regards NPC Disbursement Voucher No. 093-121304, all it attests to is a release of
funds in favor of PHILSECO in the total amount of P6,775,839.02, covering no specific
transaction but a period extending from January 14, 1994.

Clearly, National Power Corporation failed to establish the precise amount of pecuniary loss
it suffered. Nevertheless, it remains that Power Barge 104 sustained damage—which may
be reckoned financially—as a result of the MV Lorcon Luzon's ramming into it. National
Power Corporation suffered pecuniary loss, albeit its precise extent or amount had not been
established. Accordingly, we sustain the Court of Appeals' conclusion that National Power
Corporation is entitled to temperate damages.

Articles 2224 and 2225 of the Civil Code govern temperate damages:
Article 2224. Temperate or moderate damages, which are more than nominal but less than
compensatory damages, may be recovered when the court finds that some pecuniary loss
has been suffered but its amount can not, from the nature of the case, be provided with
certainty.

Article 2225. Temperate damages must be reasonable under the circumstances.

Banking on Article 2224's text, which references "the nature of the case," Lorenzo Shipping
asserts that temperate damages can be awarded only in cases where pecuniary loss may
have been incurred, but whose exact amount, through the nature of the injury suffered,
e.g., injury to commercial credit or business goodwill, cannot be ascertained. It argues that
because the circumstances of this case are such that National Power Corporation could
have pleaded and proved a specific—i.e., ascertained—amount of pecuniary loss but failed
to do so, temperate damages should not be awarded.

Lorenzo Shipping is proposing an erroneous, narrow, and unduly restrictive construction of

Article 2224.

This case is not the first instance that this court was confronted with the ostensibly limiting
language of Article 2224. In Republic of the Philippines v. Tuvera,81 this court already
debunked the notion that temperate damages are appropriate only in those cases in which
pecuniary loss cannot, "by its nature," be ascertained:
Temperate or moderate damages avail when "the court finds that some pecuniary loss has
been suffered but its amount can not from the nature of the case, be proved with
certainty." The textual language might betray an intent that temperate damages do not avail
when the case, by its nature, is susceptible to proof of pecuniary loss; and certainly the
Republic could have proved pecuniary loss herein. Still, jurisprudence applying Article 2224 is
clear that temperate damages may be awarded even in instances where pecuniary loss could
theoretically have been proved with certainty.

In a host of criminal cases, the Court has awarded temperate damages to the heirs of the
victim in cases where the amount of actual damages was not proven due to the inadequacy
of the evidence presented by the prosecution. These cases include People v. Oliano, People v.
Suplito, People v. De la Tongga, People v. Briones, and People v. Plazo. In Viron
Transportation Co., Inc. v. Delos Santos, a civil action for damages involving a vehicular
collision, temperate damages were awarded for the resulting damage sustained by a cargo
truck, after the plaintiff had failed to submit competent proof of actual
damages.82 (Citations omitted)
In resolving this case, we have had to sift through the parties' competing claims as to who
exactly is liable and to what extent. Reduced to its fundamentals, however, this case
remains to be about damage sustained by property owned by National Power Corporation
when the MV Lorcon Luzon rammed into it. This damage is susceptible to financial
reckoning. Unfortunately for National Power Corporation, it failed to establish the precise
amount of its pecuniary loss. This vice of precision notwithstanding, it would be improper
to completely turn a blind eye to the loss suffered by National Power Corporation and to
deny it, as Lorenzo Shipping suggests, of any form of recompense. Under these
circumstances, we sustain the Court of Appeals' award of temperate damages.

WHEREFORE, the consolidated Petitions are DENIED. The Amended Decision dated
February 12, 2008 and Resolution dated September 17, 2008 of the Court of Appeals in
CA-G.R. CV No. 76295 are AFFIRMED.

All monetary awards for damages shall earn interest at the legal rate of 6% per annum from
the date of the finality of this judgment until fully paid.

SO ORDERED.chanroblesvirtuallawlibrary

JUDICIAL AFFIDAVIT RULE/ ADVERSE PARTY OR HOSTILE WITNESS;

THIRD DIVISION

G.R. No. 214054, August 05, 2015

NG MENG TAM, Petitioner, v. CHINA BANKING CORPORATION, Respondent.

DECISION
 VILLARAMA, JR., J.:

Before this Court is a direct recourse from the Regional Trial Court (RTC) via petition1 for
review on the question of whether Section 52 of the Judicial Affidavit Rule (JAR) applies to
hostile or adverse witnesses. The petition seeks to annul and set aside the May 28,
20143 and August 27, 20144 Orders of the RTC, Branch 139, Makati City in Civil Case No.
08-1028.

This case stemmed from a collection suit filed by China Banking Corporation (China Bank)
against Ever Electrical Manufacturing Company Inc. (Ever), the heirs of Go Tong, Vicente
Go, George Go and petitioner Ng Meng Tam sometime in December 2008. China Bank
alleged that it granted Ever a loan amounting to P5,532,331.63. The loan was allegedly
backed by two surety agreements executed by Vicente, George and petitioner in its favor,
each for P5,000,000.00, and dated December 9, 1993 and May 3, 1995, respectively. When
Ever defaulted in its payment, China Bank sent demand letters collectively addressed to
George, Vicente and petitioner. The demands were unanswered. China Bank filed the
complaint for collection docketed as Civil Case No. 08-1028, which was raffled off to RTC
Branch 62, Makati City.

In his Answer, petitioner alleged that the surety agreements were null and void since these
were executed before the loan was granted in 2004. Petitioner posited that the surety
agreements were contracts of adhesion to be construed against the entity which drafted the
same. Petitioner also alleged that he did not receive any demand letter.

In the course of the proceedings, petitioner moved that his affirmative defenses be heard by
the RTC on the ground that the suit is barred by the statute of limitations and laches.5 The
motion was denied by the court.6 On appeal, the Court of Appeals (CA) in its December 22,
2010 Decision7 ruled that a preliminary hearing was proper pursuant to Section 6,8 Rule
16 of the Rules of Court due to the grounds cited by petitioner. There being no appeal, the
decision became final and executory on August 28, 2011.9redarclaw

On March 15, 2011, petitioner served interrogatories to parties10 pursuant to Sections

111 and 6,12 Rule 25 of the Rules of Court to China Bank and required Mr. George C. Yap,
Account Officer of the Account Management Group, to answer.

On June 22, 2011, George Yap executed his answers to interrogatories to

parties.13redarclaw

In the meantime, having failed mediation and judicial dispute resolution, Civil Case No. 08-
1028 was re-raffled off to RTC Branch 139, Makati City.

Petitioner again moved for the hearing of his affirmative defenses. Because he found Yap’s
answers to the interrogatories to parties evasive and not responsive, petitioner applied for
the issuance of a subpoena duces tecum and ad testificandum against George Yap pursuant
to Section 6,14 Rule 25 of the Revised Rules of Court.

On April 29, 2014, when the case was called for the presentation of George Yap as a
witness, China Bank objected citing Section 5 of the JAR. China Bank said that Yap
cannot be compelled to testify in court because petitioner did not obtain and present
George Yap’s judicial affidavit. The RTC required the parties to submit their motions on the
issue of whether the preparation of a judicial affidavit by George Yap as an adverse or
hostile witness is an exception to the judicial affidavit rule.15redarclaw

Petitioner contended that Section 5 does not apply to Yap because it specifically excludes
adverse party witnesses and hostile witnesses from its application. Petitioner insists that
Yap needed to be called to the stand so that he may be qualified as a hostile witness
pursuant to the Rules of Court.

China Bank, on the other hand, stated that petitioner’s characterization of Yap’s answers to
the interrogatories to parties as ambiguous and evasive is a declaration of what type of
witness Yap is. It theorizes that the interrogatories to parties answered by Yap serve as the
judicial affidavit and there is no need for Yap to be qualified as a hostile witness.

In its May 28, 2014 Order, the RTC denied for lack of merit petitioner’s motion to examine
Yap without executing a judicial affidavit. The RTC in interpreting Section 5 of the JAR
stated:LawlibraryofCRAlaw
x x x The aforementioned provision, which allows the requesting party to avail himself of
the provisions of Rule 21 of the Rules of Court finds applicability to: (a) a government
employee or official, or the requested witness, who is neither the witness of the adverse
party nor a hostile witness and (b) who unjustifiably declines to execute a judicial
affidavitor refuses without just cause to make the relevant books, documents, or other
things under his control available for copying, authentication, and eventual production in
court.

In the case at bar, witness George Yap is being utilized as an adverse witness for the
[petitioner]. Moreover, there was no showing that he unjustifiably declines to execute a
judicial affidavit. In fact, it was [China Bank]’s counsel who insisted that said witness’
judicial affidavit be taken. Thus, Section 5 of the [JAR] which [petitioner] invoked to exempt
him from the Rule finds no application. Unless there is contrary ruling on the matter by
the Supreme Court, this court has no choice but to implement the rule as written.

On this note, this Court also finds no merit on the contention of [China Bank] that the
answer to the written interrogatories by witness George Yap already constitutes his judicial
affidavit. Inasmuch as the Court strictly implemented the [JAR] on the part of [petitioner],
so shall it rule in the same manner on the part of [China Bank]. As correctly pointed out
by [petitioner], the said answer to interrogatories does not comply with Section 3 of the
[JAR] which provides for the contents of the judicial affidavit.16

In essence, the RTC ruled that Section 5 did not apply to Yap since he was an adverse
witness and he did not unjustifiably decline to execute a judicial affidavit. It
stated:LawlibraryofCRAlaw

In view of the foregoing, the motion of the [petitioner] that witness George Yap be examined
without executing a Judicial Affidavit is hereby DENIED FOR LACK OF MERIT.17

Petitioner moved for reconsideration but it was denied by the RTC in its August 27, 2014
Order.18 The RTC reiterated its position and stated:LawlibraryofCRAlaw

It must be pointed out that the [petitioner] [was] the [one] who invoked the provisions of
Section 5 of the [JAR] to compel the attendance of witness George Yap and as such, it is
their duty to show the applicability of the said provisions to the case at bar. As stated in
the challenged Order, Section 5 of the [JAR] finds applicability to: (a) a government
employee or official, or the requested witness, who is neither the witness of the adverse
party nor a hostile witness and (b) who unjustifiably declines to execute a judicial affidavit
or refuses without just cause to make the relevant books, documents, or other things under
his control available for copying, authentication, and eventual production in court. In the
case at bar, [petitioner] [does] not deny that witness George Yap is to be utilized as [his]
adverse witness. On this score alone, it is clear that the provisions invoked do not apply.19

The RTC stressed that Section 5 of the JAR required the requested witness’ refusal to be
unjustifiable. It stated:LawlibraryofCRAlaw

x x x the [JAR] requires that the refusal must be unjustifiable and without just cause. It
must be pointed out that [China Bank]’s previous motions to quash the subpoena was
grounded on the claim that having already submitted to this court his sworn written
interrogatories, his being compelled to testify would be unreasonable, oppressive and pure
harassment. Thus, witness’ refusal to testify cannot be considered unjustifiable since he
raised valid grounds.20

Hence, this petition.

Petitioner contends that the RTC committed a grave error when it interpreted Section 5 to
include adverse party and hostile witnesses. Based on the wording of Section 5, adverse
party and hostile witnesses are clearly excluded.

China Bank asserts that Yap neither refused unjustifiably nor without just cause refused to
a judicial affidavit. It cited the RTC’s August 27, 2014 Order where the court said that Yap
had answered the interrogatories and to compel him to testify in open court would be
“unreasonable, oppressive and pure harassment.” Moreover, it stated that based on the
language used by Section 2 of the JAR the filing of judicial affidavits is mandatory.
The petition is anchored on the following arguments:LawlibraryofCRAlaw

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT INTERPRETED SEC. 5

OF THE [JAR] CONTRARY TO ITS WORDINGS.

II

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT INTERPRETED SEC. 5

[OF THE JAR] CONTRARY TO ITS PRACTICAL INTENTION AND COMMON SENSE.

III

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT EFFECTIVELY

DISREGARDED THE RELEVANT RULES ON MODE OF DISCOVERY WHICH GOVERN THE
PRESENTATION OF ADVERSE WITNESSES.

IV

ON A POLICY LEVEL AND IN THE EVENT RTC BR. 139-MAKATI’S INTERPRETATION AND
APPLICATION OF SEC. 5 OF THE [JAR] IS CORRECT (I.E., THAT OPPOSING PARTY WHO
INTENDS TO PRESENT ADVERSE OR HOSTILE WITNESS MUST GET AND SUBMIT THAT
WITNESS’ JUDICIAL AFFIDAVIT NO MATTER WHAT) IT IS HUMBLY SUBMITTED, WITH
THE UTMOST INDULGENCE OF THE HONORABLE SUPREME COURT, THAT THE SAME
RULE BE IMPROVED OR AMENDED BY PROVIDING SANCTIONS IN THE EVENT THE
ADVERSE OR HOSTILE WITNESS REFUSES TO ANSWER OR EXECUTE JUDICIAL
AFFIDAVIT AS REQUIRED BY THE OPPOSING PARTY.21

We grant the petition.

THE JUDICIAL AFFIDAVIT RULE

APPLIES TO PENDING CASES

On September 4, 2012, the JAR was promulgated to address case congestion and delays in
courts. To this end, it seeks to reduce the time needed to take witnesses’
testimonies.22 The JAR took effect on January 1, 2013 and would also apply to pending
cases pursuant to Section 12 to wit:LawlibraryofCRAlaw

Sec. 12. Effectivity. – This rule shall take effect on January 1, 2013 following its
publication in two newspapers of general circulation not later than September 15, 2012. It
shall also apply to existing cases. (Emphasis supplied)

The Court En Banc gave public prosecutors in first and second level courts one year of
modified compliance.23 The JAR thus took full effect on January 1, 2014.

Here, parties were presenting their evidence for the RTC’s consideration when the JAR took
effect. Therefore, pursuant to Section 12 the JAR applies to the present collection suit.

SECTION 5 OF THE JAR DOES NOT

APPLY TO ADVERSE PARTY WITNESSES

The JAR primarily affects the manner by which evidence is presented in court. Section 2(a)
of the JAR provides that judicial affidavits are mandatorily filed by parties to a case except
in small claims cases. These judicial affidavits take the place of direct testimony in
court. It provides:LawlibraryofCRAlaw

Sec. 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies. – (a) The
parties shall file with the court and serve on the adverse party, personally or by licensed
courier service, not later than five days before pre-trial or preliminary conference or the
scheduled hearing with respect to motions and incidents, the following:LawlibraryofCRAlaw

(1) The judicial affidavits of their witnesses, which shall take the place of such witnesses’
direct testimonies; and
(2) The parties’ documentary or object evidence, if any, which shall be attached to the
judicial affidavits and marked as Exhibits A, B, C, and so on in the case of the complainant
or the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the respondent or the
defendant.

xxxx

Section 324 of the JAR enumerates the content of a judicial affidavit.

Under Section 10,25 parties are to be penalized if they do not conform to the provisions of
the JAR. Parties are however allowed to resort to the application of a subpoena pursuant to
Rule 21 of the Rules of Court in Section 5 of the JAR in certain situations. Section 5
provides:LawlibraryofCRAlaw

Sec. 5. Subpoena. – If the government employee or official, or the requested witness, who is
neither the witness of the adverse party nor a hostile witness, unjustifiably declines to
execute a judicial affidavit or refuses without just cause to make the relevant books,
documents, or other things under his control available for copying, authentication, and
eventual production in court, the requesting party may avail himself of the issuance of a
subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The rules
governing the issuance of a subpoena to the witness in this case shall be the same as when
taking his deposition except that the taking of a judicial affidavit shal1 be understood to
be ex parte.

While we agree with the RTC that Section 5 has no application to Yap as he was presented
as a hostile witness we cannot agree that there is need for a finding that witness
unjustifiably refused to execute a judicial affidavit.

Section 5 of the JAR contemplates a situation where there is a (a) government employee or
official or (b) requested witness who is not the (1) adverse party’s witness nor (2) a hostile
witness. If this person either (a) unjustifiably declines to execute a judicial affidavit or (b)
refuses without just cause to make the relevant documents available to the other party and
its presentation to court, Section 5 allows the requesting party to avail of issuance of
subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. Thus,
adverse party witnesses and hostile witnesses being excluded they are not covered by
Section 5. Expressio unius est exclusion alterius: the express mention of one person, thing,
or consequence implies the exclusion of all others.26redarclaw

Here, Yap is a requested witness who is the adverse party’s witness. Regardless of whether
he unjustifiably declines to execute a judicial affidavit or refuses without just cause to
present the documents, Section 5 cannot be made to apply to him for the reason that he is
included in a group of individuals expressly exempt from the provision’s application.

The situation created before us begs the question: if the requested witness is the adverse
party’s witness or a hostile witness, what procedure should be followed?

The JAR being silent on this point, we turn to the provisions governing the rules on
evidence covering hostile witnesses specially Section 12, Rule 132 of the Rules of Court
which provides:LawlibraryofCRAlaw

SEC. 12. Party may not impeach his own witness. – Except with respect to witnesses
referred to in paragraphs (d) and (e) of Section 10, the party producing a witness is not
allowed to impeach his credibility.

A witness may be considered as unwilling or hostile only if so declared by the court upon
adequate showing of his adverse interest, unjustified reluctance to testify, or his having
misled the party into calling him to the witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse party, may be
impeached by the party presenting him in all respects as if he had been called by the
adverse party, except by evidence of his bad character. He may also be impeached and
cross-examined by the adverse party, but such cross-examination must only be on the
subject matter of his examination-in-chief.

Before a party may be qualified under Section 12, Rule 132 of the Rules of Court, the party
presenting the adverse party witness must comply with Section 6, Rule 25 of the Rules of
Court which provides:LawlibraryofCRAlaw

SEC. 6. Effect of failure to serve written interrogatories. – Unless thereafter allowed by the
court for good cause shown and to prevent a failure of justice, a party not served with
written interrogatories may not be compelled by the adverse party to give testimony in open
court, or to give a deposition pending appeal.

In Afulugencia v. Metropolitan Bank & Trust Co.,27 this Court stated that “in civil cases, the
procedure of calling the adverse party to the witness stand is not allowed, unless written
interrogatories are first served upon the latter.”28 There petitioners Spouses Afulugencia
sought the issuance of a subpoena duces tecum and ad testificandum to compel the officers
of the bank to testify and bring documents pertaining to the extrajudicial foreclosure and
sale of a certain parcel of land. Metrobank moved to quash the issuance of the subpoenas
on the ground of non-compliance with Section 6, Rule 25 of the Rules of Court. In
quashing the issuance of the subpoena, the Court reminded litigants that the depositions
are a mechanism by which fishing expeditions and delays may be avoided. Further written
interrogatories aid the court in limiting harassment and to focus on what is essential to a
case. The Court stated:LawlibraryofCRAlaw

One of the purposes of the above rule is to prevent fishing expeditions and needless delays;
it is there to maintain order and facilitate the conduct of trial. It will be presumed that a
party who does not serve written interrogatories on the adverse party beforehand will most
likely be unable to elicit facts useful to its case if it later opts to call the adverse party to the
witness stand as its witness. Instead, the process could be treated as a fishing expedition
or an attempt at delaying the proceedings; it produces no significant result that a prior
written interrogatories might bring.

Besides, since the calling party is deemed bound by the adverse party’s testimony,
compelling the adverse party to take the witness stand may result in the calling party
damaging its own case. Otherwise stated, if a party cannot elicit facts or information useful
to its case through the facility of written interrogatories or other mode of discovery, then the
calling of the adverse party to the witness stand could only serve to weaken its own case as
a result of the calling party’s being bound by the adverse party’s testimony, which may only
be worthless and instead detrimental to the calling party’s cause.

Another reason for the rule is that by requiring prior written interrogatories, the court may
limit the inquiry to what is relevant, and thus prevent the calling party from straying or
harassing the adverse party when it takes the latter to the stand.

Thus, the rule not only protects the adverse party from unwarranted surprises or
harassment; it likewise prevents the calling party from conducting a fishing expedition or
bungling its own case. Using its own judgment and discretion, the court can hold its own in
resolving a dispute, and need not bear witness to the parties perpetrating unfair court
practices such as fishing for evidence, badgering, or altogether ruining their own cases.
Ultimately, such unnecessary processes can only constitute a waste of the court’s precious
time, if not pointless entertainment.29 (Citation omitted)

In this case, parties, with the approval of the Court, furnished and answered interrogatories
to parties pursuant to Rule 25 of the Rules of Court. They therefore complied with Section
6 of Rule 25 of the Rules of Court. Before the present controversy arose, the RTC had
already issued subpoenas for Yap to testify and produce documents. He was called to the
witness stand when China Bank interposed its objection for non-compliance with Section 5
of the JAR. Having established that Yap, as an adverse party witness, is not within Section
5 of the JAR’s scope, the rules in presentation of adverse party witnesses as provided for
under the Rules of Court shall apply. In keeping with this Court’s decision
in Afulugencia,there is no reason for the RTC not to proceed with the presentation of Yap as
a witness.

In sum, Section 5 of the JAR expressly excludes from its application adverse party and
hostile witnesses. For the presentation of these types of witnesses, the provisions on the
Rules of Court under the Revised Rules of Evidence and all other correlative rules including
the modes of deposition and discovery rules shall apply.

WHEREFORE, the petition is GRANTED. The May 28, 2014 and August 27, 2014 Orders
of the Regional Trial Court, Branch 139, Makati City are hereby ANNULLED and SET
ASIDE.

No pronouncement as to costs.

SO ORDERED.cralawlawlibrary

EVIDENCE NOT OFFERED; EXCEPTION.

Manila

THIRD DIVISION

G.R. No. 182648 June 17, 2015

HERMAN MEDINA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to
reverse and set aside the January 7, 2008 Decision1 and April 21, 2008 Resolution2 of the
Court of Appeals (CA) in CA-G.R. CR No. 29634, which affirmed in toto the March 31, 2005
Decision3 of the Regional Trial Court (RTC), Branch 35, Santiago City, Isabela, in Criminal
Case No. 35-4021 convicting petitioner Herman Medina (Medina) of the crime of simple
theft, defined and penalized under Article 308, in relation to Article 309, Paragraph 1 of the
Revised Penal Code (RPC).

The Information4 filed against Medina states:

That on or about the 27th day of April, 2002 and for sometime thereafter, in the City of
Santiago, Philippines, within the jurisdiction of this Honorable Court, the above-named
accused, did then and there, wilfully, unlawfully and feloniously, with intent to gain and
without the knowledge and consent of the owner thereof, take, steal, and carry away the
following to wit: one (1) unit alternator worth Php5,000.00, Starter worth Php5,000.00,
battery worth Php2,500.00[,] and two (2) sets of tire 2.75 x 15 with mugs worth
Php10,000.00 all valued at Php22,500.00, owned by HENRY LIM, represented by PURITA
LIM[,] to the damage and prejudice of the owner thereof in the total amount of
Php22,500.00.

CONTRARY TO LAW[.]

The factual antecedents appear as follows:

Henry Lim (Lim) is a resident of Calao West, Santiago City, Isabela. He is the registered
owner of a Sangyong Korando Jeep with Plate No. WPC-207, which was involved in an
accident that caused damage to its roof and door. On April 27, 2002,he engaged the
services of Medina, who is a mechanic and maintains a repair shop in Buenavista, Santiago
City, Isabela. At the time the jeep was delivered to Medina’s shop, it was still in running
condition and serviceable because the under chassis was not affected and the motor
engine, wheels, steering wheels and other parts were still functioning.

A reasonable time elapsed, but no repairs were made on the jeep. So, in the morning of
September 4, 2002, Purita Lim (Purita), Lim’s sister, instructed Danilo Beltran (Beltran) to
retrieve the jeep from Medina’s shop on the agreement that he would instead repair the
vehicle in his own auto shop. Beltran, however, was not able to get the jeep since its
alternator, starter, battery, and two tires with rims worth ₱5,000.00, ₱5,000.00, ₱2,500.00,
and ₱10,000.00, respectively, could not be found. Upon inquiry, Medina told him that he
took and installed them on Lim’s another vehicle, an Isuzu pick-up, which was also being
repaired in the shop. Beltran went back in the afternoon of the same day and was able to
get the jeep, but without the missing parts. He had it towed and brought it to his own
repair shop. Before placing the jeep therein, he reported the incident to Purita. Later, the
jeep was fully repaired and put back in good running condition.

On September 12, 2002, a criminal complaint5 for simple theft was filed by Purita,
representing her brother. The City Prosecutor found probable cause to indict
Medina.6 Subsequently, an Information was filed before the court a quo.

In his arraignment, Medina pleaded not guilty.7 No settlement, stipulation or admission

was made by the parties during the pre-trial.8 During the trial proper, Beltran and Lim
were presented as witnesses for the prosecution, while Medina and a certain Angelina
Tumamao, a former barangay kagawad of Buenavista, Santiago City, testified for the
defense. Eventually, the case was submitted for decision, but without the formal offer of
evidence by the defense.9

The trial court found Medina guilty beyond reasonable doubt of the crime charged. The fallo
of the March 31, 2005 Decision reads:

WHEREFORE, judgment is hereby rendered, finding the accused guilty beyond reasonable
doubt, and considering the absence of mitigating [or] aggravating circumstances and
applying the Indeterminate Sentence Law, the accused is hereby sentenced to suffer the
penalty of imprisonment of three (3) years, six (6) months and twenty-one (21) days of
prision correccional as minimum, to eight (8) years, eight (8) months and one (1) day of
prision mayor as maximum. The accused is likewise ordered to indemnify Henry Lim the
total amount of ₱22,500.00. No imprisonment in case of insolvency.

SO ORDERED.10

On appeal, the CA affirmed the conviction of Medina. While the trial court was not
convinced with Medina’s justification that he installed the jeep’s missing parts to the pick-
up also owned by Lim, the CA opined that his excuse is "so lame and flimsy." The CA
agreed with the lower court’s findings that Medina admitted that the jeep is more valuable
than the pickup; that unlike the pick-up, the needed repairs on the jeep is only minor in
nature; that Medina failed to prove that the pick-up was completely repaired and was
placed in good running condition; and that he failed to prove that the pick-up is owned by
Lim. The CA also held that the positive testimony of Beltran deserves merit in contrast with
the self-serving testimony of Medina. Finally, no credence was given to Medina’s assertion
that the missing auto parts were turned over to Crispin Mendoza, who is alleged to be an
employee of Lim. For the CA, the trial court correctly ruled that such claim was
unsubstantiated in view of Medina’s failure to formally offer in evidence the purported
acknowledgment receipt. Assuming that the exception in Mato v. CA11 is taken into
account, the receipt could not still be considered because it was not incorporated in the
records of the case.

When his motion for reconsideration was denied, Medina filed this petition which alleges
the following errors:

I.

THE [HONORABLE] COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED THE

CONVICTION OF THE PETITIONER DESPITE THE FACT THAT THE PROSECUTION ONLY
PRESENTED CIRCUMSTANTIAL EVIDENCE IN THEIR ATTEMPT TO PROVE THE GUILT OF
THE ACCUSED BEYOND REASONABLE DOUBT. WORST, IT SPECIFICALLY ADVANCED
ONLY ONE SINGLE CIRCUMSTANCE[,] THAT IS[,] THE TESTIMONY OF PROSECUTION
WITNESS DANILO BELTRAN THAT THE STARTER, [ALTERNATOR], BATTERY[,] AND TWO
(2) PIECES [OF] TIRES WITH MUGS (MAG WHEELS) OF THE KORANDO JEEP WERE
SIMPLY MISSING, THUS[,] NOT SUFFICIENT TO SUSTAIN CONVICTION IN ACCORDANCE
WITH SECTION 4, RULE 133 OF THE RULES OF COURT.

II.

THE [HONORABLE] COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE

CONVICTION OFTHE PETITIONER DESPITE THE FACT THAT THE PROSECUTION RELIED
NOT ON THE STRENGTH OF ITS EVIDENCE BUT ON THE WEAKNESS OF THE DEFENSE
CONTRARY TO THE RULING OF THE HONORABLE COURT IN PHILIPPINES VS. ALVARIO.
 III.

THE [HONORABLE] COURT OF APPEALS GRAVELY ERRED WHEN IT [AFFIRMED] THE

CONVICTION OF THE PETITIONER DESPITE [THE] FACT [THAT] THERE WAS NO
FURTIVE TAKING OR UNLAWFUL ASPORTATION, IN THE CRIMINAL SENSE,
CONSIDERING THAT THE TAKING, IF AT ALL, WAS WITH THE KNOWLEDGE AND
ACQUIESCENCE OF THE PRIVATE COMPLAINANT PURSUANT TO THE RULING OF THE
HONORABLE COURT IN ABUNDO VS. SANDIGANBAYAN, ET AL. AND THE UNREBUTTED
EVIDENCE FOR THE DEFENSE.

IV.

THE HONORABLE COURT GRAVELY ERRED IN NOT CONSIDERING THE RECEIPT

MARKED AS EXHIBIT "2" FOR THE DEFENSE, LIKEWISE MARKED AS EXHIBIT "C" FOR
THE PROSECUTION (COMMON EVIDENCE) NOT FORMALLY OFFERED IN EVIDENCE
DUE TO THE GROSS NEGLIGENCE OF THE FORMER COUNSEL FOR THE PETITIONER
IN THE GREATER INTEREST OF JUSTICE, ONE OFTHE EXCEPTIONS PROVIDED FOR BY
THE HONORABLE COURT IN SARRAGA, SR. VS. BANCO FILIPINO SAVINGS AND
MORTGAGE BANK.12

We deny.

Theft is committed by any person who, with intent to gain, but without violence against or
intimidation of persons nor force upon things, shall take personal property of another
without the latter’s consent.13 As defined and penalized, the elements of the crime are: (1)
there was taking of personal property; (2) the property belongs to another; (3) the taking
was done with intent to gain; (4) the taking was without the consent of the owner; and (5)
the taking was accomplished without the use of violence against, or intimidation of persons
or force, upon things.14 Intent to gain or animus lucrandi is an internal act that is
presumed from the unlawful taking by the offender of the thing subject of
asportation.15 Although proof as to motive for the crime is essential when the evidence of
the theft is circumstantial, the intent to gain is the usual motive to be presumed from all
furtive taking of useful property appertaining to another, unless special circumstances
reveal a different intent on the part of the perpetrator.16 As to the concept of "taking" –

The only requirement for a personal property to be the object of theft under the penal code
is that it be capable of appropriation. It need not be capable of "asportation," which is
defined as "carrying away." Jurisprudence is settled that to "take" under the theft provision
of the penal code does not require asportation or carrying away.

To appropriate means to deprive the lawful owner of the thing. The word "take" in the
Revised Penal Code includes any act intended to transfer possession which x x x may be
committed through the use of the offenders' own hands, as well as any mechanical device x
x x.17

In this case, Medina acknowledged without hesitation the taking of the jeep’s alternator,
starter, battery, and two tires with magwheels, but he put up the defense that they were
installed in the pick-up owned by Lim.18 With such admission, the burden of evidence is
shifted on him to prove that the missing parts were indeed lawfully taken. Upon perusal of
the transcript of stenographic notes, the Court finds that Medina unsatisfactorily
discharged the burden. Even bearing in mind the testimony of Tumamao, he failed to
substantiate, through the presentation of supporting documentary evidence or
corroborative testimony, the claims that: (1) Lim was the owner of the pick-up; (2) the
missing parts of the jeep were exactly the same items that were placed in the pick-up; (3)
Lim consented, expressly or impliedly, to the transfer of auto parts; and (4) Mendoza
witnessed the removal of the spare parts from the jeep and their placement to the pick-up.
Neither did Medina adduce any justifying19 or exempting20 circumstance to avoid criminal
liability.

On the contrary, Lim firmly testified that when he entrusted to Medina the jeep’s repair it
was still in running condition and complete with alternator, starter, battery, and tires,
which went missing by the time the vehicle was recovered from the auto shop.21 Likewise,
the testimony of Beltran is definite and straightforward. He declared that he was not able to
get the jeep in the morning of September 4, 2002 because its alternator, starter, battery,
and two tires with rims could not be found, and that when he asked Medina as to their
whereabouts the latter told him that he took them, placed the starter in Lim’s pick-up while
the alternator was in the repair shop.22 Medina informed him that the jeep’s missing parts
were actually installed to Lim’s other vehicle which was also being repaired at the
time.23However, Beltran did not know or had not seen other vehicles owned by Lim at
Medina’s shop.24 In the afternoon of the sameday, he was able to get the jeep but not its
missing parts.25 He concluded that they were lost because he inspected the jeep.26

Abundo v. Sandiganbayan,27 which was relied upon by Medina, does not apply. In said
case, the element of lack of owner's consent to the taking of the junk chassis was absent
since the records showed that Abundo made a request in writing to be allowed to use one
old jeep chassis among the pile of junk motor vehicles. His request was granted. A
memorandum receipt was issued and signed. Pursuant thereto, the chassis was taken out.
There was no furtive taking or unlawful asportation. The physical and juridical possession
of the junk chassis was transferred to Abundo at his request, with the consent or
acquiescence of the owner, the Government, represented by the public officials who had
legal and physical possession of it. We noted that the crime of theft implies an invasion of
possession; therefore, there can be no theft when the owner voluntarily parted with the
possession of the thing. The Court agreed with the observation of the Solicitor General that
a thief does not ask for permission to steal. Indeed, a taking which is done with the consent
or acquiescence of the owner of the property is not felonious.28

Medina cannot acquit himself on the basis of a purported acknowledgment receipt29 that he
and Tumamao identified during their presentation as witnesses for the defense. According
to his testimony, Mendoza came to his (Medina’s) place and saw the subject auto parts
while being transferred from the jeep to the pick-up and that, relative thereto, Medina even
called barangay officials and let them signed a document to bear witness on the
matter.30 The document, dated July 25, 2002, which was marked as Exhibit "2," was signed
byMendoza, Jovy Bardiaga (said to be Lim’s chief mechanic), Mario Pascual (said to be
Medina’s helper), and Rosalina Bautista and Tumamao (said to be barangay kagawads).
Ostensibly, they signed the document while facing each other in front of Medina’s house.31

In Mato v. CA,32 which referred to People v. Napat-a,33 citing People v. Mate,34 We relaxed
the application of Section 34, Rule 13235 of the Rules of Court by allowing the admission of
evidence not formally offered. To be admissible, however, two essential conditions must
concur: first, the same must have been duly identified by testimony duly recorded and,
second, the same must have been incorporated in the records of the case.36

As regards this case, the acknowledgment receipt was not considered by the trial court
because it was not formally offered in evidence. While it was duly identified by the defense
testimony that was duly recorded, the receipt itself was not incorporated in the case
records. For its part, the CA opined that nowhere from the case records does Medina’s
acknowledgment receipt appear. Yet, upon examination, it appears that the July 25, 2002
acknowledgment receipt was attached as Annex "3" of Medina’s Appellant’s
Brief.37 Accordingly, the CA should have mulled over this piece of document, especially so
since the prosecution even prayed, and was granted, during the trial proper that said
receipt be marked as Exhibit "C."38

Nevertheless, even if this Court admits in evidence the acknowledgment receipt, the same
would still not exonerate Medina.1âwphi1 This is due to his admission that Bardiaga,
Pascual, and Bautista did not actually see him remove the alternator, starter, battery, and
tires with rims from the jeep and put the same to the pick-up.39 Likewise, while Medina
asserted that Mendoza came to his place and was shown that the missing auto parts were
transferred from the jeep to the pick-up, the latter was not presented as a hostile witness to
confirm such expedient claim. As against the positive and categorical testimonies of the
prosecution witnesses, Medina’s mere denials cannot prevail for being self-serving and
uncorroborated. Denial is considered with suspicion and always received with caution
because it is inherently weak and unreliable, easily fabricated and concocted.40

Denial, essentially a negation of a fact, does not prevail over an affirmative assertion of the
fact. Thus, courts – both trial and appellate – have generally viewed the defense of denial in
criminal cases with considerable caution, if not with outright rejection. Such judicial
attitude comes from the recognition that denial is inherently weak and unreliable by virtue
of its being an excuse too easy and too convenient for the guilty to make. To be worthy of
consideration at all, denial should be substantiated by clear and convincing evidence. The
accused cannot solely rely on her negative and self-serving negations, for denial carries no
weight in law and has no greater evidentiary value than the testimony of credible witnesses
who testify on affirmative matters.41 Further, Medina did not demonstrate any evidence of
ill motive on the part of the prosecution witnesses as to falsely testify against him. In the
absence of any evidence that the prosecution witnesses were motivated by improper
motives, the trial court's assessment of the credibility of the witnesses shall not be
interfered with by this Court.42

There being no compelling reason to disregard the same, the Court yields to the factual
findings of the trial court, which were affirmed by the CA. This is in line with the precept
that when the trial court's findings have been affirmed by the appellate court, said findings
are generally conclusive and binding upon Us.43 It is only in exceptional circumstances,
such as when the trial court overlooked material and relevant matters, that We will
recalibrate and evaluate the factual findings of the court below.44 As held in Co Kiat v.
Court of Appeals:45

It is a well-settled doctrine in this jurisdiction, that factual findings of the trial court are
entitled to great weight and authority (Macua vs. Intermediate Appellate Court, 155 SCRA
29) and that the jurisdiction of the Supreme Court in cases brought toit from the Court of
Appeals, is limited to reviewing and revising the errors of law imputed to it, its findings of
facts being conclusive (Chan vs. Court of Appeals, 33 SCRA 737).

In a petition for review of decisions of the Court of Appeals, the jurisdiction of this Court is
confined to reviewing questions of law, unless the factual findings are totally bereft of
support in the records or are so glaringly erroneous as to constitute a serious abuse of
discretion (Canete, et al. vs. Court of Appeals, 171 SCRA 13).

Except in criminal cases in which the penalty imposed is reclusion perpetua or higher,
appeals to the Supreme Court are not a matter of right but of sound judicial discretion and
are allowed only on questions of law and only when there are special and important
reasons, which we do not find in this case (Balde vs. Court of Appeals, 150 SCRA 365).46

Now on the propriety of the penalty imposed by the trial court:

Under Article 309 of the RPC, an accused found guilty of simple theft when the value of the
stolen property exceeds ₱22,000.00 shall be sentenced to:

Art. 309. Penalties. – Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of the
thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the value
of the thing stolen exceed the latter amount, the penalty shall be the maximum period of
the one prescribed in this paragraph, and one year for each additional ten thousand pesos,
but the total of the penalty which may be imposed shall not exceed twenty years. In such
cases, and in connection with the accessory penalties which may be imposed and for the
purpose of the other provisions of this Code, the penalty shall be termed prision mayor or
reclusion temporal, as the case may be.47

Applying the Indeterminate Sentence Law, the maximum of the indeterminate penalty is
that which, taking into consideration the attending circumstances, could be properly
imposed under the RPC.48 As the value of the auto parts stolen from Lim is in excess of
₱22,000.00, the penalty imposable is the maximum period of the penalty prescribed by
Article 309, which is the maximum of prision mayor in its minimum and medium periods.
Since the penalty prescribed is composed of only two periods, Article 65 of the RPC requires
the division into three equal portions the time included in the penalty, forming one period
of each of the three portions. Thus, the minimum, medium, and maximum periods of the
penalty prescribed are:

Minimum - 6 years and l day to 7 years and 4 months

Medium - 7 years, 4 months and 1 day to 8 years and 8 months

Maximum - 8 years, 8 months, and 1 day to 10 years

The minimum of the indeterminate penalty shall be-anywhere within the range of the
penalty next lower in degree to that prescribed for the offense, without first considering any
modifying circumstance attendant to the commission of the crime.49 In this case, the
pep.alty next lower in degree to that prescribed for the offense is prision correccional in its
medium and maximum periods, or anywhere from Two (2) years,. Four (4) months and One
(1) day to Six (6) years. Thus, the trial court did not err when it sentenced Medina to suffer
the penalty of imprisonment of Three (3) years, Six (6) months and Twenty-One (21) days of
prision correccional, as minimum, to Eight (8) years, Eight (8) months and One (1) day of
prision mayor, as maximum.50 WHEREFORE, premises considered, the Petition is DENIED.
The January 7, 2008 Decision and April 21, 2008 Resolution of the Court of Appeals in CA-
G.R. CR. No. 29634,1 which affirmed in toto the March 31, 2005 Decision of the Regional
Trial Court, Branch 3), Santiago City, Isabela, in Criminal Case No. 35-4021 convicting
Herman Medina for the crime of simple theft, is hereby AFFIRMED.

SO ORDERED.

DIOSDADO M. PERALTA*
Associate Justice

REPEATED CASE G.R. No. 174333

REPEATED CASE G.R. No. 206226

CHILD WITNESS RULE

EN BANC

[G.R. No. 131805. September 7, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GREGORIO HERMOSA and

GABRIEL ABELINDE, accused-appellants.

DECISION
PUNO, J.:

Accused GREGORIO HERMOSA and GABRIEL ABELINDE were meted the death penalty
for the crime of murder. The crime was allegedly committed as follows:[1]

That sometime on January 11, 1995, at about 1:00 oclock in (the) morning more or less, at
Barangay Gahit, Municipality of Caitingan, Province of Masbate, Philippines, within the
jurisdiction of this Honorable Court, the above-named accused, with intent to kill,
conspiring and confederating and mutually helping one another, with evident
premeditation, use of superior strength and noctornity (sic) as cover, treachery, did
then and there willfully, unlawfully and feloniously, with the use of sharp and pointed
bolo, assault, attack, hack and stab a woman named ELEONOR (sic) CONDE
MALIPOT thereby hitting the latter at the different parts of her body which was the direct
and logical (cause) of her instantaneous death.

CONTRARY TO LAW.

Upon arraignment, both accused pled not guilty to the offense charged.[2] Trial ensued.
The prosecution presented the testimonies of Macuibelle Malipot, her siblings Marither
and Elizalde, and Municipal Health Officer Allen Ching. For its part, the defense presented
Bienvenido Habanez, policeman Raymundo Meliton and the accused, Gregorio Hermosa and
Gabriel Abelinde.
The records show that in the early morning of January 11, 1995, the residents of Sitio
Mayabas found the lifeless body of Eleanor Conde Malipot[3] near a creek, a few meters behind
her house in Sitio Mayabas, Cataingan, Masbate. She was 43 years old. A widow, the
deceased was survived by four (4) children, namely: Elizalde, 15 years old, Marither, 12 years
old, Macuibelle, 8 years old, and Dexter (Nonoy), 4 years old.
The Medico-Legal Report[4] of Municipal Health Officer Allen Ching revealed that the
victim sustained the following wounds:
 1. Hacking wound, neck up to the cervical vertebra multiple.
2. Hacking wound, mouth.
3. Hacking wound, forehead, left superficial.
4. Hacking wound, maxilla left.
5. 5 cm. Lacerated wound, anterior arm right.
6. 6 cm. Lacerated wound, anterior hand around the base of the first finger left.
The victim died due to cardio-respiratory arrest, hypovolemia and multiple hack wounds
on the neck. The doctor explained that the multiple hack wounds on the neck had cut the
bone and one of the major arteries of the victim. With the said injuries, the victim had no
chance of survival and had probably lived for about five (5) minutes.[5]
The victims 8-year old daughter, Macuibelle, partially witnessed the tragic incident. She
testified that at about 1 oclock in the morning of January 11, 1995, she was roused by the
victims scream. She peeped through a hole in the wall of their room and saw the victim at
the main door of their house, near the stairs.[6] The victim had a lamp in one hand, and a
bolo in the other. The victim was shouting, Zaldy, help!, referring to her eldest son,
Elizalde. At that time, however, Elizalde and Marither had slept in the house of their
respective friends.[7]
Macuibelle also saw the two accused: Gregorio Hermosa was standing in front of the
victim while Gabriel Abelinde was at the front yard, clubbing the victims carabao that was
tied some four (4) meters away from the house.[8] Suddenly, Hermosa stabbed the
victim. Thereafter, Hermosa and Abelinde forcibly took the victim from the house and dragged
her towards the nearby creek. Macuibelle shouted for help. No one responded. Her only
companion then was her 4-year old brother, Dexter. Afraid, she went back to sleep.[9]
The night before, there was a celebration in the house of the victims neighbor, Bienvenido
Habanez.[10] It was his sons birthday and a dance was being held in his place. The victim and
her 12-year old daughter, Marither, set up a makeshift store in front of Habanezs house
selling assorted merchandise such as cigarettes and liquor.[11]
Hermosa and Abelinde attended the party. They drank tuba near the makeshift store of
the victim. Abelinde approached the victim and asked, on behalf of Hermosa, if the latter
could buy liquor on credit. The victim refused as Hermosa still owed her money. Abelinde
went back to Hermosa and they continued drinking the tuba. Slighted, Hermosa gave a
dagger look at the victim.[12]
At around midnight, the victim and Marither packed up their things. The victim kept the
unsold goods and the proceeds of the sale and headed for home. Marither was left behind to
fetch Dexter as he had fallen asleep in the house of Habanez. Marither carried her brother
on her way home. Her friend, Glenda, walked with her. As they approached the place where
the two accused were seated, Hermosa tapped Abelinde and commented that the victim was
on her way home.Hermosa stared at the victim until she disappeared behind the mango
tree.[13]
When Marither reached their house, she put her brother in their room. At that time,
Macuibelle was still awake. With the victims permission, Marither walked her friend home
and spent the night in her uncles house. The victim and Macuibelle were praying when
Marither left.[14]
Marither woke up at 5:00 a.m. on June 11, 1995. Moments later, she saw her aunt Elsie
and uncle Payo running towards their house. A certain Rowena Lonido told her that the
victim was killed and that their carabao had been stolen.Marither rushed to the crime scene
and found the lifeless body of the victim beside the creek, about seven (7) meters from their
house. She embraced the victim and cried.[15]
Elizalde corroborated the testimony of Marither that the accused tried to get liquor from
the victim on credit, but the victim refused.
The two accused were arrested on the day the body of the victim was
discovered. Policeman Raymundo Meliton investigated the incident. He proceeded to the
house of the victim and talked to Macuibelle and Dexter. They did not immediately reveal the
names of the accused as suspects. He then interviewed the people in the neighborhood and
those in the house of Habanez. When policeman Meliton returned to the house of the victim
a few hours later, Macuibelle revealed to him that the accused were the assailants. He learned
that the accused got mad at the victim when she refused to sell liquor to them on
credit. Policeman Meliton picked up the accused for investigation. They denied any
participation in the killing.[16] Nonetheless, he prepared the affidavits of the prosecution
witnesses and charged the accused.[17]
The defense proffered was denial and alibi.
Gabriel Abelinde testified that he attended the birthday party of Habanezs son. His
companions were his son, his father, and spouses Eulalio and Clementina Pagunsan. At 9:30
p.m., Hermosa joined his group. They engaged in a drinking spree. They consumed four (4)
jars of tuba until 10:30 p.m.
Abelinde claimed that the victim participated in the dancing and in the drinking
spree. Allegedly, the victim approached him and told him to look out for one Ludy Gonzales
because the latter owed her money. Strangely, however, Abelinde insisted that the dance took
place on the 11th, not on the 10th, day of January. The next day, January 12, he learned
through his wife that the victim had been killed.
Abelinde averred that he went home at about 1:00 a.m. after the party. He slept in his
house which is approximately 300 meters away from the victims house. He was with his son,
his wife and his father. Hermosa spent the night with him because Hermosas house was
more distant.
Abelinde denied any participation in the killing of the victim. He said he had no quarrel
with her prior to the tragic incident. She was also a relative of his father.
Gregorio Hermosa also denied any participation in the crime. He claimed that after they
left the house of Habanez, he passed the night in Abelindes house. He woke up the next day
at 7:00 a.m. and learned of the death of the victim. He went home to inform his mother of
the incident. At 9:00 a.m., the policemen arrested him.
After the trial, the court a quo found the accused guilty of murder. The dispositive portion
of the trial courts decision provides:[18]

ACCORDINGLY, the court finds the accused Gregorio Hermosa and Gabriel Abelinde guilty
beyond reasonable doubt of the crime of MURDER and hereby imposes upon them the
supreme penalty of DEATH, and shall indemnify the legal heirs (of the victim) the amount
of P50,000.00 in solidum for the death of Eleonor Malipot and P20,000.00 as moral
damages.

With costs de oficio.

The records of the case were forwarded to this Court for automatic review.
It appears that the appellants were not imprisoned in the New Bilibid
Prisons.[19] Appellants escaped from Matipuron Provincial Jail, Milagros, Masbate, on June
14, 1998.[20] They remain at large.
Pursuant to this Courts directive, the Public Attorneys Office and the Office of the Solicitor
General filed their Briefs for the appellants and the appellee, respectively.
Appellants counsel de oficio contends that:

I. THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDIT TO THE
TESTIMONY OF PROSECUTION WITNESS MACUIBELLE MALIPOT.

II. THE TRIAL COURT ERRED IN HOLDING THAT ACCUSED-APPELLANTS HAD

MOTIVE TO KILL THE VICTIM, ELEONOR C. (sic) MALIPOT, AFTER SHE REFUSED TO
ALLOW THEM TO PURCHASE LIQUOR ON CREDIT.

III. THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANTS OF MURDER

AND IN IMPOSING UPON THEM THE DEATH PENALTY.

We restate the rule that this Court is not precluded from reviewing the death sentence of
an accused who is at large.[21] In line with the rule, we now determine the criminal and civil
liabilities of the appellants.
We modify the judgment and hold that the appellants are liable for homicide, not murder.
The oft-repeated rule is that the trial courts evaluation of the testimony of a witness is
accorded the highest respect because of its direct opportunity to observe the witnesses on
the stand and to determine if they are telling the truth or not.[22]This opportunity enables the
trial judge to detect better that thin line between fact and prevarication that will determine
the guilt or innocence of the accused. That line may not be discernible from a mere reading
of the impersonal record by the reviewing court.[23] Thus, the trial judges evaluation of the
competence and credibility of a witness will not be disturbed on review, unless it is clear from
the records that his judgment is erroneous.[24]
We have scrutinized the testimony of the lone eyewitness, Macuibelle Malipot. She
candidly recounted the events surrounding the killing of the victim as follows:[25]
ATTY. NICOMEDES ROMAGOS ON CROSS-EXAMINATION:
Q: Macuibelle Malipot, you have testified that you were only awaken(ed) by the shout of
your mother, Eleonor Malipot, asking assistance from your brother Zaldy, am I
correct?
A: Yes, sir.
Q: At what precise moment that you were awaken(ed)
A: Nearing 1:00 oclock.
Q: Why were you awaken(ed)?
A: Because my mother was shouting.
Q: And because of that you stated that you also stood up and peeped at the hole of your
house, am I correct, Macuibelle Malipot?
A: Yes, sir.
Q: And you have also testified at the time you saw your mother, she was already in (sic)
the main door. Why is it Macuibelle Malipot that you peeped when your mother is on
(sic) the main door?
PROSECUTOR:
The witness testified that she was at (sic) the room.
xxxxxxxxx
WITNESS:
A: The door is located at (sic) a stair.
ATTY. ROMAGOS:
Q: You mean to tell this Honorable Court Macuibelle, your door could not be seen when
you are in the room?
WITNESS:
A: It could be seen.
xxxxxxxxx
(ATTY. ROMAGOS):
Q: You said that your mother was carrying a lamp, may we know from you how big is its
wick?
INTERPRETER:
Witness demonstrating a small lamp with a height of 6 inches.
COURT:
Q: How did your mother handle the lamp?
A: She was carrying it with her left hand and she was holding a bolo.
Q: Do you know why your mother was holding a bolo?
A: I do not know.
xxxxxxxxx
ATTY. ROMAGOS:
Q: You did not know why your mother was carrying a bolo on that particular night. But
how long was that bolo she was carrying on (sic) that moment?
INTERPRETER:
Witness demonstrates the length of the bolo which is about twenty (20) inches.
xxxxxxxxx
 ATTY. ROMAGOS:
Q: When your mother got that bolo Macuibelle, you said you were not still (sic)
awaken(ed) but only when your mother shouted for help, do I get you right?
A: Yes, sir.
COURT:
Q: How far is the creek from your house?
INTERPRETER:
Witness pointing from her seat to the door with a distance of about twenty (20) meters.
COURT:
Q: Now from the creek you mentioned, where did you see accused Gregorio
Hermosa stab your mother?
A: Gregorio Hermosa stabbed my mother near the door of our house.
Q: Do you know why the body of your mother was there at the creek near your house?
A: Because she was dragged by Gregorio Hermosa and Gabriel Abelinde.
COURT:
Proceed.
ATTY. ROMAGOS:
Q: You stated she was dragged but it was a very dark night, Macuibelle?
A: But my mother has a lamp.
Q: You mean to tell this Honorable Court that at the time she was dragged she was still
holding the lamp?
A: Yes, sir.
Q: And you remained on that place where you were peeping inspite (sic) the fact that
your mother was dragged?
A: Yes, sir.
Q: Did you not scream for help Macuibelle when your mother was dragged?
A: I shouted but no one came up.
Q: But on that particular moment, were you not frightened, Macuibelle?
A: I was afraid.
Q: Do you have a very close neighbor?
A: We have neighbors but far. (emphases ours)
We give full faith and credit to her testimony. She was young and unschooled, but her
narration of the incident was honest and sincere. It cannot be suspected as a concocted story,
impressed upon her by other people.
We should not take Macuibelles testimony lightly simply because she was a mere child
when she witnessed the incident and when she gave her testimony in court. There is no
showing that her mental maturity rendered her incapable of testifying and of relating the
incident truthfully. Indeed, the time when we degrade a child witness testimony is now
pass. In the new Child Witness Rule,[26] every child is presumed qualified to be a witness. To
rebut this presumption, the burden of proof lies on the party challenging the childs
competence. Only when substantial doubt exists regarding the ability of the child to perceive,
remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the
truth in court will the court, motu proprio or on motion of a party, conduct a competency
examination of a child.[27]
Nonetheless, the appellants impugn the testimony of Macuibelle on the ground that she
did not immediately tag them as the culprits when the investigating officer arrived at the
scene. They also contend that it was improbable for the eyewitness to see the assailants of
the victim because they would have put off the lamp she was carrying to avoid recognition.
We are not convinced. The alleged delay in identifying the appellants is more apparent
than real. It is clear from the records that the appellants were identified by Macuibelle as the
persons responsible for the death of the victim. She failed to mention their names when the
police first arrived at the scene, but a few hours later, she told the police that the appellants
were the assailants. In fact, the appellants were immediately arrested shortly after the
discovery of the crime.[28]
Failure to immediately reveal the identity of the perpetrator of a felony will not necessarily
impair the credibility of a witness.[29] Even adult witnesses sometimes would not reveal at
once the killers of their loved ones for one reason or another.[30] Fear of the criminal is one
such reason.[31]
We stress that the identity of the appellants was well established. Macuibelle positively
identified them. The victim was then at the main door of their house when the appellants
forcibly dragged her. She saw them from a distance of about six (6) meters. The lamp held by
the victim provided the light that gave Macuibelle the chance to recognize the
appellants.[32] She was also familiar with them because they were neighbors. The possibility
that she was mistaken as to their identity is nil.
We note, too, that appellant Abelinde claimed that his father and the victim were
relatives. If that were true, then it is more unlikely for Macuibelle and her siblings to impute
a grievous offense against him unless they are certain as to his involvement in the
crime. Even appellant Hermosa could not think of any reason why Macuibelle pointed to him
as one of the perpetrators of the crime.[33] Her lack of ill motive bolsters her credibility.
The appellants also discredit Macuibelle because she went back to sleep after witnessing
the stabbing of her mother. For the appellants, such behavior meant she did not witness the
incident.
Again, we disagree. Macuibelle was only eight (8) years old when she witnessed the
shocking incident. Despite her plea, no one came to help them when the appellants attacked
the victim and dragged her from their house. She was helpless and afraid. She knew her
brother Zaldy and sister Marither were not around to protect her. After the traumatic
incident, it is difficult to fault her when she chose to go back to sleep and wait for her siblings
to arrive the next day. Her behavior is not irrational.[34]
The appellants further insist that Macuibelle is not a credible witness because, contrary
to her claim that the victim was stabbed on the chest, the medical report of Dr. Ching showed
that the wounds of the victim were mostly located on the neck. Moreover, appellants suggest
that the stabbing incident must have transpired first before the victim shouted for help, thus,
when Macuibelle woke up later, she did not really see what happened to the victim.
The argument does not impress. The exact location of the victims wounds does not
destroy Macuibelles testimony that appellant Hermosa was the one who stabbed the victim
and, with Abelindes help, dragged her to the nearby creek where they finally finished her
off. The misdescription of where appellant Hermosa stabbed the victim does not mean the
witness perjured herself. The violent incident happened fast. Macuibelle just woke up and
witnessed the bloody assault. It was a traumatic experience for the eight-year old girl. She
cannot be expected to have a perfect memory of an event she may even want to forget.
The appellants defense of denial and alibi cannot prevail over their positive
identification. Alibi is the weakest defense as it is easy to concoct. For alibi to prosper, an
accused must not only prove that he was absent at the crime scene at the time of its
commission, but also, that it was physically impossible for him to be so situated at said
distance.[35]
In the case at bar, it was established that, at the time of the incident, appellant Abelinde
was residing in San Pedro, a barangay adjacent to barangay Gahit (the locus criminis). The
distance of his house from the victims house was about three hundred (300)
meters.[36] Appellant Hermosa himself admitted that, from the said distance, it would only
take him five (5) minutes to reach the victims place on foot.[37] Thus, even assuming that the
appellants went to Abelindes house after the dance, it was not impossible for them to go to
the house of the victim and commit the crime.
Appellants reliance on the alleged absence of bloodstains on the clothes they allegedly
wore the night before the killing will not exculpate them. There is no proof that the clothes
they wore at the dance were the same clothes they wore when they went to the victims house
to kill her.
Appellants cannot also capitalize on the testimony of policeman Meliton that he had
another suspect. Meliton himself admitted that he had insufficient evidence against the third
suspect.
Moreover, the conduct of appellant Abelinde on the day the slaying of the victim was
discovered is inconsistent with his alleged innocence. Appellant Abelinde claimed that the
victim was a relative, yet he was nonchalant when he learned of her violent death. He went
to plow the field and plant his crops as if nothing unusual had happened.
We sustain the trial courts finding of conspiracy. Conspiracy does not require an
agreement for an appreciable period prior to the commission of the crime. It exists when, at
the time of the commission of the offense, the malefactors had the same purpose and were
united in its execution.[38] Macuibelle testified that appellant Abelinde clubbed the victims
carabao. Thereafter, he joined appellant Hermosa who was then at the main door of the
victims house. They acted in unison in dragging the victim from her house to the creek where
they finally finished her off. Their conduct clearly showed their mutual intent to kill the
victim.
We now determine whether or not the qualifying and aggravating circumstances alleged
in the information, to wit: evident premeditation, treachery, taking advantage of superior
strength and nighttime, were established.
The trial court ruled as follows:[39]

The killing was qualified and characterized:

1) with evident premeditation because the killing was pre-planned (upon the victims refusal
to give liquor on credit at about ten oclock in the evening, the accused roused with anger or
showed signs of wrath followed by cool utterance or intention to follow the victim home,
and finally after the lapse of about three hours or at one oclock early dawn, they killed
herthe accused had sufficient time to reflect dispassionately upon the consequences of their
contemplated act); 2) with treachery because the malefactors took the defenseless victim at
the main door of the house while on her way down and one of them thrust her with a knife
and dragged (her) to the dark (sic) creek to finish her (off); 3) with abuse of superior
strength because the victim (a woman) was attacked with a deadly weapon; and 4) by
nocturnity because the accused took advantage of the darkness.

We hold that the trial court erred in appreciating the qualifying circumstance of evident
premeditation. There is evident premeditation when the following requirements are proved:
(a) the time when the appellant decided to commit the crime; (b) an overt act showing that
the appellant clung to his determination to commit the crime; and (c) the lapse of sufficient
period of time between the decision and the execution of the crime, to allow the appellant to
reflect upon the consequences of the act. Evident premeditation must, like the crime itself,
be proved beyond reasonable doubt.[40]
In the case at bar, the evidence shows that appellant Hermosa was slighted by the refusal
of the victim to extend credit in his favor. He gave her a dagger look. However, such behavior
by itself is insufficient to prove that the appellants had determined, at that time, to kill the
victim.[41] At most, it only proved the motive for the killing.
We also rule that treachery was not established. The essence of treachery is that the
attack is deliberate and without warningdone in a swift and unexpected manner, affording
the hapless and unsuspecting victim no chance to resist or escape.[42] The prosecution did
not prove the deliberateness of the attack. The evidence shows that Macuibelle peeped
through the hole on the wall only after she heard the victim made an outcry. Appellant
Hermosa was already at the main door and was then in the act of assaulting the
victim. Macuibelle could not give the particulars on how the killing of the victim began and
developed. Absent any particulars on how the aggression commenced or how the act which
resulted in the victims death unfolded, treachery cannot be appreciated.[43] We note, further,
that the victim was aware of the danger on her life. She was holding a bolo when she was
attacked. She was also able to shout for help. In light of these circumstances, treachery
cannot be appreciated.
We also hold that the circumstance of nighttime did not aggravate the crime. There is no
proof that the appellants purposely sought nighttime to facilitate the commission of the
crime. The mere fact that the crime was committed at nighttime does not automatically make
nocturnity an aggravating circumstance.[44]
Nor can we agree that the crime was committed with abuse of superior strength. This
circumstance should be appreciated whenever there is a notorious inequality of forces
between the victim and the aggressor, assuming a situation of superiority of strength
notoriously advantageous for the aggressor, selected or taken advantage of by him in the
commission of the crime.[45] Mere superiority in number is not enough to constitute superior
strength. There must be clear proof of deliberate intent to take advantage of the same. The
prosecution did not adduce evidence on these factual issues.[46] It is unclear whether the
appellants deliberately took advantage of their combined strength to facilitate the commission
of the crime. What Macuibelle saw was just the onset of the attack.
In the absence of any circumstance that would qualify the killing to murder, the
appellants should only be held liable for homicide. Article 249 of the Revised Penal Code
provides:

Article 249. Homicide.Any person who, not falling within the provisions of Article 246 shall
kill another without the attendance of any of the circumstances enumerated in the next
preceding article, shall be deemed guilty of homicide and punished by reclusion temporal.

Reclusion temporal has a range of 12 years and 1 day to 20 years of

imprisonment. Applying the Indeterminate Sentence Law, there being no mitigating or
aggravating circumstance, the maximum term of the penalty shall be imposed in the medium
period[47] of reclusion temporal, ranging from 14 years, 8 months and 1 day to 17 years and
4 months. The minimum term of the penalty shall be taken from the penalty next lower in
degree or prision mayor, in any of its periods, ranging from six (6) years and one (1) day to
twelve (12) years.
As regards the civil indemnity, each of the appellants should be held liable to indemnify
the heirs of the victim in the amount of P50,000.00.
IN VIEW WHEREOF, the decision appealed from is MODIFIED. Appellants GREGORIO
HERMOSA and GABRIEL ABELINDE are declared guilty beyond reasonable doubt of
Homicide for the death of ELEANOR CONDE MALIPOT and sentenced to suffer an
indeterminate sentence of twelve (12) years of prision mayor as minimum, and seventeen (17)
years and four (4) months of reclusion temporal medium as maximum, and to pay P50,000
each for civil indemnity. No special pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez,
JJ., concur.