Same; Same; Public Documents; Where a party fails to make a satisfactory
RULE 128, Section 1 showing of any flaw or irregularity that may cast doubt on the authenticity of
G.R. No. 127240. March 27, 2000
ONG CHIA, petitioner, vs. REPUBLIC OF THE PHILIPPINES and THE
COURT OF APPEALS, respondents.
Naturalization; Evidence; Pleadings and Practice; Formal Offer of
Evidence; Judgments; The rule on formal offer of evidence (Rule 132, §34) is
clearly not applicable to a petition for naturalization; Decisions in naturalization
proceedings are not covered by the rule on res judicata.—Petitioner failed to note
Rule 143 of the Rules of Court which provides that—These rules shall not apply
to land registration, cadastral and election cases, naturalization and insolvency
proceedings, and other cases not herein provided for, except by analogy or in a
suppletory character and whenever practicable and convenient. (Emphasis added)
Prescinding from the above, the rule on formal offer of evidence (Rule 132, §34)
now being invoked by petitioner is clearly not applicable to the present case
involving a petition for naturalization. The only instance when said rules may be
applied by analogy or suppletorily in such cases is when it is “practicable and
convenient.” That is not the case here, since reliance upon the documents
presented by the State for the first time on appeal, in fact, appears to be the more
practical and convenient course of action considering that decisions in
naturalization proceedings are not covered by the rule on res judicata.
Consequently, a final favorable judgment does not preclude the State from later
on moving for a revocation of the grant of naturalization on the basis of the same
documents.
Same; Same; Same; Same; The reason for the rule prohibiting the admission of
evidence which has not been formally offered is to afford the opposite party the
chance to object to their admissibility.—Petitioner claims that as a result of the
failure of the State to present and formally offer its documentary evidence before
the trial court, he was denied the right to object against their authenticity,
effectively depriving him of his fundamental right to procedural due process. We
are not persuaded. Indeed, the reason for the rule prohibiting the admission of
evidence which has not been formally offered is to afford the opposite party the
chance to object to their admissibility. Petitioner cannot claim that he was
deprived of the right to object to the authenticity of the documents submitted to
the appellate court by the State. He could have included his objections, as he, in
fact, did, in the brief he filed with the Court of Appeals.
documents which have been executed under oath, the court may rely on them.—
The Court notes that these documents—namely, the petition in SCN Case No.
031767, petitioner’s marriage contract, the joint affidavit executed by him and
his wife, and petitioner’s income tax returns—are all public documents. As such,
they have been executed under oath. They are thus reliable. Sinoe petitioner failed
to make a satisfactory showing of any flaw or irregularity that may cast doubt on
the authenticity of these documents, it is our conclusion that the appellate court
did not err in relying upon them.
------------------------------------------------------------------------------------------------
This is a petition for review of the decision1 of the Court of Appeals reversing the
decision of the Regional Trial Court, Branch 24, Koronadal, South
Cotabato2 admitting petitioner Ong Chia to Philippine citizenship.
The facts are as follows:
Petitioner was born on January 1, 1923 in Amoy, China. In 1932, as a nine-year
old boy, he arrived at the port of Manila on board the vessel "Angking." Since
then, he has stayed in the Philippines where he found employment and eventually
started his own business, married a Filipina, with whom he had four children. On
July 4, 1989, at the age of 66, he filed a verified petition to be admitted as a
Filipino citizen under C.A. No. 473, otherwise known as the Revised
Naturalization Law, as amended. Petitioner, after stating his qualifications as
required in §2, and lack of the disqualifications enumerated in §3 of the law,
stated —
17. That he has heretofore made (a) petition for citizenship under the provisions
of Letter of Instruction No. 270 with the Special Committee on Naturalization,
Office of the Solicitor General, Manila, docketed as SCN Case No. 031776, but
the same was not acted upon owing to the fact that the said Special Committee
on Naturalization was not reconstituted after the February, 1986 revolution such
that processing of petitions for naturalization by administrative process was
suspended;
During the hearings, petitioner testified as to his qualifications and presented
three witnesses to corroborate his testimony. So impressed was Prosecutor Isaac
Alvero V. Moran with the testimony of petitioner that, upon being asked by the
court whether the State intended to present any witness present any witness
against him, he remarked:
Actually, Your Honor, with the testimony of the petitioner himself which is rather
surprising, in the sense that he seems to be well-versed with the major portion of
the history of the Philippines, so, on our part, we are convinced, Your Honor
Please, that petitioner really deserves to be admitted as a citizen of the
Philippines. And for this reason, we do not wish to present any evidence to
counteract or refute the testimony of the witnesses for the petitioner, as well as
the petitioner himself.3
Accordingly, on August 25, 1999, the trial court granted the petition and admitted
petitioner to Philippine citizenship. The State, however, through the Office of the
Solicitor General, appealed all the names by which he is or had been known; (2)
failed to state all his former placer of residence in violation of C.A. No. 473, §7;
(3) failed to conduct himself in a proper and irreproachable manner during his
entire stay in the Philippines, in violation of §2; (4) has no known lucrative trade
or occupation and his previous incomes have been insufficient or misdeclared,
also in contravention of §2; and (5) failed to support his petition with the
appropriate documentary evidence.4
Annexed to the State's appellant's brief was a copy of a 1977 petition for
naturalization filed by petitioner with the Special Committee on Naturalization
in SCN Case No. 031767,5 in which petitioner stated that in addition to his name
of "Ong Chia," he had likewise been known since childhood as "Loreto Chia
Ong." As petitioner, however, failed to state this other name in his 1989 petition
for naturalization, it was contended that his petition must fail.6 The state also
annexed income tax returns7 allegedly filed by petitioner from 1973 to 1977 to
show that his net income could hardly support himself and his family. To prove
that petitioner failed to conduct himself in a proper and irreproachable manner
during his stay in the Philippines, the State contended that, although petitioner
claimed that he and Ramona Villaruel had been married twice, once before a
judge in 1953, and then again in church in 1977, petitioner actually lived with his
wife without the benefit of marriage from 1953 until they were married in 1977.
It was alleged that petitioner failed to present his 1953 marriage contract, if there
be any. The State also annexed a copy of petitioner's 1977 marriage contract8 and
a Joint-Affidavit9 executed by petitioner and his wife. These documents show that
when petitioner married Ramona Villaruel on February 23, 1977, no marriage
license had been required in accordance with Art. 76 of the Civil Code because
petitioner and Ramona Villaruel had been living together as husband and wife
since 1953 without the benefit of marriage. This, according to the State, belies
his claim that when he started living with his wife in 1953, they had already been
married.
The State also argued that, as shown by petitioner's Immigrant Certificate of
Residence, 10 petitioner resided at "J.M. Basa Street, Iloilo," but he did not
include said address in the petition.
On November 15, 1996, the Court of Appeals rendered its decision which, as
already noted, reversed the trial court and denied petitioner's application for
naturalization. It ruled that due to the importance naturalization cases, the State
is not precluded from raising questions not presented in the lower court and
brought up for the first time on appeal. 11 The appellate court held:
As correctly observed by the Office of the Solicitor General, petitioner Ong Chia
failed to state in this present petition for naturalization his other name, "LORETO
CHIA ONG," which name appeared in his previous application under Letter of
Instruction No. 270. Names and pseudonyms must be stated in the petition for
naturalization and failure to include the same militates against a decision in his
favor. . . This is a mandatory requirement to allow those persons who know
(petitioner) by those other names to come forward and inform the authorities of
any legal objection which might adversely affect his application for citizenship.
Furthermore, Ong Chia failed to disclose in his petition for naturalization that he
formerly resided in "J.M. Basa St., Iloilo" and "Alimodian, Iloilo." Section 7 of
the Revised Naturalization Law requires the applicant to state in his petition "his
present and former places of residence." This requirement is mandatory and
failure of the petitioner to comply with it is fatal to the petition. As explained by
the Court, the reason for the provision is to give the public, as well as the
investigating agencies of the government, upon the publication of the petition, an
opportunity to be informed thereof and voice their objections against the
petitioner. By failing to comply with this provision, the petitioner is depriving the
public and said agencies of such opportunity, thus defeating the purpose of the
law. . .
Ong Chia had not also conducted himself in a proper and irreproachable manner
when he lived-in with his wife for several years, and sired four children out of
wedlock. It has been the consistent ruling that the "applicant's 8-year cohabitation
with his wife without the benefit of clergy and begetting by her three children out
of wedlock is a conduct far from being proper and irreproachable as required by
the Revised Naturalization Law", and therefore disqualifies him from becoming
a citizen of the Philippines by naturalization . . .
Lastly, petitioner Ong Chia's alleged annual income in 1961 of P5,000.00,
exclusive of bonuses, commissions and allowances, is not lucrative income. His
failure to file an income tax return "because he is not liable for income tax yet"
confirms that his income is low. . . "It is not only that the person having the
employment gets enough for his ordinary necessities in life. It must be shown that
the employment gives one an income such that there is an appreciable margin of
his income over expenses as to be able to provide for an adequate support in the
event of unemployment, sickness, or disability to work and thus avoid one's
becoming the object of charity or public charge." . . . Now that they are in their
old age, petitioner Ong Chia and his wife are living on the allowance given to
them by their children. The monthly pension given by the elder children of the
applicant cannot be added to his income to make it lucrative because like bonuses,
commissions and allowances, said pensions are contingent, speculative and
precarious. . .
Hence, this petition based on the following assignment of errors:
I. THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION IN
RULING THAT IN NATURALIZATION CASES, THE APPELLATE COURT
CAN DENY AN APPLICATION FOR PHILIPPINE CITIZENSHIP ON THE
BASIS OF DOCUMENTS NOT PRESENTED BEFORE THE TRIAL COURT
AND NOT FORMING PART OF THE RECORDS OF THE CASE.
II. THE FINDING OF THE COURT OF APPEALS THAT THE PETITIONER
HAS BEEN KNOWN BY SOME OTHER NAME NOT STATED IN HIS
PETITION IS NOT SUPPORTED BY THE EVIDENCE ON RECORD.
III. CONTRARY TO THE FINDING OF THE COURT OF APPEALS, THE
PETITIONER STATED IN HIS PETITION AND ITS ANNEXES HIS
PRESENT AND FORMER PLACES OF RESIDENCE.
IV. THE FINDING OF THE COURT OF APPEALS THAT THE PETITIONER
FAILED TO CONDUCT HIMSELF IN A PROPER AND
IRREPROACHABLE MANNER IS NOT SUPPORTED BY THE EVIDENCE
ON RECORD.
Petitioner's principal contention is that the appellate court erred in considering
the documents which had merely been annexed by the State to its appellant's brief
and, on the basis of which, justified the reversal of the trial court's decision. Not
having been presented and formally offered as evidence, they are mere "scrap(s)
of paper devoid of any evidentiary value," 12 so it was argued, because under Rule
132, §34 of the Revised Rules on Evidence, the court shall consider no evidence
which has not been formally offered.
The contention has no merit. Petitioner failed to note Rule 143 13 of the Rules of
Court which provides that —
These rules shall not apply to land registration, cadastral and election
cases, naturalization and insolvency proceedings, and other cases not herein
provided for, except by analogy or in a suppletory character and whenever
practicable and convenient. (Emphasis added).
Prescinding from the above, the rule on formal offer of evidence (Rule 132, §34)
now being invoked by petitioner is clearly not applicable to the present case
involving a petition for naturalization. The only instance when said rules may be
applied by analogy or suppletorily in such cases is when it is "practicable and
convenient." That is not the case here, since reliance upon the documents
presented by the State for the first time on appeal, in fact, appears to be the more
practical and convenient course of action considering that decisions in
naturalization proceedings are not covered by the rule on res
judicata. 14 Consequently, a final favorable judgment does not preclude the State
from later on moving for a revocation of the grant of naturalization on the basis
of the same documents.
Petitioner claims that as a result of the failure of the State to present and formally
offer its documentary evidence before the trial court, he was denied the right to
object against their authenticity, effectively depriving him of his fundamental
right to procedural due process. 15 We are not persuaded. Indeed, the reason for
the rule prohibiting the admission of evidence which has not been formally
offered is to afford the opposite party the chance to object to their
admissibility. 16 Petitioner cannot claim that he was deprived of the right to object
to the authenticity of the documents submitted to the appellate court by the State.
He could have included his objections, as he, in fact, did, in the brief he filed with
the Court of Appeals. thus:
The authenticity of the alleged petition for naturalization (SCN Case No.
031767) which was supposedly filed by Ong Chia under LOI 270 has not been
established. In fact, the case number of the alleged petition for naturalization. . .
is 031767 while the case number of the petition actually filed by the appellee
is 031776. Thus, said document is totally unreliable and should not be considered with the requirement under the Revised Naturalization Law. On this ground
by the Honorable Court in resolving the instant appeal. 17 alone, the instant petition ought to be denied.1âwphi1.nêt

Indeed, the objection is flimsy as the alleged discrepancy is trivial, and, at most, WHEREFORE, the decision of the Court of Appeals is AFFIRMED and the
can be accounted for as a typographical error on the part of petitioner himself. instant petition is hereby DENIED.
That "SCN Case No. 031767," a copy of which was annexed to the petition, is
the correct case number is confirmed by the Evaluation Sheet 18 of the Special SO ORDERED.
Committee on Naturalization which was also docketed as "SCN Case No.
031767." Other than this, petitioner offered no evidence to disprove the
authenticity of the documents presented by the State.

Furthermore, the Court notes that these documents — namely, the petition in
SCN Case No. 031767, petitioner's marriage contract, the joint affidavit executed
by him and his wife, and petitioner's income tax returns — are all public
documents. As such, they have been executed under oath. They are thus reliable.
Since petitioner failed to make a satisfactory showing of any flaw or irregularity
that may cast doubt on the authenticity of these documents, it is our conclusion
that the appellate court did not err in relying upon them.

One last point. The above discussion would have been enough to dispose of this
case, but to settle all the issues raised, we shall briefly discuss the effect of
petitioner's failure to include the address "J.M. Basa St., Iloilo" in his petition, in
accordance with §7, C.A. No. 473. This address appears on petitioner's Immigrant
Certificate of Residence, a document which forms part of the records as Annex
A of his 1989 petition for naturalization. Petitioner admits that he failed to
mention said address in his petition, but argues that since the Immigrant
Certificate of Residence containing it had been fully published, 19 with the
petition and the other annexes, such publication constitutes substantial
compliance with §7. 20 This is allegedly because the publication effectively
satisfied the objective sought to be achieved by such requirement, i.e., to give
investigating agencies of the government the opportunity to check on the
background of the applicant and prevent suppression of information regarding
any possible misbehavior on his part in any community where he may have lived
at one time or another. 21 It is settled, however, that naturalization laws should be
rigidly enforced and strictly construed in favor of the government and against the
applicant. 22 As noted by the State, C.A. No. 473, §7 clearly provides that the
applicant for naturalization shall set forth in the petition his present and former
places of residence. 23 This provision and the rule of strict application of the law
in naturalization cases defeat petitioner's argument of "substantial compliance"
 G.R. Nos. 140538-39. June 14, 2004.
PEOPLE OF THE PHILIPPINES, appellee, vs. GODOFREDO B. ADOR
and DIOSDADO B. ADOR III, appellants.
Criminal Law; Murder; Evidence; Circumstantial evidence may be the basis
of a conviction so long as the combination of all the circumstances proven
produces a logical conclusion which suffices to establish the guilt of the accused
beyond reasonable doubt; Requisites to sustain the conviction of an accused
through circumstantial evidence.—The rules of evidence allow the courts to rely
on circumstantial evidence to support its conclusion of guilt. It may be the basis
of a conviction so long as the combination of all the circumstances proven
produces a logical conclusion which suffices to establish the guilt of the accused
beyond reasonable doubt. All the circumstances must be consistent with each
other, consistent with the theory that all the accused are guilty of the offense
charged, and at the same time inconsistent with the hypothesis that they are
innocent and with every other possible, rational hypothesis except that of guilt.
The evidence must exclude each and every hypothesis which may be consistent
with their innocence. Also, it should be acted on and weighed with great caution.
Circumstantial evidence which has not been adequately established, much less
corroborated, cannot by itself be the basis of conviction. Thus, for circumstantial
evidence to suffice, (1) there should be more than one circumstance; (2) the facts
from which the inferences are derived are proven; and (3) the combination of all
the circumstances is such as to produce a conviction beyond reasonable doubt.
Same; Same; Same; Guidelines in appreciating circumstantial evidence.—
Guidelines in appreciating circumstantial evidence: (1) it should be acted upon
with caution; (2) all the essential facts must be consistent with the hypothesis of
guilt; (3) the facts must exclude every theory but that of guilt; and (4) the facts
must establish such a certainty of guilt of the accused as to convince the judgment
beyond a reasonable doubt that the accused is the one who committed the offense.
Same; Same; Same; Denial; The doctrine that the defense of denial cannot prevail
over positive identification of the accused must yield to the constitutional
presumption of innocence; The rule in criminal law is firmly entrenched that
verdicts of conviction must be predicated on the strength of the evidence for the
prosecution and not on the weakness of the evidence for the defense.—Both
Diosdado III and Godofredo denied the charges hurled against them. But, while
it is true that alibi and denial are the weakest of the defenses as they can easily be
fabricated, absent such clear and positive identification, the doctrine that the
defense of denial cannot prevail over positive identification of the accused must
yield to the constitutional presumption of innocence. Hence, while denial is
concededly fragile and unstable, the conviction of the accused cannot be based
thereon. The rule in criminal law is firmly entrenched that verdicts of conviction
must be predicated on the strength of the evidence for the prosecution and not on
the weakness of the evidence for the defense.
Same; Same; Same; Motive; Motive alone cannot take the place of proof beyond
reasonable doubt sufficient to overthrow the presumption of innocence.—With
hardly any substantial evidence left, the prosecution likewise played up the feud
between the Adors on one hand and the Chavezes and the Cuyas on the other
hand, and suggested that the Adors had an axe to grind against the Chavezes and
the Cuyas. For sure, motive is not sufficient to support a conviction if there is no
other reliable evidence from which it may reasonably be adduced that the accused
was the malefactor. Motive alone cannot take the place of proof beyond
reasonable doubt sufficient to overthrow the presumption of innocence.
Same; Same; Same; It is hornbook doctrine that suspicions and speculations can
never be the basis of conviction in a criminal case.—The case of the prosecution
has been reduced to nothing but mere suspicions and speculations. It is hornbook
doctrine that suspicions and speculations can never be the basis of conviction in
a criminal case. Courts must ensure that the conviction of the accused rests firmly
on sufficient and competent evidence, and not the results of passion and
prejudice. If the alleged inculpatory facts and circumstances are capable of two
(2) or more explanations, one of which is consistent with the innocence of the
accused, and the other consistent with his guilt, then the evidence is not adequate
to support conviction. The court must acquit the accused because the evidence
does not fulfill the test of moral certainty and is therefore insufficient to support
a judgment of conviction. Conviction must rest on nothing less than a moral
certainty of the guilt of the accused.
Constitutional Law; Confessions; Admissions under custodial investigation made
without the assistance of counsel are barred as evidence; A suspect’s confession,
whether verbal or non-verbal, when taken without the assistance of counsel
without a valid waiver of such assistance regardless of the absence of such
coercion, or the fact that it had been voluntarily given, is inadmissible in
evidence, even if such confession were gospel truth.—The rights of a person
under custodial investigation, including the right to counsel, have already
attached to the Adors, and pursuant to Art. III, Sec. 12(1) and (3), 1987
Constitution, any waiver of these rights should be in writing and undertaken with
the assistance of counsel. Admissions under custodial investigation made without
the assistance of counsel are barred as evidence. The records are bare of any
indication that the accused have waived their right to counsel, hence, any of their
admissions are inadmissible in evidence against them. As we have held, a
suspect’s confession, whether verbal or non-verbal, when taken without the
assistance of counsel without a valid waiver of such assistance regardless of the
absence of such coercion, or the fact that it had been voluntarily given, is
inadmissible in evidence, even if such confession were gospel truth. People vs.
Ador, 432 SCRA 1, G.R. Nos. 140538-39 June 14, 2004
The quiescence of the fading day was shattered by bursts of gunfire, startling the
otherwise tranquil but sanguine folks of Pacol, Naga City.As the fusillade of shots
ceased and the wisp of smoke cleared, frolicking promenaders stumbled upon
Ompong Chavez who was gasping his last, clutching his intestines which had
spewed out from his bloodied stomach.He did not in fact reach the hospital
alive.A breath away, Abe Cuya lay lifeless on the pavement.He died on the
spot.For the twinned deaths, the Adors, six (6) of them, were haled to court.
In two (2) separate informations,1 Diosdado Sr.,2 Diosdado Jr., Diosdado III,
Godofredo, Rosalino and Allan, all surnamed Ador, were charged with the
murder of Absalon Abe S. Cuya III and Rodolfo Ompong S. Chavez.The
Informations in Crim. Cases Nos.97-6815 and 97-6816 identically
read:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
That on or about March 10, 1997, in the City of Naga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating together and mutually helping one another, with intent to kill, with
treachery and the aid of armed men, did then and there willfully, unlawfully and
feloniously shoot ABSALON ABE CUYA III (RODOLFO OMPO CHAVEZ y
SAN ANDRES3 for Crim. Case No. 97-6816) with firearms, inflicting upon him
multiple and mortal gunshot wounds which caused his death, to the damage and
prejudice of his heirs.
With the aggravating circumstance of evident premeditation and nighttime.
CONTRARY TO LAW.
However, only four (4) of the six (6) Adors, namely, Diosdado Sr., Godofredo,
Rosalino and Allan, were taken into custody.The two (2), Diosdado Jr. and
Diosdado III, remained at large.Trial thus proceeded only against Diosdado Sr.,
Godofredo, Rosalino and Allan who all pleaded not guilty.Diosdado Sr. is the
father of Diosdado Jr., Diosdado III and Godofredo, while Rosalino is the father
of Allan.Diosdado Sr. and Rosalino are brothers.4
In its effort to secure the conviction of the accused, the prosecution presented a
total of sixteen (16) witnesses: Mercy Beria, Larry Cado, Medico-Legal Officer
of Naga City Dr. Joel S. Jurado, Police Inspector Ma. Julieta Razonable, SPO1
Benjamin Barbosa, SPO3 Augusto Basagre, Major Ernesto Idian, Inspector
Reynaldo F. Fulgar, SPO1 Noli Reyes Sol, SPO3 Eduardo C. Bathan, Inspector
Vicente C. Lauta, Ernani Castillo, PO3 Augusto I. Nepomuceno, Absalon Cuya
Sr., Efren Chavez and Pablo Calsis.
From the evidence of the prosecution, it appears that on March 10, 1997, at
around seven-thirty in the evening, while Mercy Beria, Larry Cado and some
eleven (11) others were leisurely walking along Kilometer 11 on their way to
Zone 1, Kilometer 10, Pacol, Naga City, to attend a wedding anniversary, they
heard several gunshots.Shortly after, they met a certain Pablito Umali who told
them that Ompong Chavez had been shot.They ran to Chavez straight off and saw
him already lying on the ground, about 1 meters away from a lighted electric post,
holding on to his intestines which were starting to come out.Beria shook Chavez
and asked him what had happened.Chavez replied tinambangan kami na
Ador (We were ambushed by the Adors) and requested that he be brought to the
hospital as he was dying.About eight (8) meters from where Chavez was, in a
dark spot, lay Abe Cuya, dead.5
Upon learning of the shooting incident through their radio communication, SPO1
Benjamin Barbosa, together with PO2 Alexander Diaz, immediately proceeded
to the crime scene to conduct an investigation.SPO3 Eduardo Bathan and SPO1
Wilfredo Fernandez, among others, were already there.6 SPO1 Barbosa collected
some pieces of evidence, took some pictures and made some sketches. 7 SPO1
Fernandez on the other hand interviewed one Cresenciana Mendoza in her house
which was nearby, and when he heard people shout that Chavez was still alive,
he brought Chavez to the hospital but the latter expired on the way. 8
That same evening, upon being informed that the Adors had a long-standing
grudge against the Cuyas, SPO1 Barbosa sought the help of then Barangay
Captain Josue Perez to accompany him to the residence of the Adors.They arrived
at the Adors at around ten oclock that evening and spoke with their patriarch,
Diosdado Ador Sr. SPO1 Barbosa looked for the other male members of the Ador
family but was told by Diosdado Sr. that they were already asleep.Diosdado Sr.
nevertheless promised to present them the following day.9
The following morning, March 11, 1997, Barangay Captain Perez accompanied
the Adors, namely, Diosdado Sr., Diosdado III, Godofredo, Rosalino, Allan and
Reynaldo, to SPO1 Barbosa at the PNP Central Police Headquarters.The Adors
were informed of their constitutional rights to remain silent and to choose their
own counsel.They were then brought to the PNP Crime Laboratory at the
Provincial Headquarters and subjected to paraffin tests.10 On the way to the crime
laboratory, Godofredo told his police escort that he had been entrusted with a
handgun which he kept in his residence.11 The information was relayed to Major
Ernesto Idian, then Deputy Chief of Police of Naga City, who ordered PO3
Augusto I. Nepomuceno to accompany him in recovering the gun because
Godofredo said that he would turn in the gun only to PO3 Nepomuceno.Thus,
Major Idian, PO3 Nepomuceno and some others accompanied Godofredo to the
latters residence.
Upon reaching the Ador residence, Godofredo, together with PO3 Nepomuceno,
went to their backyard, retrieved the gun from under a fallen coconut trunk and
turned it in to the latter.Godofredo allegedly told the police that he fired the said
gun outside their house on the night of March 10 after he heard several
gunshots.12 PO3 Nepomuceno identified the gun as a caliber .38 paltik handgun
which had no serial number.13 PO3 Nepomuceno then turned over the handgun
to Major Idian14 who likewise identified it as a .38 caliber revolver.Major Idian
returned the handgun to PO3 Nepomuceno for ballistic and paraffin
examination.15 Thereafter, PO3 Nepomuceno placed his initials on the gun and
put it in his private locker while preparing the documents for the examinations
and the possible filing of a case for Illegal Possession of Firearm.16
Also, on the same day, March 11, 1997, Dr. Joel S. Jurado, Medico-Legal Officer
of Naga City, conducted an autopsy on the bodies of Chavez and Cuya.Based on
the autopsy reports, Dr. Jurado testified that Cuya sustained five (5) gunshot
wounds and died from cardio-pulmonary arrest, massive intra-thoracic, intra-
abdominal, intra-cranial hemorrhage secondary to multiple gunshot wounds
penetrating the heart, brain, lungs and digestive tract.17 Chavez on the other hand
had three (3) gunshot wounds and died from traumatic shock and massive intra-
abdominal hemorrhage secondary to multiple gunshot wounds penetrating the
right kidney and the internal abdominal organs.18 Dr. Jurado further testified that
that he recovered a slug from Cuyas head three (3) days after he conducted the
autopsy - after Cuyas relatives called his attention to a protruding mass in Cuyas
head.Thus, he had Cuyas cadaver sent back to the funeral parlor, opened it and
was able to extract a deformed .38 caliber slug which he thereafter submitted to
the City Prosecutors Office.19
Police Inspector Reynaldo Fulgar, Chief of the Firearm Identification Section of
the PNP Crime Laboratory, Camp Ola, Legaspi City, testified that based on the
ballistic examination he conducted on the bullets submitted to his office, the .38
caliber slug recovered from Cuyas head matched the three (3) .38 caliber test
bullets which were test-fired from the suspected firearm surrendered by
Godofredo.He however averred that the .38 caliber bullets were actually fired
from a .357 Smith and Wesson Magnum homemade revolver without serial
number, and not from a .38 caliber revolver.20
The paraffin casts taken from the Adors were also transmitted to the PNP Crime
Laboratory Services for examination and yielded the presence of gunpowder
nitrates, thus
(1) Diosdado A. Ador both hands, positive;
(2) Diosdado B. Ador III right hand, positive; left hand, negative;
(3) Godofredo B. Ador right hand, positive; left hand, negative;
(4) Rosalino A. Ador both hands, positive;
(5) Reynaldo T. Ador both hands, negative;21
(6) Allan T. Ador both hands, positive.22
Absalon Cuya Sr., father of deceased Cuya III, said that the killing of his son was
driven by the long-standing feud between the Adors and his family.He said that
Diosdado Jr. had earlier accused his other son Liberato of frustrated homicide for
allegedly stabbing him (Diosdado Jr.). 23 Then, Adelina, a daughter of Diosdado
Sr., filed a case for abduction with multiple rape against him, Absalon III, Rayne
and Josephine, all surnamed Cuya, after the romantic relationship between
Adelina and his deceased son Absalon III turned sour.24 He also presented official
receipts of the funeral and burial expenses which amounted to P10,230.00.25 ςrνll
Efren Chavez, brother of deceased Chavez, likewise spoke of the animosity
between the Chavez and the Ador families.He produced a certification from the
PNP Naga City Police Station that on February 17, 1997, a blotter was entered in
the Daily Record of Events showing that deceased Chavez reported a certain
Ricardo Ador who while under the influence of liquor caused him physical
injury.26 The witness likewise presented an official receipt showing that the
family spent P3,500.00 for the funeral of the deceased Chavez.27 After presenting
Chavez, the prosecution rested its case.
On April 7, 1998, the four (4) accused filed a demurrer to evidence for utter lack
of evidence.28 On May 13, 1998, the trial court dismissed the cases against
Diosdado Sr., Rosalino and Allan but denied the demurrer to evidence against
Godofredo
WHEREFORE, this Court finds the demurrer to evidence to be justified for the
accused Diosdado A. Ador, Allan T. Ador and Rosalino Ador, hence, the same
is hereby granted insofar as these accused are concerned.Said accused therefore,
namely: Diosdado A. Ador, Allan T. Ador and Rosalino Ador are ACQUITTED
in Crim. Cases Nos. 97-6815 and 97-6816.The bailbonds posted for their
provisional liberty are hereby cancelled.
Trial of the case insofar as Godofredo B. Ador is concerned shall proceed.
SO ORDERED.29
Thus, trial proceeded against Godofredo.
For his defense, Godofredo denied any participation in the killings of Cuya and
Chavez.He said that on March 10, 1997, at aroundseven oclock in the evening,
he heard several gunshots while he was having dinner with his wife and four (4)
children in their house in Pacol,NagaCity.Since his wife advised him not to go
out anymore, he slept after dinner.The following day, while he was gathering pili
nuts, his long-time friend Dominador Bautista arrived and asked him to go down
from the tree.Bautista wanted to borrow money and on his way to see him, found
a gun by the footpath.Bautista gave the gun to him.It was his first time to hold a
gun.He tried it out and fired three (3) times.After firing the gun, he removed the
empty shells from its chambers and threw them away.He then wrapped the gun
with plastic and hid it under a coconut trunk.Bautista left when he told him that
he had no money.He then continued to gather pili nuts until Major Idian and three
(3) other policemen came.
Godofredos father told him that they were being suspected of killing Chavez and
Cuya the night before.Thus, they went to the provincial headquarters, were
subjected to paraffin testing and made to sign a blank bond paper.After that, they
went back to the central police station.At the central police station, Godofredo
narrated to a certain Calabia that that morning, his friend Bautista found a gun
along the road and gave it to him.He hid the gun under a coconut trunk.Calabia
relayed the information to Major Idian who directed PO3 Nepomuceno to go with
Godofredo to get the gun.Godofredo led PO3 Nepomuceno to where he hid the
gun, retrieved it and handed it to the latter.They then returned to the police
headquarters where he was jailed.He asserted that the gun presented in court is
different from the gun he surrendered to the police. 30
Bautista corroborated Godofredos story.He testified that he found the gun which
Godofredo yielded to PO3 Nepomuceno.He said that he was on his way to see
Godofredo to borrow money when he chanced upon the handgun on the
pathway.He gave the gun to Godofredo and the latter tested it by pulling its
trigger.After firing the gun, Godofredo removed the empty shells and threw
them.Godofredo then wrapped the gun with plastic and hid it under a fallen
coconut trunk.31 ςrνll
Meanwhile, Diosdado Jr. was arrested on October 9, 1998, at Barangay Doa,
Orani,Bataan, and committed to the Naga City Jail on November 17, 1998, while
Diosdado III surrendered to the court and was committed to the same city jail on
November 22, 1998.On November 23, 1998, both Diosdado Jr. and Diosdado III
were arraigned and entered a plea of not guilty.Hence, trial against them
commenced and proceeded jointly with the case of the remaining accused,
Godofredo.
The prosecution presented Pablo Calsis32 as a witness against Diosdado Jr. and
Diosdado III.Calsis testified that on March 10, 1997, at around 7:30 in the
evening, he dropped by the house of Cresenciana Mendoza whom he fondly
called Lola Kising at Kilometer 10, Pacol, Naga City, before going home from
work.After asking permission from her to go home and while about to urinate
outside her house, he heard several gunshots.He ducked by a sineguelas tree at a
nearby flower plantation.As he was about to stand up, he saw Disodado Jr.,
Diosdado III, Godofredo and another unidentified man run away.Godofredo was
carrying a short firearm while Diosdado Jr. had a long firearm.33 He saw Chavez
and Cuya lying on the road.Chavez was about five (5) meters away from where
he stood while Cuya was ten (10) meters away.The place was illuminated by a
bright light from an electric post.There were no other people around.Calsis ran
away for fear that he might be identified by the assailants.He heard Chavez
mumbling but shirked nevertheless.34 ςrνll
Calsis narrated to Absalon Cuya Sr. what he saw only after about one (1) year
and nine (9) months.Fear struck him.35 He maintained that he knew the assailants
because he and his wife lived in the house of Lola Kising after they got
married.36 Immense fear prevented him from attending to Chavez, even while he
heard him murmuring, and from informing the families of the victims of the
incident that very same night.He was about to tell the Chavez family the
following morning but was counseled by his Lola Bading, the sister of his Lola
Kising, against getting involved in the case.37 Calsis and his family left their
residence in Pacol one (1) month after the incident because he was afraid the
assailants might have identified him.38 Even Lola Kising left her residence two
(2) months after the incident.39 It was only after he learned from Absalon Cuya
Sr.that the trial court dismissed the cases for lack of evidence insofar as some of
the original accused were concerned that he took pity on the respective families
of the victims who have failed to get justice for the death of their loved ones. 40
In defense, Diosdado Jr. testified that on March 10, 1997, he was in Marikina
City working as a warehouseman and timekeeper of the Consuelo Builders
Corporation.He was there the whole time from February 15, 1997, until March
24, 1997.41 Pablo Aspe, a co-worker of Diosdado Jr., corroborated the latters
testimony.He said that on February 15, 1997, he and Diosdado Jr. left Pacol, Naga
City, together to work in Consuelo Construction in Marikina City.They were with
each other in Marikina City the whole time from February 15, 1997, until he
(Aspe) went home to Naga City on March 22, 1997.While in Marikina City, they
resided and slept together in their barracks at the construction site. 42
Diosdado III also took the witness stand.On March 10, 1997, at around seven
oclock in the evening, he was at their house at Zone 1, Pacol, Naga City, watching
television with his parents and cousins Reynaldo and Allan when they heard
gunshots.They ignored the gunshots, continued watching television and slept at
eight oclock.The following day, at around six oclock in the morning, while he
was fetching water, four (4) policemen arrived at their house and talked to his
father.Thereafter, his father called him, his brother Godofredo, uncle Rosalino
and cousins Allan and Reynaldo.The policemen then requested all of them to go
to the PNP Central Police Headquarters for investigation regarding the killings
of Chavez and Cuya.Upon reaching the police headquarters, they were
interviewed by the media and afterwards brought to the provincial headquarters
where they were subjected to paraffin tests.They were then brought back to the
Central Police Headquarters and later allowed to go back home to Pacol.
Then, sometime in October, 1997, his father was arrested by the police.Diosdado
III was at their residence when his father was picked up.Only his father was taken
by the police.He continued to reside in their house until April, 1998, when he
transferred to Sagurong, San Miguel, Tabaco, Albay, to work as a fisherman.On
November 21, 1998, he received a letter from his father telling him to come
home.Thus, he went home the following day.On November 23, 1998, he
surrendered to the court.43
The defense also presented Barangay Captain Josue Perez and an uncle of
Diosdado Jr. and Disodado III, Jaime Bobiles.Perez testified that he was the
barangay captain of Pacol from 1982 until May, 1997.In 1996, Cresenciana
Mendoza left their barangay permanently to live with her children in Manila
because she was sickly and alone in her house.He said that Mendoza never came
back.He does not know any Pablo Calsis and the latter could not have talked to
Mendoza on March 10, 1997, because at that time, Mendoza was not there and
her house was already abandoned.44 Similarly, Bobiles confirmed the testimony
that Diosdado III worked as a fisherman in Tabaco and stayed in his residence
from May 1, 1998, until November 1998 when Diosdado III received a letter from
his father and had to go home.45
In rebuttal however, prosecution witness SPO1 Fernandez asserted that he
interviewed Cresenciana Mendoza that fateful night of March 10, 1997. 46 After
the rebuttal witness was presented, the cases were finally submitted for
decision.47
On August 2, 1999, the trial court held that a chain of circumstances x x x lead
to a sound and logical conclusion that indeed the accused (Diosdado III and
Godofredo) committed the offense charged48 and as such rendered judgment
WHEREFORE, premises considered, this court finds the accused Godofredo B.
Ador and Diosdado B. Ador III GUILTY beyond reasonable doubt of the crime
of MURDER, defined and penalized under the provisions of Article 248 of the
Revised Penal Code, as amended by Republic Act 7659 in Criminal Cases Nos.
97-6815 and 97-6816, hereby sentences the said accused Godofredo B. Ador and
Diosdado B. Ador III to suffer the penalty of RECLUSION PERPETUA in
Criminal Case No. 97-6815; RECLUSION PERPETUA in Criminal Case No.
97-6816, to pay the heirs of Absalon Abe Cuya III P25,000 each by way of actual
damages andP50,000 in each criminal case by way of indemnity.To pay the heirs
of Rodolfo Ompong Chavez the sum of P50,000 in each criminal case by way of
indemnity, such accessory penalties as provided for by law and to pay the cost.For
insufficiency of the prosecution to prove the guilt of the accused Diosdado B.
Ador, Jr. beyond reasonable doubt, he is hereby ACQUITTED in Crim. Cases
Nos. 97-6815 and 97-6816.
The Jail Warden of the Naga City District Jail is hereby ordered to forthwith
release from its custody the accused Diosdado B. Ador, Jr., unless his further
detention is warranted by any other legal cause or causes.
SO ORDERED.49
Hence, this joint appeal interposed by Disodado III and Godofredo.They maintain
that the trial court gravely erred in convicting them of murder based on
circumstantial evidence.The testimony of prosecution witness Pablo Calsis that
he saw them running away from the scene of the crime was concocted.The
handgun turned in by Godofredo was not the same gun presented by the
prosecution during the trial.The unusual discovery of a slug from the head of the
deceased - three (3) days after the autopsy was conducted and after the cadaver
was turned over to the family of the victim - was quite doubtful.Even the
supposed dying declaration of the victim specifically pointed to neither Diosdado
III nor Godofredo.And, the trial court erred in admitting in evidence those taken
against them in violation of their constitutional rights to counsel during custodial
investigation.50
The rules of evidence allow the courts to rely on circumstantial evidence to
support its conclusion of guilt.51 It may be the basis of a conviction so long as the
combination of all the circumstances proven produces a logical conclusion which
suffices to establish the guilt of the accused beyond reasonable doubt. 52 All the
circumstances must be consistent with each other, consistent with the theory that
all the accused are guilty of the offense charged, and at the same time inconsistent
with the hypothesis that they are innocent and with every other possible, rational
hypothesis except that of guilt.53 The evidence must exclude each and every
hypothesis which may be consistent with their innocence. 54 Also, it should be
acted on and weighed with great caution.55 Circumstantial evidence which has
not been adequately established, much less corroborated, cannot by itself be the
basis of conviction.56
Thus, for circumstantial evidence to suffice, (1) there should be more than one
circumstance; (2) the facts from which the inferences are derived are proven; and
(3) the combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt.57 Like an ornate tapestry created out of interwoven
fibers which cannot be plucked out and assayed a strand at a time apart from the
others, the circumstances proved should constitute an unbroken chain which
leads to one fair and reasonable conclusion that the accused, to the exclusion of
all others, is guilty beyond reasonable doubt.58 The test to determine whether or
not the circumstantial evidence on record are sufficient to convict the accused is
that the series of the circumstances proved must be consistent with the guilt of
the accused and inconsistent with his innocence.59 Accordingly, we have set
guidelines in appreciating circumstantial evidence:(1) it should be acted upon
with caution; (2) all the essential facts must be consistent with the hypothesis of
guilt; (3) the facts must exclude every theory but that of guilt; and (4) the facts
must establish such a certainty of guilt of the accused as to convince the judgment
beyond a reasonable doubt that the accused is the one who committed the
offense.60
Measured against the guidelines set, we cannot uphold the conviction of the
accused based on the circumstantial evidence presented.
The first circumstance which the prosecution sought to prove is that the accused
were supposedly seen fleeing from the locus criminis, armed with their respective
weapons.Thus, the trial court, gleaning from the evidence presented, found that
[w]hen about to stand, Calsis saw Godofredo B. Ador, Diosdado B. Ador, Jr. and
Diosdado B. Ador III, and a person going to the direction of the house of the
Adors which is about 500 meters away.61 In fact, prosecution witness Calsis
allegedly even saw Diosdado Jr. carrying a long firearm but x x x could not
determine what kind of gun it was.62 However, the trial court acquitted Diosdado
Jr.But only rightly so.For, Calsis had difficulty in identifying the Adors
notwithstanding his assertion that he knew and saw them personally.We defer to
his direct examination
ATTY. TERBIO (Private Prosecutor) :
Q.You said you recognized the persons running, could you tell us their
names?
PABLO CALSIS:
A.Yes sir.
Q.Name them?
A.Godofredo Ador, Jr., Sadang III.
Q.How about the others?
A.I could not tell his name but if I see him I could identify him.
Q.The 4 persons whom you saw that night, if they are present in court,
please point them out?
A.Yes sir.
Q.Point particularly Godofredo Ador, Jr.?
 A.(Witness pointed or tapped the shoulder of a person inside the
courtroom who answered by the name Diosdado Ador, Jr.)
Q.How about this Sadang III?
A.(Witness tapped the shoulder of a man who answered by the name
of Diosdado Ador III.)
Q.Likewise, point to the third person?
A.(Witness pointed to a man)
COURT:
Delete that portion from the record, he is not on trial.
ATTY TERBIO:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Q.You said you saw 4 persons, is the fourth one inside the courtroom?
A.None sir.
Q.But if you saw that person, will you be able to recognize him?
A.Yes sir.
Q.Why do you know these persons whom you just tapped the shoulder?
x x xx x xx x x
A.I know these persons having lived in the house of Lola Kising.
Q.How far?
A.Around 100 meters.
Q.On the said date and time and place, you said you saw them running,
how far were you from them?
A.Around 10 meters. (Emphases supplied)63
The testimony of Calsis, if at all, could hardly be used against Diosdado III whom
he miserably failed to positively identify during trial.In fact, the acquittal of
Diosdado Jr. by the trial court renders the entire testimony of Calsis in serious
doubt.Calsis was presented to positively identify the assailants who were
supposedly personally known to him and were just ten (10) meters away from
him.It puzzles us no end why he cannot even identify the Adors in open court.
Thus, despite Calsis assertion that Diosdado Jr. was one of the assailants, the trial
court doubted him and gave credence to the alibi of Diosdado Jr. that the latter
was in Nangka, Marikina, when the killings took place.The trial court favored the
unbiased testimony of Aspe who said that Diosdado Jr. worked as a timekeeper
and warehouseman with him at the Consuelo Construction at Nangka, Marikina,
from February 15, 1997, until March 22, 1997, and went home to Pacol only on
May 27, 1997.This ruling is strengthened by the fact that on the morning
following the killings, all the male members of the Ador family were brought to
the police headquarters for paraffin examination and Diosdado Jr. was not among
them.64 We thus respect the finding of the trial court that indeed Diosdado Jr. was
not at the scene of the crime absent any indication that the lower court overlooked
some facts or circumstances which if considered would alter the outcome of the
case.65
While it is true that the courts are not bound to accept or reject an entire
testimony, and may believe one part and disbelieve another, 66 our Constitution
and the law mandate that all doubts must be resolved in favor of the
accused.Calsis committed an obvious blunder in identifying the supposed
assailants which this Court cannot simply let go.On the contrary, it creates
reasonable doubt in our minds if Calcis really saw the persons he allegedly saw
or if he was even where he said he was that evening.For, it is elementary that the
positive identification of the accused is crucial in establishing his guilt beyond
reasonable doubt.That is wanting in the instant case.
What is more, Calsis asseverations, at the outset, could no longer be used against
Godofredo since both the prosecution and the defense have already rested and the
case against Godofredo was already submitted for decision when Calsis was
presented.67 Neither can they still be used against Diosdado Jr. who was already
acquitted by the trial court.
Both Diosdado III and Godofredo denied the charges hurled against them.But,
while it is true that alibi and denial are the weakest of the defenses as they can
easily be fabricated,68 absent such clear and positive identification, the doctrine
that the defense of denial cannot prevail over positive identification of the
accused must yield to the constitutional presumption of innocence. 69 Hence,
while denial is concededly fragile and unstable, the conviction of the accused
cannot be based thereon.70 The rule in criminal law is firmly entrenched that
verdicts of conviction must be predicated on the strength of the evidence for the
prosecution and not on the weakness of the evidence for the defense. 71 ςrνll
The second circumstance is the handgun turned in by Godofredo.But this was
bungled by the prosecution.Major Idian, Deputy Chief of Police of the Naga City
Police Station, to whom the handgun was turned over after Godofredo
surrendered it, identified it as a caliber .38 revolver, thus
ATTY TERBIO (Private Prosecutor) : What kind of firearm was it?
MAJOR IDIAN: A.Revolver handgun, caliber .38 with 6 rounds
ammunition.
Q.What is the caliber?
A..38 caliber.72
Similarly, PO3 Nepomuceno who then had been with the PNP for eight
(8) years already and to whom Godofredo turned in the handgun,
likewise identified it as a caliber .38, thus
ATTY TERBIO (Private Prosecutor) :
Q.What is the caliber of that gun?
PO3 NEPOMUCENO:
A..38 caliber.73
However, Insp. Fulgar, Chief of the Firearm Identification Section of the PNP
Crime Laboratory, testified that [t]he indorsement coming from the City
Prosecutors Office x x x alleged that the .38 caliber live bullet was fired from a
.38 caliber revolver.But our office found out that the firearm was not a .38 caliber
revolver but a .357 caliber revolver.74
Could it be that the handgun was replaced before it was turned over to the PNP
Crime Laboratory? While the prosecution traced the trail of police officers who
at every stage held the gun supposedly recovered from Godofredo, it never
clarified this discrepancy which is quite glaring to ignore.It is difficult to believe
that a Deputy Chief of Police and a police officer of eight (8) years will both
mistake a .357 caliber for a .38 caliber handgun.Likewise, a Chief of the Firearm
Identification Section of the PNP Crime Laboratory cannot be presumed not to
know the difference between the two (2) handguns.Suffice it to say that the
prosecution failed to clear up the variance and for this Court to suggest an
explanation would be to venture into the realm of pure speculation, conjecture
and guesswork.Thus, faced with the obvious disparity in the suspected firearm
used in the crime and that which was turned over by Godofredo, his declaration
that the handgun presented in court was different from the gun he gave to the
police deserves serious, if not sole consideration.
Consequently, even the third circumstance, the .38 caliber slug supposedly
recovered from the head of the victim three (3) days after the autopsy was
conducted loses evidentiary value as its source is now highly questionable.It has
become uncertain whether the deformed slug was fired from the .38 caliber
revolver turned in by Godofredo or from a .357 caliber handgun as attested to by
the Chief of the Firearm Identification Section of the PNP Crime Laboratory.
Neither can this Court rely on the dying declaration of the dying Chavez nor on
the results of the paraffin tests to convict either Diosdado III or Godofredo or
both.To refute these, we need not go far and beyond the 13 May 1998 Order of
the trial court partially granting the demurrer to evidence filed by the accused
The only direct evidence introduced by the prosecution is the testimony of Mercy
Beria, that she heard Rodolfo Ompong Chavez say tinambangan kami na Ador
(We were ambushed by the Adors) .Sad to say, no specific name was ever
mentioned by the witness.Neither was she able to tell how many (persons) Adors
were involved.This testimony if it will be given credence may inculpate any
person with the family name Ador as assailant.The prosecution therefore was not
able to establish with moral certainty as to who of the Adors were perpetrators of
the offense x x x x Paraffin tests are not conclusive evidence that indeed a person
has fired a gun.
The fact that the accused-appellants tested positive of gunpowder nitrates does
not conclusively show that they fired the murder weapon, or a gun for that matter,
for such forensic evidence should be taken only as an indication of possibility or
even of probability, but not of infallibility, since nitrates are also admittedly
found in substances other than gunpowder. (People v. Abellarosa, G.R. No.
121195, 27 November 1996; People v. de Guzman, 250 SCRA 118; People v.
Nitcha, 240 SCRA 283)75
Thus, while a dying declaration may be admissible in evidence, it must identify
with certainty the assailant.Otherwise, it loses its significance.Also, while a
paraffin test could establish the presence or absence of nitrates on the hand, it
cannot establish that the source of the nitrates was the discharge of firearms a
person who tests positive may have handled one or more substances with the
same positive reaction for nitrates such as explosives, fireworks, fertilizers,
pharmaceuticals, tobacco and leguminous plants.76 In People v. Melchor, 77 this
Court acquitted the accused despite the presence of gunpowder nitrates on his
hands
[S]cientific experts concur in the view that the result of a paraffin test is not
conclusive.While it can establish the presence of nitrates or nitrites on the hand,
it does not always indubitably show that said nitrates or nitrites were caused by
the discharge of firearm.The person tested may have handled one or more of a
number of substances which give the same positive reaction for nitrates or
nitrites, such as explosives, fireworks, pharmaceuticals and leguminous plants
such as peas, beans and alfalfa.A person who uses tobacco may also have nitrate
or nitrite deposits on his hands since these substances are present in the products
of combustion of tobacco.The presence of nitrates or nitrites, therefore, should
be taken only as an indication of a possibility but not of infallibility that the
person tested has fired a gun.
In fine, the admissions made by Godofredo to Major Idian and PO3 Nepomuceno
including the gun in question cannot be considered in evidence against him
without violating his constitutional right to counsel.Godofredo was already under
custodial investigation when he made his admissions and surrendered the gun to
the police authorities.The police had already begun to focus on the Adors and
were carrying out a process of interrogations that was lending itself to eliciting
incriminating statements and evidence: the police went to the Ador residence that
same evening upon being informed that the Adors had a long-standing grudge
against the Cuyas; the following day, all the male members of the Ador family
were told to go to the police station; the police was also informed of the dying
declaration of deceased Chavez pointing to the Adors as the assailants; the Adors
were all subjected to paraffin examination; and, there were no other suspects as
the police was not considering any other person or group of persons.The
investigation thus was no longer a general inquiry into an unsolved crime as the
Adors were already being held as suspects for the killings of Cuya and Chavez.
Consequently, the rights of a person under custodial investigation, including the
right to counsel, have already attached to the Adors, and pursuant to Art. III, Sec.
12(1) and (3), 1987 Constitution, any waiver of these rights should be in writing
and undertaken with the assistance of counsel.Admissions under custodial
investigation made without the assistance of counsel are barred as
evidence.78 The records are bare of any indication that the accused have waived
their right to counsel, hence, any of their admissions are inadmissible in evidence
against them.As we have held, a suspects confession, whether verbal or non-
verbal, when taken without the assistance of counsel without a valid waiver of
such assistance regardless of the absence of such coercion, or the fact that it had
been voluntarily given, is inadmissible in evidence, even if such confession were
gospel truth.79 Thus, in Aballe v. People,80 the death weapon, a four-inch kitchen
knife, which was found after the accused brought the police to his house and
pointed to them the pot where he had concealed it, was barred from admission as
it was discovered as a consequence of an uncounseled extrajudicial confession.
With hardly any substantial evidence left, the prosecution likewise played up the
feud between the Adors on one hand and the Chavezes and the Cuyas on the other
hand, and suggested that the Adors had an axe to grind against the Chavezes and
the Cuyas.For sure, motive is not sufficient to support a conviction if there is no
other reliable evidence from which it may reasonably be adduced that the accused
was the malefactor.81 Motive alone cannot take the place of proof beyond
reasonable doubt sufficient to overthrow the presumption of innocence. 82 ςrνll
All told, contrary to the pronouncements of the trial court, we cannot rest easy in
convicting the two (2) accused based on circumstantial evidence.For, the pieces
of the said circumstantial evidence presented do not inexorably lead to the
conclusion that they are guilty.83 The prosecution witness failed to identify the
accused in court.A cloud of doubt continues to hover over the gun used and the
slug recovered.The dying declaration and paraffin examination remain
unreliable. Godofredos uncounseled admissions including the gun he turned in
are barred as evidence.And, the supposed motive of the accused is simply
insufficient.Plainly, the facts from which the inference that the accused
committed the crime were not proven.Accordingly, the guilt of the accused
cannot be established, more so to a moral certainty.It is when evidence is purely
circumstantial that the prosecution is much more obligated to rely on the strength
of its own case and not on the weakness of the defense, and that conviction must
rest on nothing less than moral certainty.84
Consequently, the case of the prosecution has been reduced to nothing but mere
suspicions and speculations.It is hornbook doctrine that suspicions and
speculations can never be the basis of conviction in a criminal case.85 Courts must
ensure that the conviction of the accused rests firmly on sufficient and competent
evidence, and not the results of passion and prejudice.86 If the alleged inculpatory
facts and circumstances are capable of two (2) or more explanations, one of which
is consistent with the innocence of the accused, and the other consistent with his
guilt, then the evidence is not adequate to support conviction.87 The court must
acquit the accused because the evidence does not fulfill the test of moral certainty
and is therefore insufficient to support a judgment of conviction. 88 Conviction
must rest on nothing less than a moral certainty of the guilt of the accused. 89 The
overriding consideration is not whether the court doubts the innocence of the
accused but whether it entertains a reasonable doubt as to his guilt. 90 It is thus
apropos to repeat the doctrine that an accusation is not, according to the
fundamental law, synonymous with guilt the prosecution must overthrow the
presumption of innocence with proof of guilt beyond reasonable doubt.The
prosecution has failed to discharge its burden.Accordingly, we have to acquit.

IN VIEW WHEREOF, the Decision of the Regional Trial Court of Naga City,
Br. 25, in Crim. Cases Nos. 97-6815 and 97-6816 dated August 2, 1999, finding
accused-appellants Godofredo B. Ador and Diosdado B. Ador III guilty beyond
reasonable doubt of two (2) counts of murder and imposing on them the penalty
of reclusion perpetua, is hereby REVERSED and SET ASIDE.Accused-
appellants Godofredo B. Ador and Diosdado B. Ador III are ACQUITTED on
reasonable doubt and their IMMEDIATE RELEASE is hereby ORDERED
unless they are being held for some other legal cause.

SO ORDERED.

Note.—Well-settled is the rule that motive can be essential to conviction where

the evidence on the commission of the crime is circumstantial. (People vs. Orcula,
Sr., 335 SCRA 129 [2000]) People vs. Ador, 432 SCRA 1, G.R. Nos. 140538-39
June 14, 2004
G.R. No. 140679. January 14, 2004
PEOPLE OF THE PHILIPPINES, appellee, vs. MANNY A. DOMINGCIL,
appellant.
Criminal Law; Dangerous Drugs Act; Evidence; Witnesses; The evaluation by
the trial court of the credibility of witnesses is entitled to the highest respect and
will not be disturbed on appeal unless certain facts of substance and value were
overlooked which, if considered, might affect the result of the case.—Time and
again, this Court has ruled that the evaluation by the trial court of the credibility
of witnesses is entitled to the highest respect and will not be disturbed on appeal
unless certain facts of substance and value were overlooked which, if considered,
might affect the result of the case. The reason for this rule is that the trial court is
in a better position to decide thereon, having personally heard the witnesses and
observed their deportment and manner of testifying during the trial. After a
thorough and careful review of the records of this case, we find that the guilt of
the appellant was sufficiently established by the evidence, and the trial court’s
judgment is well-supported by law and jurisprudence.
Same; Same; Same; Same; What is material to the prosecution for illegal sale of
dangerous drugs is the proof that the sale actually took place, coupled with the
presentation in court of the corpus delicti as evidence.—What is material to the
prosecution for illegal sale of dangerous drugs is the proof that the sale actually
took place, coupled with the presentation in court of the corpus delicti as
evidence. In this case, the prosecution adduced proof beyond reasonable doubt
that the appellant sold one (1) kilo of marijuana to poseur-buyer SPO1 Orlando
Dalusong in the entrapment operation.
Same; Same; Same; Same; Unless there is clear and convincing evidence that the
members of the buy-bust team were inspired by any improper motive or were not
properly performing their duty, their testimonies on the buy-bust operation
deserve full faith and credit.—The testimonies of the principal prosecution
witnesses complement each other, giving a complete picture of how the
appellant’s illegal sale of the prohibited drug transpired, and how the sale led to
his apprehension in flagrante delicto. Their testimonies establish beyond doubt
that dangerous drugs were in the possession of the appellant who had no authority
to possess or sell the same. More importantly, all the persons who obtained and
received the confiscated stuff did so in the performance of their official duties.
Unless there is clear and convincing evidence that the members of the buy-bust
team were inspired by any improper motive or were not properly performing their
duty, their testimonies on the buy-bust operation deserve full faith and credit.
Same; Same; Same; Same; For testimonial evidence to be believed, it must not
only proceed from the mouth of a credible witness but must also be credible in
itself such that a common experience and observation of mankind lead to the
inference of its probability under the circumstances.—It is axiomatic that for
testimonial evidence to be believed, it must not only proceed from the mouth of
a credible witness but must also be credible in itself such that common experience
and observation of mankind lead to the inference of its probability under the
circumstances. In criminal prosecution, the court is always guided by evidence
that is tangible, verifiable and in harmony with the usual course of human
experience and not by mere conjecture or speculation. Testimonies that do not
adhere to this standard are necessarily accorded little weight or credence. Besides,
instigation, or the appellant’s claim of a frame-up, is a defense that has been
invariably viewed by this Court with disfavor because the same can easily be
concocted and is a common standard defense ploy in most prosecutions for
violations of the Dangerous Drugs Act.
Same; Same; Same; Same; Testimony or identity of the police informant may be
dispensed with inasmuch as his or her narration would be merely corroborative,
especially when the poseur-buyer himself testified on the sale of the illegal
drug.—The failure of the prosecution to present Oliver, the police informant,
does not enfeeble the case for the prosecution. Informants are almost always
never presented in court because of the need to preserve their invaluable service
to the police. Their testimony or identity may be dispensed with inasmuch as his
or her narration would be merely corroborative, especially so in this case, when
the poseur-buyer himself testified on the sale of the illegal drug.
Same; Same; Same; The marked money used in the buy-bust operation is not
indispensable in drug cases; it is merely corroborative evidence.—Even if the
xerox copy of the P500.00 bill was erroneously admitted in evidence by the trial
court, the absence of the original of the marked money is inconsequential. The
marked money used in the buy-bust operation is not indispensable in drug cases;
it is merely corroborative evidence. People vs. Domingcil, 419 SCRA 291, G.R.
No. 140679 January 14, 2004
For the sale and delivery of one (1) kilo of marijuana to a poseur-buyer, the
appellant Manny Domingcil was charged before the Regional Trial Court of
Laoag City, Branch 16, for violation of Section 4, Article II of Republic Act No.
6425 in an Information, the accusatory portion of which reads:
That on or about the 12th day of August, 1994, in the City of Laoag, Philippines,
and within the jurisdiction of this Honorable Court, the said accused, not
authorized by law, did then and there willfully, unlawfully and feloniously sell
and deliver mixed dried marijuana leaves, tops and seeds in brick form, wrapped
with paper placed in a plastic bag, a prohibited drug, weighing 800 grams, to a
poseur-buyer in a buy-bust operation conducted by Police Officers of Laoag City,
in violation of the aforesaid law.1
Upon arraignment on August 29, 1994, the appellant, assisted by counsel,
pleaded not guilty to the offense charged.2 The case thereafter proceeded to trial.
The Case for the Prosecution
On August 12, 1994, at around 11:00 a.m., Belrey Oliver, an employee of Ferd’s
Upholstery Shop located in Barangay 2, Laoag City, arrived at the Laoag Police
Station. He reported to Chief Investigator SPO4 Rodrigo Ventura that the
appellant went to their shop looking for a buyer of marijuana. Oliver recounted
telling the appellant that he knew of someone who was interested and ready to
buy marijuana, and instructing him to bring one (1) kilo of the substance to a
store located in front of the Divine Word College of Laoag at General Segundo
Avenue, Laoag City at around 1:30 p.m. of that same day. 3
Acting on the said report, SPO4 Ventura formed a team to conduct a buy-bust
operation against the appellant. He assigned SPO1 Orlando Dalusong as the
poseur-buyer, and SPO2 Marlin Ramos, SPO2 Warlito Maruquin, SPO1
Rovimanuel Balolong, SPO1 Loreto Ancheta, and SPO2 Rosemarie Agustin, all
assigned at the Investigation Section of the Laoag Police Station as back-up. The
marked "buy-money" consisting of one P500-bill bearing Serial No. G-242745
was recorded in the police blotter in accordance with standard operating
procedure.4
Except for SPO1 Dalusong and Oliver, the rest of the team left the precinct on
board two (2) owner-type jeeps and posted themselves near the Macmac Store,
across the gate of the Divine Word College. Five minutes later, SPO1 Dalusong
and Oliver arrived at General Segundo Avenue.5 Oliver immediately approached
the appellant, who was then standing between the Macmac Store and a xerox
center, and introduced poseur-buyer SPO1 Dalusong, who was sporting casual
clothes and slippers: "Pare, daytoy tay gumatangen" ("Friend, this is the buyer").
At this point, the appellant who was carrying an orange plastic bag, brought out
a brick-like item wrapped in newspaper. He handed the item to SPO1 Dalusong,
who forthwith checked the same by making a small hole through it. Convinced
that the brick-like item was indeed marijuana, SPO1 Dalusong handed the P500
bill to the appellant. He thereupon scratched his head, a signal to the back-up men
that the transaction had been consummated.6 Momentarily, the back-up officers,
who had earlier positioned themselves separately in different strategic locations
near the poseur-buyer, rushed to the scene and arrested the appellant. SPO1
Dalusong then handed the orange plastic bag containing the suspected marijuana
to SPO4 Ventura. SPO2 Ramos frisked the appellant and recovered the buy-
money from the latter’s pocket. Thereafter, the appellant was brought to the
headquarters where he was booked, and the incident was recorded in the police
blotter.7 The suspected marijuana was brought to and initially examined by Dr.
Joseph Adaya, an accredited physician of the Dangerous Drugs Board (DDB),
who certified that the item comprised of three genuine mixture of marijuana
leaves with seeds.8
On September 5, 1994, SPO4 Ventura sent a letter to the Commanding Officer
of the PNP Crime Laboratory Service, Camp Diego Silang, San Fernando, La
Union, requesting for the examination of samples of the suspected marijuana
taken from the appellant.9 On September 6, 1998, SPO1 Loreto Ancheta,
evidence custodian of the Laoag City, PNP, delivered the orange plastic bag
containing the suspected marijuana to the PNP provincial crime laboratory
service in Camp Juan, Laoag City. The bag, together with SPO4 Ventura’s letter-
request, was received by SPO3 Diosdado Mamotos.10 On September 8, 1994,
SPO3 Mamotos forwarded the laboratory request and the confiscated item, and
were duly received by SPO4 Tampos.11 The latter, in turn, handed the item to
Police Superintendent Theresa Ann B. Cid, Forensic Chemist of the Crime
Laboratory Center, Region I, Camp Diego Silang, Carlatan, San Fernando, La
Union, who conducted an examination of representative samples extracted from
the suspected marijuana confiscated from the appellant.12 On the basis of her
examination, Superintendent Cid issued Chemistry Report No. D-074-94 with
the following findings:
SPECIMEN SUBMITTED:
One (1) block of suspected marijuana fruiting tops weighing eight hundred grams
(800) wrapped with newspaper pages contained in an orange plastic bag.
...
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of marijuana on the above-mentioned specimen.
F I N D I N G S:
Qualitative examination conducted on the above-mentioned specimen prove
POSITIVE result to the test for marijuana, a prohibited drug. 13
The Case for the Appellant
The appellant interposed the twin defenses of denial and alibi. He testified that
sometime in the first week of August 1994, he and Ernesto Gamiao went to the
City of Laoag to canvass the price for the repair of the upholstery of a passenger
jeepney. On that occasion, they befriended a certain Belrey Oliver who was an
employee of the Ferd’s Upholstery Shop. In the course of their conversation,
Oliver asked the appellant where he came from and what his occupation was.
Upon being told that he helped in harvesting mangoes in Cagayan, Oliver
immediately offered refreshments to Gamiao and the appellant. While taking
their snacks, Oliver inquired whether they wanted to back up the promotion of
certain policemen who, in the future, might be able to return the favor to them.
When the appellant asked in what way they could extend help, Oliver suggested
that they look for somebody in Cagayan from whom they could buy one (1) kilo
of marijuana. He agreed to Oliver’s suggestion. The latter handed to him the
amount of P700.00 to cover the purchase of the marijuana. The appellant
immediately went to the terminal bound for Cagayan to look for somebody from
that province who could be of help. When he could not find anyone, he decided
to personally take the trip. He then instructed Gamiao to just go home to Vintar
and inform his mother that he was going to Cagayan.
The appellant thereafter took a bus bound for Tuguegarao, Cagayan. After three
(3) days, he was able to buy one kilo of marijuana for P300.00. When he returned
to Laoag City on August 12, 1994, he went to Ferd’s Upholstery Shop at 11:30
a.m. to inform Oliver that he had procured the order. After seeing the marijuana,
Oliver instructed him to take it and meet him at about 12:30 p.m. of the same day
in front of the Divine Word College where they would hand over the marijuana
to the policemen they intended to help.
At about 12:00 noon, the appellant arrived at Macmac’s Store and took his
merienda. Momentarily, Oliver arrived alone on a tricycle. Oliver summoned him
and they walked southward, away from the Macmac’s Store, looking for the
policemen to whom they would deliver the marijuana. They walked back
northward, at which point they encountered an owner-type jeep which suddenly
stopped. He was nonplussed when Oliver grabbed him by the neck, seized his
knapsack containing the marijuana, and pushed him inside the jeep. He was made
to sit beside the driver with another policeman, while Oliver seated himself at the
back seat with another policeman. The jeep they were riding was followed by a
patrol car. Still dazed at the sudden turn of events, he asked Oliver four times,
"Why is it that this is now happening to me(?)," but Oliver did not respond. At
the police station, he was immediately locked up. That afternoon, SPO4 Ventura
and SPO2 Ramos, accompanied by Oliver, brought him to the City Fiscal’s
Office. He was later brought to the provincial hospital where he was subjected to
a physical check-up. That was the last time he saw or heard of Oliver.14
On July 9, 1999, the court a quo rendered judgment,15 the dispositive portion of
which reads :
WHEREFORE, premises considered, the Court is morally convinced beyond
reasonable doubt that the accused Manny Domingcil is GUILTY under Sec. 4 of
Art. II, RA No. 6425, as amended, otherwise known as the Dangerous Drugs Act
of 1972. The quantity of marijuana involved is more than 750 grams; hence, in
accordance with Sec. 20, the penalty provided for in Sec. 4, shall be applied. The
accused is hereby sentenced to reclusion perpetua with all its accessory penalties
and to pay the costs.
Hence, the present appeal.
The appellant submits the following assignment of errors:
1. The lower Court erred in finding that the accused was not instigated in looking
for marijuana and bringing it to Laoag.
2. The lower Court erred in finding that the accused received the FIVE
HUNDRED PESO bill, despite his denial that he received the same and that his
denial cannot prevail over the positive testimony of the police officers who are
presumed to be regularly performing their official duties, there being no improper
motive attributed to them.
3. The lower Court erred in convicting the accused.16
The appellant contends that contrary to the collective testimonies of the
prosecution witnesses, Oliver instigated him to buy marijuana. The trial court
erred in not giving credence and probative weight to his testimony and in
considering the testimonies of the witnesses of the prosecution.
The appeal has no merit.
Time and again, this Court has ruled that the evaluation by the trial court of the Q Where will the operation take place?
credibility of witnesses is entitled to the highest respect and will not be disturbed
on appeal unless certain facts of substance and value were overlooked which, if A In front of Macmac Store, particularly, in front of the Divine Word College
considered, might affect the result of the case. The reason for this rule is that the of Laoag, sir.
trial court is in a better position to decide thereon, having personally heard the Q And did you have any participation in that operation?
witnesses and observed their deportment and manner of testifying during the
trial.17 After a thorough and careful review of the records of this case, we find A Yes, sir, I acted as the poseur buy (sic).
that the guilt of the appellant was sufficiently established by the evidence, and
Q At what time was the operation scheduled to be executed?
the trial court’s judgment is well-supported by law and jurisprudence.
A 1:30 P.M. of August 12, 1994, sir.
What is material to the prosecution for illegal sale of dangerous drugs is the proof
that the sale actually took place, coupled with the presentation in court of Q For the said operation, what preparations, if any, did your group take?
the corpus delicti as evidence.18 In this case, the prosecution adduced proof
beyond reasonable doubt that the appellant sold one (1) kilo of marijuana to A Our Chief of Intelligence made a plan, sir.
poseur-buyer SPO1 Orlando Dalusong in the entrapment operation.
Q What was the plan?
Q How has the case involving drug or marijuana involving the accused brought
A To conduct the buy-bust operation, sir.
to your attention or to your office, for that matter?
Q And you said that you were to act as poseur buyer, anything was given to you
A Our informant by the name of Belrey Oliver tipped of (sic) to us that he met
in connection with your specific participation?
Manny Domingcil at the Upholstery Shop along Ablan Avenue and he also
informed us that he ordered P500.00 worth of marijuana. A I was given the buy-bust money in the amount of P500.00, sir.
Q Who ordered from whom? Q And what will you do with that P500.00?
A Belrey Oliver from Manny Domingcil, sir. A The Chief of Intelligence, SPO4 Ventura directed me to reflect the serial
number of the money in the police blotter, the P500.00 to be used as marked
Q By the way, who was the chief of the Intelligence Section of Laoag City PNP,
money.
at that time?
Q And after the serial number was entered in the police blotter, what next did
A SPO4 Ventura, sir.
you do?
Q Was he present when the informant Belrey Oliver tipped you of (sic) about
A Before we went out of the station, the team or companions of SPO4 Ventura
this matter?
went ahead to the place where the transaction will take place, sir.
A Yes, sir.
Q And who were the companions of SPO4 Ventura who went ahead?
Q And because of that information from Belrey Oliver, what did your Chief,
A Rosemarie Agustin, SPO2 Marlin Ramos and SPO4 Balolong, sir, while
SPO4 Ventura do?
Oliver and myself were the ones who went together.
A SPO4 Ventura made or designed a plan purposely to conduct a buy-bust
Q Who went ahead to the place where the sale will take place?
operation, sir.
A The team of SPO4 Ventura, sir.
Q And did you reach the place where the transaction will take place?
A Yes, sir.
Q Before you started to the place where the transaction will take place in front
of the Divine Word College of Laoag, did you know then the face of Manny
Domingcil?
A No, sir.
Q How did you know his face then?
A Belrey Oliver, the informant, informed me that the person is Manny
Domingcil.
Q So, what you are saying is: when you arrived at the scene where the
transaction would take place, Manny Domingcil was already there and that
Belrey Oliver pointed him to you?
A Yes, sir.
Q After that, what did you do with Belrey Oliver?
A We went near Manny Domingcil, sir.
Q And after or as soon as you were near him, what happened next?
A Belrey Oliver introduced Manny Domingcil to me as the buyer, sir.
Q What did Oliver say?
A "Pare, daytoy tay gumatangen", (which when translated into english[sic]
means): "Pare, this is the buyer."
Q And so, what was the reaction of Manny Domingcil?
A Before that I asked Manny Domingcil if he has the stuff that was ordered.
Q And what did he say?
A Manny Domingcil said: "There is, Pare."
Q By the way, who ordered the stuff from Manny Domingcil?
A Belrey Oliver, sir.
Q Did you ask Oliver where he ordered that from Manny Domingcil?
A Yes, sir.
Q Where?
A At the Upholstery Shop at Ablan Avenue, sir.
Q That was what Oliver told you when he ordered the stuff?
A Yes, sir.
Q When Manny Domingcil said: "There is, pare," what transpired next, if any?
A I told him: "Can I look at it" and he brought out a wrapped brick-type form
wrapped in a newspaper inside an orange plastic bag.
Q And after he had brought out the said thing, what did you do with it?
A I checked the contents if it is real marijuana, sir.
Q You said the thing was wrapped with newspaper and you said you checked
its contents?
A Yes, sir, I opened the wrapper, by making a small hole at the side.
Q And what was the result of your inspection?
A I found out that it was real marijuana, sir.
Q And, so what did you do then?
A After I found out that it was marijuana I handed to Manny Domingcil the
P500 peso bill, sir.
Q And as soon as you have handed the P500.00 bill, what did you do next?
A I gave the signal to my companions, sir.
Q And what did your companions do when you gave the signal?
A They apprehended Manny Domingcil, sir.
Q What was your signal?
A I scratched my head, sir.
Q And, what was your attire at that time you bought the brick-type marijuana
from Manny Domingcil?
A Ordinary clothes, sir, wearing slippers.
Q And all the time during your transaction with Manny Domingcil, where was
Belrey Oliver?
A At my side, sir.
Q And during the transaction, did Belrey Oliver say anything?
A None, sir.
Q And after giving your signal to your companion police officers who were
nearby and they rushed to your place where you were, what happened?
A They apprehended Manny Domingcil, sir.
Q And what about the marijuana which you said Manny Domingcil sold to you?
A I handed it to SPO4 Rodrigo Ventura, sir.
Q And what about the P500 peso bill, do you know what happened to it?
A SPO2 Marlin Ramos recovered the P500 peso bill from the pocket of Manny
Domingcil.
Q And after arresting Manny Domingcil where did your group go?
A To the police station, sir.
Q Do you know if any records were made to your police station when you
returned or arrived there?
A Yes, sir.
Q What for example?
A They made a request ... we reflected in the police blotter the apprehension of
Manny Domingcil, the confiscation of the marijuana and the recovery of the
marked money in the amount of P500.00.
Q Was the serial number of the P500 bill you recovered from the pocket of
Manny Domingcil recorded?
A Yes, sir.
Q And do you know what happened to the stuff later on after you returned to
the police station?
A They made a request to Dr. Adaya to conduct an initial examination on the
confiscated marijuana, sir.19
The foregoing testimony of SPO1 Orlando Dalusong was corroborated on
material points by SPO4 Rodrigo Ventura, then Chief of the Intelligence Section
of the PNP of Laoag City who organized and conducted the operation and was
part of the buy-bust team itself.20 SPO4 Ventura remained steadfast and
unwavering on cross-examination despite intense grilling by the defense
counsel.21
Police Superintendent Theresa Ann Cid, the Forensic Chemist assigned at the
PNP Crime Laboratory Center at San Fernando, La Union, confirmed 22 Dr.
Joseph Adaya’s initial finding23 that the substance seized from the appellant was
indeed marijuana, a prohibited drug.
It was also fairly established by SPO3 Diosdado Mamotos24 and SPO1 Loreto
Ancheta25 that the confiscated marijuana was the same substance examined by
the forensic chemist and later presented as evidence in court.
The testimonies of the principal prosecution witnesses complement each other,
giving a complete picture of how the appellant’s illegal sale of the prohibited
drug transpired, and how the sale led to his apprehension in flagrante delicto.
Their testimonies establish beyond doubt that dangerous drugs were in the
possession of the appellant who had no authority to possess or sell the same. More
importantly, all the persons who obtained and received the confiscated stuff did
so in the performance of their official duties. Unless there is clear and convincing
evidence that the members of the buy-bust team were inspired by any improper
motive or were not properly performing their duty, their testimonies on the buy-
bust operation deserve full faith and credit.26
The appellant’s bare denial of the crime charged and his barefaced claim that he
was merely instigated by Oliver into procuring the marijuana cannot prevail over
the straightforward and positive testimonies of the prosecution witnesses. It is
incredible that the appellant, who had just met Belrey Oliver in the course of his
canvass for the upholstery of his brother’s jeepney, would readily leave his errand
behind and allow a stranger to talk him into buying a prohibited drug, a known
criminal activity for which he could be prosecuted, and if convicted, sentenced
to reclusion perpetua. All this he was willing to risk, in exchange for an empty
promise of alleged future favors from another who was also unknown to the
appellant. The appellant supposedly traveled to and spent almost three days in
Tuguegarao, Cagayan, just to be able to accommodate a newly found
acquaintance, who handed the appellant the meager sum of P700.00 for the
intended purpose. The Court cannot give credence to such a preposterous stance
as advanced by the appellant and confirmed by his supposed corroborative
witness, Ernesto Gamiao.
It is axiomatic that for testimonial evidence to be believed, it must not only
proceed from the mouth of a credible witness but must also be credible in itself
such that common experience and observation of mankind lead to the inference
of its probability under the circumstances. In criminal prosecution, the court is
always guided by evidence that is tangible, verifiable and in harmony with the
usual course of human experience and not by mere conjecture or speculation.
Testimonies that do not adhere to this standard are necessarily accorded little
weight or credence.27 Besides, instigation, or the appellant’s claim of a frame-up,
is a defense that has been invariably viewed by this Court with disfavor because
the same can easily be concocted and is a common standard defense ploy in most
prosecutions for violations of the Dangerous Drugs Act.28 Thus, in People vs.
Bongalon,29 the Court held:
As we have earlier stated, the appellant’s denial cannot prevail over the positive
testimonies of the prosecution witnesses. We are not unaware of the perception
that, in some instances, law enforcers resort to the practice of planting evidence
to extract information or even to harass civilians. However, like alibi, frame-up
is a defense that has been viewed by the Court with disfavor as it can easily be,
concocted, hence, commonly used as a standard line of defense in most
prosecutions arising from violations of the Dangerous Drugs Act. We realize the
disastrous consequences on the enforcement of law and order, not to mention the
well-being of society, if the courts, solely on the basis of the policemen’s alleged
rotten reputation, accept in every instance this form of defense which can be so
easily fabricated. It is precisely for this reason that the legal presumption that
official duty has been regularly performed exists.
The failure of the prosecution to present Oliver, the police informant, does not
enfeeble the case for the prosecution. Informants are almost always never
presented in court because of the need to preserve their invaluable service to the
police. Their testimony or identity may be dispensed with inasmuch as his or her
narration would be merely corroborative, especially so in this case, when the
poseur-buyer himself testified on the sale of the illegal drug.30
The appellant’s claim that the prosecution offered in evidence a mere xerox copy
of the P500.00 buy money and did not account for its failure to adduce in
evidence the original copy thereof is not supported by the records. The records
show that the original, and not merely a xerox copy of the marked money, was in
fact offered in evidence by the prosecution.31 The appellant would surely have
objected if the prosecution had offered in evidence a mere xerox copy of the bill.
The appellant did not do so. The only ground for his objection to the admission
of the marked money was that it was self-serving.
Even if the xerox copy of the P500.00 bill was erroneously admitted in evidence
by the trial court, the absence of the original of the marked money is
inconsequential. The marked money used in the buy-bust operation is not
indispensable in drug cases;32 it is merely corroborative evidence. Moreover, the
appellant was charged not only for the sale of marijuana but also for the delivery
thereof, which is committed by the mere delivery or transfer of the prohibited
drug. The consideration for the transaction is of no moment. 33
The law defines deliver as "a person’s act of knowingly passing a dangerous drug
to another with or without consideration." 34 Considering that the appellant was
charged with the sale and the delivery of prohibited drugs, the consummation of
the crime of delivery of marijuana may be sufficiently established even in the
absence of the marked money. The erasures and alterations in the Joint Affidavit
of the policemen involved in the buy-bust operation did not debilitate the case of
the prosecution. First. The Joint Affidavit of the policemen was not admitted in
evidence for any party. Second. The investigator who prepared the "Joint
Affidavit" erroneously stated that the two P500.00 bills were used by the
policemen who conducted the buy-bust operation bearing Serial Numbers
AA823675 and G242745. As shown by the prosecution’s evidence the policemen
used only the P500.00 bill bearing Serial No. G242745 for the purchase of the
drug. Hence, the "Joint Affidavit" of the policemen had to be corrected to reflect
the truth.
All told, the presumption of regularity in the performance of duty is, in this case,
uncontradicted by evidence to the contrary and, therefore, stands. This is
bolstered by the fact that the prosecution’s evidence fully shows and confirms
such regularity. Accordingly, there exists no cogent reason to reverse or even
modify the findings of the trial court giving credence to the evidence of the
prosecution.
IN THE LIGHT OF ALL THE FOREGOING, the Decision of the Regional
Trial Court of Laoag City, Branch 16, in Criminal Case No. 7079, finding the
appellant guilty beyond reasonable doubt of the crime of violation of Section 4,
Article II of Republic Act No. 6425, is hereby AFFIRMED.

SO ORDERED.

Note.—There is no need to present the informant in court where the sale was
actually witnessed and adequately proved by prosecution witnesses. (People vs.
Doria, 301 SCRA 668 [1999] People vs. Domingcil, 419 SCRA 291, G.R. No.
140679 January 14, 2004
G.R. Nos. 96027-28. March 8, 2005
BRIG. GEN. LUTHER A. CUSTODIO,** CAPT. ROMEO M. BAUTISTA,
2nd LT. JESUS D. CASTRO, SGT. CLARO L. LAT, SGT. ARNULFO B.
DE MESA, C1C ROGELIO B. MORENO, C1C MARIO E. LAZAGA, SGT.
FILOMENO D. MIRANDA, SGT. ROLANDO C. DE GUZMAN, SGT.
ERNESTO M. MATEO, SGT. RODOLFO M. DESOLONG, A1C
CORDOVA G. ESTELO, MSGT. PABLO S. MARTINEZ, SGT. RUBEN
AQUINO, SGT. ARNULFO ARTATES, A1C FELIZARDO TARAN,
petitioners, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES,
respondents.
Actions; Pleadings and Practice; New Trial; Newly-Discovered Evidence; In
the proceedings for new trial, the errors of law or irregularities are expunged from
the record or new evidence is introduced.—In line with the objective of the Rules
of Court to set guidelines in the dispensation of justice, but without shackling the
hands that dispense it, the remedy of new trial has been described as “a new
invention to temper the severity of a judgment or prevent the failure of justice.”
Thus, the Rules allow the courts to grant a new trial when there are errors of law
or irregularities prejudicial to the substantial rights of the accused committed
during the trial, or when there exists newly discovered evidence. In the
proceedings for new trial, the errors of law or irregularities are expunged from
the record or new evidence is introduced. Thereafter, the original judgment is
vacated and a new one is rendered.
Same; Same; Same; Same; This Court has repeatedly held that before a new trial
may be granted on the ground of newly discovered evidence, the following must
be shown.—Courts are generally reluctant in granting motions for new trial on
the ground of newly discovered evidence for it is presumed that the moving party
has had ample opportunity to prepare his case carefully and to secure all the
necessary evidence before the trial. Such motions are treated with great caution
due to the danger of perjury and the manifest injustice of allowing a party to
allege that which may be the consequence of his own neglect to defeat an adverse
judgment. Hence, the moving party is often required to rebut a presumption that
the judgment is correct and that there has been a lack of due diligence, and to
establish other facts essential to warrant the granting of a new trial on the ground
of newly discovered evidence. This Court has repeatedly held that before a new
trial may be granted on the ground of newly discovered evidence, it must be
shown (1) that the evidence was discovered after trial; (2) that such evidence
could not have been discovered and produced at the trial even with the exercise
of reasonable diligence; (3) that it is material, not merely cumulative,
corroborative, or impeaching; and (4) the evidence is of such weight that it would
probably change the judgment if admitted. If the alleged newly discovered
evidence could have been very well presented during the trial with the exercise
of reasonable diligence, the same cannot be considered newly discovered.
Same; Same; Same; Same; Berry Rule; These standards, also known as the
“Berry” Rule, trace their origin to the 1851 case of Berry vs. State of Georgia.—
These standards, also known as the “Berry” rule, trace their origin to the 1851
case of Berry vs. State of Georgia where the Supreme Court of Georgia held:
Applications for new trial on account of newly discovered evidence, are not
favored by the Courts. x x x Upon the following points there seems to be a pretty
general concurrence of authority, viz.; that it is incumbent on a party who asks
for a new trial, on the ground of newly discovered evidence, to satisfy the Court,
1st. That the evidence has come to his knowledge since the trial. 2d. That it was
not owing to the want of due diligence that it did not come sooner. 3d. That it is
so material that it would produce a different verdict, if the new trial were granted.
4th. That it is not cumulative only—viz.; speaking to facts, in relation to which
there was evidence on the trial. 5th. That the affidavit of the witness himself
should be produced, or its absence accounted for. And 6th, a new trial will not be
granted, if the only object of the testimony is to impeach the character or credit
of a witness.
Same; Same; Same; Same; Burden of Proof; It should be emphasized that the
applicant for new trial has the burden of showing that the new evidence he seeks
to present has complied with the requisites to justify the holding of a new trial.—
These guidelines have since been followed by our courts in determining the
propriety of motions for new trial based on newly discovered evidence. It should
be emphasized that the applicant for new trial has the burden of showing that the
new evidence he seeks to present has complied with the requisites to justify the
holding of a new trial.
Same; Same; Same; Same; The question of whether evidence is newly
discovered has two aspects: temporal and predictive.—The threshold question
in resolving a motion for new trial based on newly discovered evidence is whether
the proferred evidence is in fact a “newly discovered evidence which could not
have been discovered by due diligence.” The question of whether evidence is
newly discovered has two aspects: a temporal one, i.e., when was the evidence
discovered, and a predictive one, i.e., when should or could it have been
discovered. It is to the latter that the requirement of due diligence has relevance.
We have held that in order that a particular piece of evidence may be properly
regarded as newly discovered to justify new trial, what is essential is not so much
the time when the evidence offered first sprang into existence nor the time when
it first came to the knowledge of the party now submitting it; what is essential is
that the offering party had exercised reasonable diligence in seeking to locate
such evidence before or during trial but had nonetheless failed to secure it.
Same; Same; Same; Same; In criminal as well as civil cases, it has frequently
been held that the fact that blunders and mistakes may have been made in the
conduct of the proceedings in the trial court, as a result of the ignorance,
inexperience, or incompetence of counsel, does not furnish a ground for a new
trial.—In criminal as well as civil cases, it has frequently been held that the fact
that blunders and mistakes may have been made in the conduct of the proceedings
in the trial court, as a result of the ignorance, inexperience, or incompetence of
counsel, does not furnish a ground for a new trial. If such grounds were to be
admitted as reasons for reopening cases, there would never be an end to a suit so
long as new counsel could be employed who could allege and show that prior
counsel had not been sufficiently diligent, or experienced, or learned. So it has
been held that mistakes of attorneys as to the competency of a witness, the
sufficiency, relevancy, materiality, or immateriality of a certain evidence, the
proper defense, or the burden of proof are not proper grounds for a new trial; and
in general the client is bound by the action of his counsel in the conduct of his
case, and can not be heard to complain that the result of the litigation might have
been different had counsel proceeded differently. Custodio vs. Sandiganbayan,
453 SCRA 24, G.R. Nos. 96027-28 March 8, 2005
Before us is a Motion To Re-Open Case With Leave Of Court filed by petitioners
who were convicted and sentenced to reclusion perpetua by the Sandiganbayan
in Criminal Cases Nos. 10010 and 10011 for the double murder of Senator
Benigno Aquino, Jr. and Rolando Galman on August 21, 1983.[1]
Petitioners were members of the military who acted as Senator Aquino's security
detail upon his arrival in Manila from his three-year sojourn in the United States.
They were charged, together with several other members of the military, before
the Sandiganbayan for the killing of Senator Aquino who was fatally shot as he
was coming down from the aircraft of China Airlines at the Manila International
Airport. Petitioners were also indicted for the killing of Rolando Galman who
was also gunned down at the airport tarmac.
On December 2, 1985, the Sandiganbayan rendered a Decision in Criminal Cases
Nos. 10010-10011 acquitting all the accused, which include the petitioners.
However, the proceedings before the Sandiganbayan were later found by this
Court to be a sham trial. The Court thus nullified said proceedings, as well as the
judgment of acquittal, and ordered a re-trial of the cases.[2]
A re-trial ensued before the Sandiganbayan.
In its decision dated September 28, 1990, the Sandiganbayan, while acquitting
the other accused, found the petitioners guilty as principals of the crime of murder
in both Criminal Cases Nos. 10010 and 10011. It sentenced them to reclusion
perpetua in each case.[3] The judgment became final after this Court denied
petitioners' petition for review of the Sandiganbayan decision for failure to show
reversible error in the questioned decision,[4] as well as their subsequent motion
for reconsideration.[5]
In August 2004, petitioners sought legal assistance from the Chief Public
Attorney who, in turn, requested the Independent Forensic Group of the
University of the Philippines to make a thorough review of the forensic evidence
in the double murder case. The petitioners, assisted by the Public Attorney's
Office, now want to present the findings of the forensic group to this Court and
ask the Court to allow the re-opening of the cases and the holding of a third trial
to determine the circumstances surrounding the death of Senator Benigno
Aquino, Jr. and Rolando Galman.
Petitioners invoke the following grounds for the re-opening of the case:
I
Existence of newly discovered pieces of evidence that were not available during
the second trial of the above-entitled cases which could have altered the
judgment of the Sandiganbayan, specifically:
A) Independent forensic evidence uncovering the false forensic claims that led
to the unjust conviction of the petitioners-movants.
B) A key defense eyewitness to the actual killing of Senator Benigno Aquino,
Jr.
II
There was a grave violation of due process by reason of:
 A) Insufficient legal assistance of counsel;
B) Deprivation of right to counsel of choice;
C) Testimonies of defense witnesses were under duress;
D) Willful suppression of evidence;
E) Use of false forensic evidence that led to the unjust conviction of the
petitioners-movants.
III
There was serious misapprehension of facts on the part of the Sandiganbayan
based on false forensic evidence, which entitles petitioners-movants to a re-
trial.[6]
Petitioners seek to present as new evidence the findings of the forensic group
composed of Prof. Jerome B. Bailen, a forensic anthropologist from the
University of the Philippines, Atty. Erwin P. Erfe, M.D., a medico-legal
practitioner, Benito E. Molino, M.D., a forensic consultant and Human Rights
and Peace Advocate, and Anastacio N. Rosete, Jr., D.M.D., a forensic dentistry
consultant. Their report essentially concludes that it was not possible, based on
the forensic study of the evidence in the double murder case, that C1C Rogelio
Moreno fired at Senator Aquino as they descended the service stairway from the
aircraft. They posit that Senator Aquino was shot while he was walking on the
airport tarmac toward the waiting AVSECOM van which was supposed to
transport him from the airport to Fort Bonifacio. This is contrary to the finding
of the Sandiganbayan in the second trial that it was C1C Moreno, the security
escort positioned behind Senator Aquino, who shot the latter. The report also
suggests that the physical evidence in these cases may have been misinterpreted
and manipulated to mislead the court. Thus, petitioners assert that the September
28, 1990 decision of the Sandiganbayan should be voided as it was based on false
forensic evidence. Petitioners submit that the review by the forensic group of the
physical evidence in the double murder case constitutes newly discovered
evidence which would entitle them to a new trial under Rule 121 of the 2000
Rules of Criminal Procedure. In addition to the report of the forensic group,
petitioners seek to present the testimony of an alleged eyewitness, the driver of
the waiting AVSECOM van, SPO4 Ruben M. Cantimbuhan. In his affidavit
submitted to this Court, SPO4 Cantimbuhan states that he saw a man in blue
uniform similar to that of the Philippine Airlines maintenance crew, suddenly fire
at Senator Aquino as the latter was about to board the van. The man in blue was
later identified as Rolando Galman.
Petitioners pray that the Court issue a resolution:
1. [a]nnulling and setting aside this Honorable Court's Resolutions dated July 23,
1991 and September 10, 1991;
2. [a]nnulling and setting aside the Decision of the Sandiganbayan (3 rd Division)
dated September 28, 1990 in People vs. Custodio, et al., Case No. 10010-10011[;]
3. [o]rdering the re-opening of this case; [and]
4. [o]rdering the Sandiganbayan to allow the reception of additional defense
evidence/re-trial in the above entitled cases.[7] '
The issue now is whether petitioners are entitled to a third trial under Rule 121
of the 2000 Rules of Criminal Procedure.
The pertinent sections of Rule 121 of the 2000 Rules of Criminal Procedure
provide:
Section 1. New Trial or reconsideration. ' At any time before a judgment of
conviction becomes final, the court may, on motion of the accused or at its own
instance but with the consent of the accused, grant a new trial or reconsideration.
Sec. 2. Grounds for a new trial. ' The court shall grant a new trial on any of the
following grounds:
(a) That errors of law or irregularities prejudicial to the substantial rights of the
accused have been committed during the trial;
(b) That new and material evidence has been discovered which the accused
could not with reasonable diligence have discovered and produced at the
trial and which if introduced and admitted would probably change the
judgment.
xxx
Sec. 6. Effects of granting a new trial or reconsideration. ' The effects of
granting a new trial or reconsideration are the following:
(a) When a new trial is granted on the ground of errors of law or irregularities
committed during the trial, all the proceedings and evidence affected thereby
shall be set aside and taken anew. The court may, in the interest of justice, allow
the introduction of additional evidence.
(b) When a new trial is granted on the ground of newly discovered evidence, the
evidence already adduced shall stand and the newly-discovered and such other
evidence as the court may, in the interest of justice, allow to be introduced shall
be taken and considered together with the evidence already in the record.
(c) In all cases, when the court grants new trial or reconsideration, the original
judgment shall be set aside or vacated and a new judgment rendered
accordingly. (emphasis supplied)
In line with the objective of the Rules of Court to set guidelines in the
dispensation of justice, but without shackling the hands that dispense it, the
remedy of new trial has been described as 'a new invention to temper the severity
of a judgment or prevent the failure of justice.[8] Thus, the Rules allow the courts
to grant a new trial when there are errors of law or irregularities prejudicial to the
substantial rights of the accused committed during the trial, or when there exists
newly discovered evidence. In the proceedings for new trial, the errors of law or
irregularities are expunged from the record or new evidence is introduced.
Thereafter, the original judgment is vacated and a new one is rendered.[9]
Under the Rules, a person convicted of a crime may avail of the remedy of new
trial before the judgment of conviction becomes final. Petitioners admit that the
decision of the Sandiganbayan in Criminal Cases Nos. 10010 and 10011 became
final and executory upon denial of their petition for review filed before this Court
and their motion for reconsideration. Entry of judgment has in fact been made on
September 30, 1991.[10] Nonetheless, they maintain that equitable
considerations exist in this case to justify the relaxation of the Rules and re-open
the case to accord petitioners the opportunity to present evidence that will
exonerate them from the charges against them. We do not find merit in their
submission.
Petitioners anchor their motion on the ground of newly discovered evidence.
Courts are generally reluctant in granting motions for new trial on the ground of
newly discovered evidence for it is presumed that the moving party has had
ample opportunity to prepare his case carefully and to secure all the necessary
evidence before the trial. Such motions are treated with great caution due to the
danger of perjury and the manifest injustice of allowing a party to allege that
which may be the consequence of his own neglect to defeat an adverse judgment.
Hence, the moving party is often required to rebut a presumption that the
judgment is correct and that there has been a lack of due diligence, and to
establish other facts essential to warrant the granting of a new trial on the ground
of newly discovered evidence.[11] This Court has repeatedly held that before a
new trial may be granted on the ground of newly discovered evidence, it must
be shown (1) that the evidence was discovered after trial; (2) that such evidence
could not have been discovered and produced at the trial even with the exercise
of reasonable diligence; (3) that it is material, not merely cumulative,
corroborative, or impeaching; and (4) the evidence is of such weight that it would
probably change the judgment if admitted. If the alleged newly discovered
evidence could have been very well presented during the trial with the exercise
of reasonable diligence, the same cannot be considered newly discovered.[12]
These standards, also known as the 'Berry rule, trace their origin to the 1851 case
of Berry vs. State of Georgia [13] where the Supreme Court of Georgia held:
Applications for new trial on account of newly discovered evidence, are not
favored by the Courts. x x x Upon the following points there seems to be a pretty
general concurrence of authority, viz; that it is incumbent on a party who asks for
a new trial, on the ground of newly discovered evidence, to satisfy the Court, 1 st.
That the evidence has come to his knowledge since the trial. 2d. That it was not
owing to the want of due diligence that it did not come sooner. 3d. That it is so
material that it would produce a different verdict, if the new trial were granted.
4th. That it is not cumulative only ' viz; speaking to facts, in relation to which
there was evidence on the trial. 5th. That the affidavit of the witness himself
should be produced, or its absence accounted for. And 6 th, a new trial will not be
granted, if the only object of the testimony is to impeach the character or credit
of a witness. (citations omitted)
These guidelines have since been followed by our courts in determining the
propriety of motions for new trial based on newly discovered evidence.
It should be emphasized that the applicant for new trial has the burden of
showing that the new evidence he seeks to present has complied with the
requisites to justify the holding of a new trial.
The threshold question in resolving a motion for new trial based on newly
discovered evidence is whether the proferred evidence is in fact a 'newly
discovered evidence which could not have been discovered by due diligence. The
question of whether evidence is newly discovered has two
aspects: a temporal one, i.e., when was the evidence discovered, and
a predictive one, i.e., when should or could it have been discovered. It is to the
latter that the requirement of due diligence has relevance.[14] We have held that
in order that a particular piece of evidence may be properly regarded as newly
discovered to justify new trial, what is essential is not so much the time when the
evidence offered first sprang into existence nor the time when it first came to the
knowledge of the party now submitting it; what is essential is that the offering
party had exercised reasonable diligence in seeking to locate such evidence
before or during trial but had nonetheless failed to secure it.[15]
The Rules do not give an exact definition of due diligence, and whether the
movant has exercised due diligence depends upon the particular circumstances of
each case.[16] Nonetheless, it has been observed that the phrase is often equated
with reasonable promptness to avoid prejudice to the defendant. In other words,
the concept of due diligence has both a time component and a good faith
component. The movant for a new trial must not only act in a timely fashion in
gathering evidence in support of the motion; he must act reasonably and in good
faith as well. Due diligence contemplates that the defendant acts reasonably and
in good faith to obtain the evidence, in light of the totality of the circumstances
and the facts known to him.[17]
Applying the foregoing tests, we find that petitioners' purported evidence does
not qualify as newly discovered evidence that would justify the re-opening of the
case and the holding of a third trial.
The report of the forensic group may not be considered as newly discovered
evidence as petitioners failed to show that it was impossible for them to secure
an independent forensic study of the physical evidence during the trial of the
double murder case. It appears from their report that the forensic group used
the same physical and testimonial evidence proferred during the trial, but
made their own analysis and interpretation of said evidence. They cited the
materials and methods that they used for their study, viz:
MATERIALS AND METHODS
MATERIALS:
a. Court records of the case, especially photographs of: a) the stairway where the
late Sen. Aquino and his escorts descended; b) the part of the tarmac where the
lifeless bodies of the late Sen. Aquino and Galman fell; and c) the autopsy
conducted by the NBI Medico-legal team headed by Dr. Mu[]oz; and the autopsy
report of the late Sen. Benigno Aquino[,] Jr. signed by Dr. Mu[]oz and Dr. Solis;
b. The gun and live ammunitions collected at the crime scene;
c. A reference human skull photos and X-rays of the same to demonstrate wound
location and bullet trajectory;
d. The reports of interviews and statements by the convicted military escorts, and
other witnesses;
e. Re-enactment of the killing of Aquino based on the military escorts[] version,
by the military escorts themselves in the Bilibid Prison and by volunteers at the
NAIA Tarmac;
f. Various books and articles on forensic and the medico-legal field[;]
g. Results of Forensic experiments conducted in relation to the case.
METHODS:
a. Review of the forensic exhibits presented in the court;
b. Review of TSNs relevant to the forensic review;
c. Study of and research on the guns, slugs and ammunitions allegedly involved
in the crime;
d. Interviews/re-enactment of the crime based on the military's accounts, both in
the Bilibid Prison where the convicts are confined and the MIA (now NAIA)
stairway and tarmac;
e. Conduct of ocular inspection and measurements on the actual crime scene
(stairway and tarmac) at the old Manila International Airport (now NAIA);
f. Retracing the slug's trajectory based on the autopsy reports and experts'
testimonies using an actual human skull;
g. X-rays of the skull with the retraced trajectory based on the autopsy report and
experts' testimonies;
h. Evaluation of the presented facts and opinions of local experts in relation to
accepted forensic findings in international publications on forensic science,
particularly on guns and [gunshot] wound injuries;
i. Forensic experiments and simulations of events in relation to this case.[18]
These materials were available to the parties during the trial and there was
nothing that prevented the petitioners from using them at the time to support their
theory that it was not the military, but Rolando Galman, who killed Senator
Aquino. Petitioners, in their present motion, failed to present any new forensic
evidence that could not have been obtained by the defense at the time of the trial
even with the exercise of due diligence. If they really wanted to seek and offer
the opinion of other forensic experts at the time regarding the physical evidence
gathered at the scene of the crime, there was ample opportunity for them to do so
before the case was finally submitted and decided.[19]
A reading of the Sandiganbayan decision dated September 28, 1990 shows a
thorough study by the court of the forensic evidence presented during the
trial, viz:
COURT FINDINGS
As to the physical evidence
Great significance has to be accorded the trajectory of the single bullet that
penetrated the head and caused the death of Sen. Benigno Aquino, Jr. Basic to
the question as to trajectory ought to be the findings during the autopsy. The
prosector in the autopsy, Dr. Bienvenido Muoz, NBI Medico-Legal Officer,
reported in his Autopsy Report No. N-83-22-36, that the trajectory of the gunshot,
the wound of entrance having been located at the mastoid region, left, below the
external auditory meatus, and the exit wound having been at the anterior portion
of the mandible, was 'forward, downward and medially. (Autopsy Report No. N-
83-22-36, Exhibit 'NNNN-2-t-2')
A controversy as to this trajectory came about when, upon being cross-examined
by counsel for the defense, Dr. Bienvenido Muoz made a significant turn-about
by stating that the correct trajectory of the fatal bullet was 'upward, downward,
and medially. The present position of Dr. Muoz is premised upon the alleged fact
that he found the petrous bone fractured, obviously hit by the fatal bullet. He
concluded, in view of this finding, that the fatal bullet must have gone upward
from the wound of entrance. Since the fatal bullet exited at the mandible, it is his
belief that the petrous bone deflected the trajectory of the bullet and, thus, the
bullet proceeded downwards from the petrous bone to the mandible.
This opinion of Dr. Bienvenido Muoz in this regard notwithstanding, We hold
that the trajectory of the fatal bullet which killed Sen. Benigno Aquino, Jr. was,
indeed, 'forward, downward and medially. For the reason that the wound of
entrance was at a higher elevation than the wound of exit, there can be no other
conclusion but that the trajectory was downward. The bullet when traveling at a
fast rate of speed takes a straight path from the wound of entrance to the wound
of exit. It is unthinkable that the bullet, while projected upwards, would, instead
of exiting to the roof of the head, go down to the mandible because it was
allegedly deflected by a petrous bone which though hard is in fact a mere spongy
protuberance, akin to a cartilage.
Clear is proof of the downward trajectory of the fatal bullet; First, as Dr. Pedro
Solis and Dr. Ceferino Cunanan, the immediate superiors of Dr. Bienvenido
Muoz, manifested before the Court, that, since the wound of entrance appeared
ovaloid and there is what is known as a contusion collar which was widest at the
superior portion, indicating an acute angle of approach, a downward trajectory of
the bullet is indicated. This phenomenon indicates that the muzzle of the fatal gun
was at a level higher than that of the point of entry of the fatal bullet.
There was no showing as to whether a probe could have been made from the
wound of entrance to the petrous bone. Out of curiosity, Dr. Juanito Billote tried
to insert a probe from the wound of exit into the petrous bone. He was
unsuccessful notwithstanding four or five attempts. If at all, this disproves the
theory of Dr. Muoz that the trajectory was upward, downward and medially. On
the other hand, Dr. Juanito Billote and photographer Alexander Loinaz witnessed
the fact that Dr. Muoz[s] understudy, Alejandrino Javier, had successfully made
a probe from the wound of entrance directly towards the wound of exit.
Alejandrino Javier shouted with excitement upon his success and Alexander
Loinaz promptly photographed this event with Alejandrino Javier holding the
protruding end of the probe at the mandible. (Exhibit XXXXX-39-A')
To be sure, had the main bullet hit the petrous bone, this spongy mash of cartilage
would have been decimated or obliterated. The fact that the main bullet was of
such force, power and speed that it was able to bore a hole into the mandible and
crack it, is an indication that it could not have been stopped or deflected by a
mere petrous bone. By its power and force, it must have been propelled by a
powerful gun. It would have been impossible for the main bullet to have been
deflected form an upward course by a mere spongy protuberance. Granting that
it was so deflected, however, it could not have maintained the same power and
force as when it entered the skull at the mastoid region so as to crack the mandible
and make its exit there.
But what caused the fracture of the petrous bone? Was there a cause of the
fracture, other than that the bullet had hit it? Dr. Pedro Solis, maintaining the
conclusion that the trajectory of the bullet was downward, gave the following
alternative explanations for the fracture of the petrous bone:
First, the petrous bone could have been hit by a splinter of the main bullet,
particularly, that which was found at the temporal region; and,
Second, the fracture must have been caused by the kinetic force applied to the
point of entrance at the mastoid region which had the tendency of being radiated
towards the petrous bone.
Thus, the fracture in the occipital bone, of the temporal bone, and of the parietal
bone, Dr. Pedro Solis pointed out, had been caused by the aforesaid kinetic force.
When a force is applied to the mastoid region of the head, Dr. Pedro Solis
emphasized, a radiation of forces is distributed all over the cranial back,
including, although not limited to, the parietal bone. The skull, Dr. Solis explains,
is a box-like structure. The moment you apply pressure on the portion, a
distortion, tension or some other mechanical defect is caused. This radiation of
forces produces what is known as the 'spider web linear fracture which goes to
different parts of the body. The so-called fracturing of the petrous portion of the
left temporal bone is one of the consequences of the kinetic force forcefully
applied to the mastoid region.
The fact that there was found a fracture of the petrous bone is not necessarily
indicative of the theory that the main bullet passed through the petrous bone.
Doubt was expressed by Dr. Pedro Solis as to whether the metal fragments
alleged by Dr. Bienvenido Muoz to have been found by him inside the skull or at
the wound of exit were really parts of the main bullet which killed the Senator.
When Dr. Pedro Solis examined these fragments, he found that two (2) of the
fragments were larger in size, and were of such shapes, that they could not have
gone out of the wound of exit considering the size and shape of the exit wound.
Finding of a downward trajectory of the fatal bullet fatal to the credibility of
defense witnesses.
The finding that the fatal bullet which killed Sen. Benigno Aquino, Jr. was
directed downwards sustains the allegation of prosecution eyewitnesses to the
effect that Sen. Benigno Aquino, Jr. was shot by a military soldier at the bridge
stairs while he was being brought down from the plane. Rebecca Quijano saw
that the senator was shot by the military man who was directly behind the Senator
while the Senator and he were descending the stairs. Rebecca Quijano's testimony
in this regard is echoed by Jessie Barcelona, Ramon Balang, Olivia Antimano,
and Mario Laher, whose testimonies this Court finds likewise as credible.
The downward trajectory of the bullet having been established, it stands to reason
that the gun used in shooting the Senator was fired from an elevation higher than
that of the wound of entrance at the back of the head of the Senator. This is
consistent with the testimony of prosecution witnesses to the effect that the actual
killer of the Senator shot as he stood at the upper step of the stairs, the second or
third behind Senator Aquino, while Senator Aquino and the military soldiers
bringing him were at the bridge stairs. This is likewise consistent with the
statement of Sandra Jean Burton that the shooting of Senator Aquino occurred
while the Senator was still on the bridge stairs, a conclusion derived from the fact
that the fatal shot was fired ten (10) seconds after Senator Aquino crossed the
service door and was led down the bridge stairs.
It was the expert finding of Dr. Matsumi Suzuki that, as was gauged from the
sounds of the footsteps of Senator Aquino, as the Senator went down the bridge
stairs, the shooting of the Senator occurred while the Senator had stepped on the
11th step from the top.
At the ocular inspection conducted by this Court, with the prosecution and the
defense in attendance, it should be noted that the following facts were established
as regards the bridge stairs:
Observations:
The length of one block covering the ' tarmac ' 196;
The width of one block covering the tarmac ' 10;
The distance from the base of the staircase leading to the emergency tube to the
Ninoy marker at the tarmac ' 126;
There are 20 steps in the staircase including the landing;
The distance from the first rung of the stairway up to the 20 th rung which is the
landing of stairs ' 208;
Distance from the first rung of the stairway up to the 20 th rung until the edge of
the exit door ' 2311;
Distance from the 4th rung up to the exit door ' 21;
Distance from the 5th rung up to the exit door ' 1911;
Length of one rung including railpost ' 34;
Space between two rungs of stairway ' 9;
Width of each rung ' 11-1/2;
Length of each rung (end to end) ' 29:
Height of railpost from edge of rung to railing ' 25.
(underlining supplied)[20]
The Sandiganbayan again exhaustively analyzed and discussed the forensic
evidence in its resolution dated November 15, 1990 denying the motion for
reconsideration filed by the convicted accused. The court held:
The Autopsy Report No. N-83-2236, Exhibit 'NNNN-2-t-2 indicated a downward
trajectory of the fatal bullet when it stated that the fatal bullet was 'forward,
downward, and medially . . .
xxx
II
The wound of entrance having been at a higher elevation than the wound of exit,
there can be no other conclusion but that the trajectory was downward. The fatal
bullet, whether it be a Smith and Wesson Caliber .357 magnum revolver or a .45
caliber, must have traveled at a fast rate of speed and it stands to reason that it
took a straight path from the wound of entrance to the wound of exit. A hole
indicating this straight path was proven to have existed. If, as contended on cross-
examination by Dr. Bienvenido Muoz, that the bullet was projected upwards, it
ought to have exited at the roof of the head. The theory that the fatal bullet was
deflected by a mere petrous bone is inconceivable.
III
Since the wound of entrance appeared ovaloid and there is what is known as a
contusion collar which was widest at the superior portion, indicating an acute
angle of approach, a downward trajectory of the fatal bullet is conclusively
indicated. This phenomenon indicates that the muzzle of the fatal gun was at a
level higher than that of the point of entry of the fatal bullet.
IV
There was no hole from the petrous bone to the mandible where the fatal bullet
had exited and, thus, there is no support to the theory of Dr. Bienvenido Muoz
that the fatal bullet had hit the petrous bone on an upward trajectory and had been
deflected by the petrous bone towards the mandible. Dr. Juanito Billote's
testimony in this regard had amplified the matter with clarity.
xxx
These physical facts, notwithstanding the arguments and protestations of counsel
for the defense as now and heretofore avowed, compel the Court to maintain the
holding: (1) that the trajectory of the fatal bullet which hit and killed Senator
Benigno Aquino, Jr. was 'forward, downward and medially; (2) that the Senator
was shot by a person who stood at a higher elevation than he; and (3) that the
Senator was shot and killed by CIC Rogelio Moreno on the bridge stairs and not
on the tarmac, in conspiracy with the rest of the accused convicted herein.[21]
This Court affirmed said findings of the Sandiganbayan when it denied the
petition for review in its resolution of July 25, 1991. The Court ruled:
The Court has carefully considered and deliberated upon all the contentions of
the petitioners but finds no basis for the allegation that the respondent
Sandiganbayan has gravely erred in resolving the factual issues.
The attempt to place a constitutional dimension in the petition is a labor in vain.
Basically, only questions of fact are raised. Not only is it axiomatic that the
factual findings of the Sandiganbayan are final unless they fall within specifically
recognized exceptions to the rule but from the petition and its annexes alone, it is
readily apparent that the respondent Court correctly resolved the factual issues.
xxx
The trajectory of the fatal bullet, whether or not the victim was descending the
stairway or was on the tarmac when shot, the circumstances showing conspiracy,
the participants in the conspiracy, the individual roles of the accused and their
respective parts in the conspiracy, the absence of evidence against thirteen
accused and their co-accused Col. Vicente B. Tigas, Jr., the lack of credibility of
the witnesses against former Minister Jose D. Aspiras, Director Jesus Z. Singson,
Col. Arturo A. Custodio, Hermilo Gosuico, Major General Prospero Olivas, and
the shooting of Rolando Galman are all factual matters w[h]ich the respondent
court discussed with fairness and at length. The petitioners' insistence that a few
witnesses in their favor should be believed while that of some witnesses against
them should be discredited goes into the question of credibility of witnesses, a
matter which under the records of this petition is best left to the judgment of the
Sandiganbayan.[22]
The report of the forensic group essentially reiterates the theory presented
by the defense during the trial of the double murder case. Clearly, the report
is not newly discovered, but rather recently sought, which is not allowed by the
Rules.[23] If at all, it only serves to discredit the version of the prosecution which
had already been weighed and assessed, and thereafter upheld by the
Sandiganbayan.
The same is true with the statement of the alleged eyewitness, SPO4
Cantimbuhan. His narration merely corroborates the testimonies of other defense
witnesses during the trial that they saw Senator Aquino already walking on the
airport tarmac toward the AVSECOM van when a man in blue-gray uniform
darted from behind and fired at the back of the Senator's head.[24] The
Sandiganbayan, however, did not give weight to their account as it found the
testimonies of prosecution eyewitnesses Rebecca Quijano and Jessie Barcelona
more credible. Quijano and Barcelona testified that they saw the soldier behind
Senator Aquino on the stairway aim and fire a gun on the latter's nape. As earlier
quoted, the Sandiganbayan found their testimonies to be more consistent with the
physical evidence. SPO4 Cantimbuhan's testimony will not in any way alter the
court's decision in view of the eyewitness account of Quijano and Barcelona,
taken together with the physical evidence presented during the trial. Certainly, a
new trial will only be allowed if the new evidence is of such weight that it
would probably change the judgment if admitted. [25] Also, new trial will
not be granted if the new evidence is merely cumulative, corroborative or
impeaching.
As additional support to their motion for new trial, petitioners also claim that they
were denied due process because they were deprived of adequate legal assistance
by counsel. 'We are not persuaded. The records will bear out that petitioners were
ably represented by Atty. Rodolfo U. Jimenez during the trial and when the case
was elevated to this Court. An experienced lawyer in criminal cases, Atty.
Jimenez vigorously defended the petitioners' cause throughout the entire
proceedings. The records show that the defense presented a substantial number
of witnesses and exhibits during the trial. After the Sandiganbayan rendered its
decision, Atty. Jimenez filed a petition for review with this Court, invoking all
conceivable grounds to acquit the petitioners. When the Court denied the petition
for review, he again filed a motion for reconsideration exhausting his deep
reservoir of legal talent. We therefore find petitioners' claim to be unblushingly
unsubstantiated. We note that they did not allege any specific facts in their present
motion to show that Atty. Jimenez had been remiss in his duties as counsel.
Petitioners are therefore bound by the acts and decisions of their counsel as
regards the conduct of the case. The general rule is that the client is bound by the
action of his counsel in the conduct of his case and cannot be heard to complain
that the result of the litigation might have been different had his counsel
proceeded differently.[26] We held in People vs. Umali:[27]
In criminal as well as civil cases, it has frequently been held that the fact that
blunders and mistakes may have been made in the conduct of the proceedings in
the trial court, as a result of the ignorance, inexperience, or incompetence of
counsel, does not furnish a ground for a new trial.
If such grounds were to be admitted as reasons for reopening cases, there would
never be an end to a suit so long as new counsel could be employed who could
allege and show that prior counsel had not been sufficiently diligent, or
experienced, or learned.
So it has been held that mistakes of attorneys as to the competency of a witness,
the sufficiency, relevancy, materiality, or immateriality of a certain evidence, the
proper defense, or the burden of proof are not proper grounds for a new trial; and
in general the client is bound by the action of his counsel in the conduct of his
case, and can not be heard to complain that the result of the litigation might have
been different had counsel proceeded differently. (citations omitted)
Finally, we are not moved by petitioners' assertion that the forensic evidence may
have been manipulated and misinterpreted during the trial of the case. Again,
petitioners did not allege concrete facts to support their crass claim. Hence, we
find the same to be unfounded and purely speculative.
IN VIEW WHEREOF, the motion is DENIED.
SO ORDERED.
Note.—It has been held time and again that blunders and mistakes made in the
conduct of the proceedings in the trial court as a result of the ignorance,
inexperience or incompetence of counsel do not qualify as a ground for new trial.
(Rivera vs. Court of Appeals, 405 SCRA 61 [2003]) Custodio vs. Sandiganbayan,
453 SCRA 24, G.R. Nos. 96027-28 March 8, 2005
G.R. No. 130612. May 11, 1999.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERNARDINO
DOMANTAY, @ “JUNIOR OTOT,” accused-appellant.
Constitutional Law; Custodial Investigations; R.A. No. 7438 has extended the
constitutional guarantee to situations in which an individual has not been
formally arrested but has merely been “invited” for questioning.—This provision
applies to the stage of custodial investigation, that is, “when the investigation is
no longer a general inquiry into an unsolved crime but starts to focus on a
particular person as a suspect.” R.A. No. 7438 has extended the constitutional
guarantee to situations in which an individual has not been formally arrested but
has merely been “invited” for questioning.
Same; Same; Requirements for Admissibility of Extrajudicial Confessions.—
Decisions of this Court hold that for an extrajudicial confession to be admissible,
it must satisfy the following requirements: (1) it must be voluntary; (2) it must be
made with the assistance of competent and independent counsel; (3) it must be
express; and (4) it must be in writing.
Same; Same; Exclusionary Rule; “Fruit of the Poisonous Tree” Doctrine;
Words and Phrases; Once the primary source (the “tree”) is shown to have been
unlawfully obtained, any secondary or derivative evidence (the “fruit”) derived
from it is also inadmissible.—But though he waived the assistance of counsel,
the waiver was neither put in writing nor made in the presence of counsel. For
this reason, the waiver is invalid and his confession is inadmissible. SPO1
Espinoza’s testimony on the alleged confession of accused-appellant should have
been excluded by the trial court. So is the bayonet inadmissible in evidence,
being, as it were, the “fruit of the poisonous tree.” As explained in People v.
Alicando: . . . According to this rule, once the primary source (the “tree”) is
shown to have been unlawfully obtained, any secondary or derivative evidence
(the “fruit”) derived from it is also inadmissible. Stated otherwise, illegally seized
evidence is obtained as a direct result of the illegal act, whereas the “fruit of the
poisonous tree” is the indirect result of the same illegal act. The “fruit of the
poisonous tree” is at least once removed from the illegally seized evidence, but it
is equally inadmissible. The rule is based on the principle that evidence illegally
obtained by the State should not be used to gain other evidence because the
originally illegally obtained evidence taints all evidence subsequently obtained.
Same; Same; A suspect’s confession to a radio reporter is admissible.—We
agree with the Solicitor General, however, that accused-appellant’s confession to
the radio reporter, Celso Manuel, is admissible. In People v. Andan, the accused
in a rape with homicide case confessed to the crime during interviews with the
media. In holding the confession admissible, despite the fact that the accused
gave his answers without the assistance of counsel, this Court said: [A]ppellant’s
[oral] confessions to the newsmen are not covered by Section 12(1) and (3) of
Article III of the Constitution. The Bill of Rights does not concern itself with the
relation between a private individual and another individual. It governs the
relationship between the individual and the State. The prohibitions therein are
primarily addressed to the State and its agents.
Same; Same; A confession to a radio reporter is admissible where it was not
shown that said reporter was acting for the police or that the interview was
conducted under circumstances where it is apparent that the suspect confessed to
the killing out of fear.—Accused-appellant contends that “it is . . . not altogether
improbable for the police investigators to ask the police reporter (Manuel) to try
to elicit some incriminating information from the accused.” This is pure
conjecture. Although he testified that he had interviewed inmates before, there is
no evidence to show that Celso was a police beat reporter. Even assuming that he
was, it has not been shown that, in conducting the interview in question, his
purpose was to elicit incriminating information from accused-appellant. To the
contrary, the media are known to take an opposite stance against the government
by exposing official wrongdoings. Indeed, there is no showing that the radio
reporter was acting for the police or that the interview was conducted under
circumstances where it is apparent that accused-appellant confessed to the killing
out of fear. As already stated, the interview was conducted on October 23, 1996,
6 days after accused-appellant had already confessed to the killing to the police.
Criminal Law; Rape with Homicide; Aggravating Circumstances; Abuse of
Superior Strength; The killing was committed with the generic aggravating
circumstance of abuse of superior strength where the record shows that the victim
was six years old at the time of the killing, a child of small build, and could not
have put up much of a defense against accused’s assault, the latter being a fully
grown man of 29 years.—The killing was committed with the generic
aggravating circumstance of abuse of superior strength. The record shows that
the victim, Jennifer Domantay, was six years old at the time of the killing. She
was a child of small build, 46” in height. It is clear then that she could not have
put up much of a defense against accused-appellant’s assault, the latter being a
fully grown man of 29 years. Indeed, the physical evidence supports a finding of
abuse of superior strength: accused-appellant had a weapon, while the victim was
not shown to have had any; there were 38 stab wounds; and all the knife wounds
are located at the back of Jennifer’s body.
Same; Same; Same; Cruelty; The number of wounds is not a test for determining
whether there was cruelty as an aggravating circumstance—the test is whether
the accused deliberately and sadistically augmented the victim’s suffering thus,
there must be proof that the victim was made to agonize before the accused
rendered the blow which snuffed out her life.—But we think the lower court erred
in finding that the killing was committed with cruelty.The trial court appears to
have been led to this conclusion by the number of wounds inflicted on the victim.
But the number of wounds is not a test for determining whether there was cruelty
as an aggravating circumstance. “The test . . . is whether the accused deliberately
and sadistically augmented the victim’s suffering thus . . . there must be proof
that the victim was made to agonize before the [the accused] rendered the blow
which snuffed out [her] life.” In this case, there is no such proof of cruelty. Dr.
Bandonill testified that any of the major wounds on the victim’s back could have
caused her death as they penetrated her heart, lungs and liver, kidney and
intestines.
Same; Same; Words and Phrases; Carnal knowledge is defined as the act of a
man having sexual intercourse or sexual bodily connections with a woman.—As
the victim here was six years old, only carnal knowledge had to be proved to
establish rape. Carnal knowledge is defined as the act of a man having sexual
intercourse or sexual bodily connections with a woman. For this purpose, it is
enough if there was even the slightest contact of the male sex organ with the labia
of the victim’s genitalia. However, there must be proof, by direct or indirect
evidence, of such contact.
Same; Same; Standing alone, a physician’s finding that the hymen of the alleged
victim was lacerated does not prove rape.—Hymenal laceration is not necessary
to prove rape; neither does its presence prove its commission. As held in People
v. Ulili, a medical certificate or the testimony of the physician is presented not to
prove that the victim was raped but to show that the latter had lost her virginity.
Consequently, standing alone, a physician’s finding that the hymen of the alleged
victim was lacerated does not prove rape. It is only when this is corroborated by
other evidence proving carnal knowledge that rape may be deemed to have been
established.
Same; Same; In those instances where the Supreme Court sustained convictions
for rape with homicide based on purely circumstantial evidence, the prosecution
was able to present other tell-tale signs of rape such as the location and
description of the victim’s clothings, especially her undergarments, the position
of the body when found and the like.—This Court has sustained a number of
convictions for rape with homicide based on purely circumstantial evidence. In
those instances, however, the prosecution was able to present other tell-tale signs
of rape such as the location and description of the victim’s clothings, especially
her undergarments, the position of the body when found and the like. In People
v. Macalino, for instance, the Court affirmed a conviction for the rape of a two
year-old child on the basis of circumstantial evidence: The Court notes that the
testimony or medical opinion of Dr. Gajardo that the fresh laceration had been
produced by sexual intercourse is corroborated by the testimony given by
complainant Elizabeth that when she rushed upstairs upon hearing her daughter
suddenly cry out, she found appellant Macalino beside the child buttoning his
own pants and that she found some sticky fluid on the child’s buttocks and some
blood on her private part.
Same; Same; Considering the relative physical positions of the accused and the
victim in crimes of rape, the usual location of the external bodily injuries of the
victim is on the face, neck, and anterior portion of her body.—Considering the
relative physical positions of the accused and the victim in crimes of rape, the
usual location of the external bodily injuries of the victim is on the face, neck,
and anterior portion of her body. Although it is not unnatural to find contusions
on the posterior side, these are usually caused by the downward pressure on the
victim’s body during the sexual assault.It is unquestionably different when, as in
this case, allthe stab wounds (except for a minor cut in the lower left leg) had
their entry points at the back running from the upper left shoulder to the lower
right buttocks.
Same; Same; Complex Crimes; Evidence; In the special complex crime of rape
with homicide, both the rape and the homicide must be established beyond
reasonable doubt.—Even assuming that Jennifer had been raped, there is no
sufficient proof that it was accused-appellant who had raped her. He did not
confess to having raped the victim. From the foregoing, we cannot find that
accused-appellant also committed rape. In the special complex crime of rape with
homicide, both the rape and the homicide must be established beyond reasonable
doubt. People vs. Domantay, 307 SCRA 1, G.R. No. 130612 May 11, 1999
This case is here on appeal from the decision1 of the Regional Trial Court of
Dagupan City (Branch 57), finding accused-appellant guilty of rape with
homicide and sentencing him to death, and to indemnify the heirs of the victim
in the amount of P480,000.00, and to pay the costs.
The facts hark back to the afternoon of October 17, 1996, at around 4 oclock,
when the body of six-year old Jennifer Domantay was found sprawled amidst a
bamboo grove in Guilig, Malasiqui, Pangasinan. The childs body bore several
stab wounds. Jennifer had been missing since lunch time.
The medical examination conducted the following day by Dr. Ma. Fe Leticia
Macaranas, the rural health physician of Malasiqui, showed that Jennifer died of
multiple organ failure and hypovolemic shock secondary to 38 stab wounds at
the back. Dr. Macaranas found no lacerations or signs of inflammation of the
outer and inner labia and the vaginal walls of the victims genitalia, although the
vaginal canal easily admitted the little finger with minimal resistance. Noting
possible commission of acts of lasciviousness, Dr. Macaranas recommended an
autopsy by a medico-legal expert of the NBI.2
The investigation by the Malasiqui police pointed to accused-appellant
Bernardino Domantay, a cousin of the victims grandfather, as the lone suspect in
the gruesome crime. At around 6:30 in the evening of that day, police officers
Montemayor, de la Cruz, and de Guzman of the Malasiqui Philippine National
Police (PNP) picked up accused-appellant at the Malasiqui public market and
took him to the police station where accused-appellant, upon questioning by
SPO1 Antonio Espinoza, confessed to killing Jennifer Domantay. He likewise
disclosed that at around 3:30 that afternoon, he had given the fatal weapon used,
a bayonet, to Elsa and Jorge Casingal, his aunt and uncle respectively, in
Poblacion Sur, Bayambang, Pangasinan. The next day, October 18, 1996, SPO1
Espinoza and another policeman took accused-appellant to Bayambang and
recovered the bayonet from a tricycle belonging to the Casingal spouses. The
police officers executed a receipt to evidence the confiscation of the weapon. 3
On the basis of the post-mortem findings of Dr. Macaranas, SPO4 Juan Carpizo,
the Philippine National Police chief investigator at Malasiqui, filed, on October
21, 1996, a criminal complaint for murder against accused-appellant before the
Municipal Trial Court (MTC) of Malasiqui. On October 25, 1996, Dr. Ronald
Bandonill, medico-legal expert of the NBI, performed an autopsy on the
embalmed body of Jennifer. The result of his examination of the victims genitalia
indicated that the childs hymen had been completely lacerated on the right side.
Based on this finding, SPO4 Carpizo amended the criminal complaint against
accused-appellant to rape with homicide. Subsequently, the following
information was filed:
That on or about the 17th day of October, 1996, in the afternoon, in barangay
Guilig, Municipality of Malasiqui, province of Pangasinan, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, with
lewd design and armed with a bayonnete, did then and there, wilfully, unlawfully
and feloniously have sexual intercourse with Jennifer Domantay, a minor of 6
years old against her will and consent, and on the same occasion, the said accused
with intent to kill, then and there, wilfully, unlawfully and feloniously stab with
the use of a bayonnete, the said Jennifer Domantay, inflicting upon her multiple
stab wounds, which resulted to her death, to the damage and prejudice of her
heirs.
At the trial, the prosecution presented seven witnesses, namely, Edward, Jiezl,
Lorenzo, all surnamed Domantay, Joselito Mejia, Antonio Espinoza, Celso
Manuel, and Dr. Ronald Bandonill, to establish its charge that accused-appellant
had raped and killed Jennifer Domantay.
Edward Domantay testified that in the morning of October 17, 1996, accused-
appellant and his two brothers-in-law, Jaime Caballero and Daudencio Macasaeb,
had a round of drinks in front of the latters house in Guilig, Malasiqui,
Pangasinan. Edward Domantay said that he was in front of Macasaebs house,
tending to some pigeons in his yard.5 After the group had consumed several
bottles of San Miguel gin, accused-appellant gave money to Edward Domantay
and asked him to buy two bottles of gin and a bottle of Sprite. 6 Edward said he
joined the group and sat between Daudencio Macasaeb and accused-
appellant.7 Edward said that accused-appellant, who, apparently had one too
many then, rolled up his shirt and said: No diad Antipolo tan L[i]pa et walay
massacre, diad Guilig wala, walay massacren kod dia, walay onakis-akis (In
Antipolo and Lipa, there were massacres; here in Guilig, there will also be a
massacre. I will massacre somebody here, and they will cry and cry). Edward
Domantay saw that tucked in the left side of accused-appellants waistline was a
bayonet without a cover handle.8 It was not the first time that Edward had seen
accused-appellant with the knife as the latter usually carried it with him.
Jiezl Domantay, 10, likewise testified. She said that, at about 2 oclock in the
afternoon on October 17, 1996, she and four other children were playing in front
of their house in Guilig, Malasiqui, Pangasinan. Jiezl saw accused-appellant and
Jennifer Domantay walking towards the bamboo grove of Amparo Domantay
where Jennifers body was later found. Accused-appellant was about two meters
ahead of Jennifer. The bamboo grove was about 8 to 10 meters from the house of
Jiezl Domantay.10
Lorenzo Domantay, a relative of the victim, corroborated Jiezls testimony that
accused-appellant had gone to Amparo Domantays bamboo grove in the
afternoon of October 17, 1996. Lorenzo said that that afternoon, on his way to
his farm, he saw accused-appellant about 30 meters away, standing at the spot in
the bamboo grove where Jennifers body was later found. Accused-appellant
appeared restless and worried as he kept looking around. However, as Lorenzo
was in a hurry, he did not try to find out why accused-appellant appeared to be
nervous.11
Prosecution witness Joselito Mejia, a tricycle driver, said that, in the afternoon of
October 17, 1996, he was about to take his lunch at home in Alacan, a
neighboring barangay about half a kilometer from Guilig, when accused-
appellant implored Mejia to take him to Malasiqui at once. Mejia told accused-
appellant that he was going to take his lunch first, but the latter pleaded with him,
saying they will not be gone for long. Mejia, therefore, agreed. Mejia noticed that
accused-appellant was nervous and afraid. Accused-appellant later changed his
mind. Instead of going to the town proper, he alighted near the Mormons church,
outside Malasiqui.12
In addition, the prosecution presented SPO1 Antonio Espinoza and Celso Manuel
who testified that, on separate occasions, accused-appellant had confessed to the
brutal killing of Jennifer Domantay.
SPO1 Espinoza testified that he investigated accused-appellant after the latter had
been brought to the Malasiqui police station in the evening of October 17, 1996.
Before he commenced his questioning, he apprised accused-appellant of his
constitutional right to remain silent and to have competent and independent
counsel, in English, which was later translated into Pangasinense.13 According to
SPO1 Espinoza, accused-appellant agreed to answer the questions of the
investigator even in the absence of counsel and admitted killing the victim.
Accused-appellant also disclosed the location of the bayonet he used in killing
the victim.14 On cross-examination, Espinoza admitted that at no time during the
course of his questioning was accused-appellant assisted by counsel. Neither was
accused-appellants confession reduced in writing.15 Espinozas testimony was
admitted by the trial court over the objection of the defense.
Celso Manuel, for his part, testified that he is a radio reporter of station DWPR,
an AM station based in Dagupan City. He covers the third district of Pangasinan,
including Malasiqui. Sometime in October 1996, an uncle of the victim came to
Dagupan City and informed the station about Jennifer Domantays case.16 On
October 23, 1996, Manuel went to Malasiqui to interview accused-appellant who
was then detained in the municipal jail. He described what transpired during the
interview thus:17
PROS. QUINIT:
Q Did you introduce yourself as a media practitioner?
A Yes, sir.
Q How did you introduce yourself to the accused?
A I showed to Bernardino Domantay alias Junior Otot my I.D. card and I
presented myself as a media practitioner with my tape recorder [in] my hand, sir.
Q What was his reaction to your request for an interview?
A He was willing to state what had happened, sir.
Q What are those matters which you brought out in that interview with the
accused Bernardino Domantay alias Junior Otot?
A I asked him what was his purpose for human interests sake as a reporter, why
did he commit that alleged crime. And I asked also if he committed the crime and
he answered yes. Thats it.
....
PROS. QUINIT:
Q You mentioned about accused admitting to you on the commi[ssion] of the
crime, how did you ask him that?
A I asked him very politely.
Q More or less what have you asked him on that particular matter?
A I asked Junior Otot, Bernardino Domantay, Kung pinagsisisihan mo ba ang
iyong ginawa? Opo sabi niya, Ibig mo bang sabihin Jun, ikaw ang pumatay kay
Jennifer?, Ako nga po. The [l]ast part of my interview, Kung nakikinig ang mga
magulang ni Jennifer, ano ang gusto mong iparating?, kung gusto nilang
makamtan ang hustisya ay tatanggapin ko. That is what he said, and I also asked
Junior Otot, what was his purpose, and he said, it was about the boundary dispute,
and he used that little girl in his revenge.
On cross-examination, Manuel explained that the interview was conducted in the
jail, about two to three meters away from the police station. An uncle of the victim
was with him and the nearest policemen present were about two to three meters
from him, including those who were in the radio room. 18 There was no lawyer
present. Before interviewing accused-appellant, Manuel said he talked to the
chief of police and asked permission to interview accused-appellant.19 On
questioning by the court, Manuel said that it was the first time he had been called
to testify regarding an interview he had conducted. 20 As in the case of the
testimony of SPO1 Espinoza, the defense objected to the admission of Manuels
testimony, but the lower court allowed it.
Dr. Bandonill, the NBI medico-legal who conducted an autopsy of the victim on
October 25, 1996, testified that Jennifer Domantay died as a result of the
numerous stab wounds she sustained on her back,21 the average depth of which
was six inches.22 He opined that the wounds were probably caused by a pointed
sharp-edged instrument.23 He also noted contusions on the forehead, neck, and
breast bone of the victim.24 As for the results of the genital examination of the
victim, Dr. Bandonill said he found that the laceration on the right side of the
hymen was caused within 24 hours of her death. He added that the genital area
showed signs of inflammation.25
Pacifico Bulatao, the photographer who took the pictures of the scene of the crime
and of the victim after the latters body was brought to her parents house,
identified and authenticated the five pictures (Exhibits A, B, C, D, and E) offered
by the prosecution.
The defense then presented accused-appellant as its lone witness. Accused-
appellant denied the allegations against him. He testified he is an uncle of Jennifer
Domantay (he and her grandfather are cousins) and that he worked as a janitor at
the Malasiqui Municipal Hall. He said that at around 1 oclock in the afternoon of
October 17, 1996, he was bathing his pigs outside the house of his brother-in-law
Daudencio Macasaeb in Guilig, Malasiqui, Pangasinan. He confirmed that
Daudencio was then having drinks in front of his (Macasaebs) house. Accused-
appellant claimed, however, that he did not join in the drinking and that it was
Edward Domantay, whom the prosecution had presented as witness, and a certain
Jaime Caballero who joined the party. He also claimed that it was he whom
Macasaeb had requested to buy some more liquor, for which reason he gave
money to Edward Domantay so that the latter could get two bottles of gin, a bottle
of Sprite, and a pack of cigarettes.26 He denied Edward Domantays claim that he
(accused-appellant) had raised his shirt to show a bayonet tucked in his waistline
and that he had said he would massacre someone in Guilig.27
Accused-appellant also confirmed that, at about 2 oclock in the afternoon, he
went to Alacan passing on the trail beside the bamboo grove of Amparo
Domantay. But he said he did not know that Jennifer Domantay was following
him. He further confirmed that in Alacan, he took a tricycle to Malasiqui. The
tricycle was driven by Joselito Mejia. He said he alighted near the Mormon
church, just outside of the town proper of Malasiqui to meet his brother. As his
brother did not come, accused-appellant proceeded to town and reported for
work. That night, while he was in the Malasiqui public market, he was picked up
by three policemen and brought to the Malasiqui police station where he was
interrogated by SPO1 Espinoza regarding the killing of Jennifer Domantay. He
denied having owned to the killing of Jennifer Domantay to SPO1 Espinoza. He
denied he had a grudge against the victims parents because of a boundary
dispute.28 With respect to his extrajudicial confession to Celso Manuel, he
admitted that he had been interviewed by the latter, but he denied that he ever
admitted anything to the former.29
As already stated, the trial court found accused-appellant guilty as charged. The
dispositive portion of its decision reads:30
WHEREFORE, in light of all the foregoing, the Court hereby finds the accused,
Bernardino Domantay @ Junior Otot guilty beyond reasonable doubt with the
crime of Rape with Homicide defined and penalized under Article 335 of the
Revised Penal Code in relation and as amended by Republic Act No. 7659 and
accordingly, the Court hereby sentences him to suffer the penalty of death by
lethal injection, and to indemnify the heirs of the victim in the total amount of
Four Hundred Eighty Thousand Pesos (P480,000.00), 31 and to pay the costs.
SO ORDERED.
In this appeal, accused-appellant alleges that:32
I.
THE COURT A QUO ERRED IN APPRECIATING THE EXTRAJUDICIAL
CONFESSION[S] MADE BY THE ACCUSED-APPELLANT.
II.
THE COURT A QUO ERRED IN CONVICTING THE ACCUSED DESPITE
FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.
First. Accused-appellant contends that his alleged confessions to SPO1 Antonio
Espinoza and Celso Manuel are inadmissible in evidence because they had been
obtained in violation of Art. III, 12(1) of the Constitution and that, with these
vital pieces of evidence excluded, the remaining proof of his alleged guilt,
consisting of circumstantial evidence, is inadequate to establish his guilt beyond
reasonable doubt.33
Art. III, 12 of the Constitution in part provides:
(1) Any person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
....
(3) Any confession or admission obtained in violation of this section or section
17 hereof shall be inadmissible in evidence.
This provision applies to the stage of custodial investigation, that is, when the
investigation is no longer a general inquiry into an unsolved crime but starts to
focus on a particular person as a suspect.34 R.A. No. 7438 has extended the
constitutional guarantee to situations in which an individual has not been
formally arrested but has merely been invited for
questioning.35cräläwvirtualibräry
Decisions36 of this Court hold that for an extrajudicial confession to be
admissible, it must satisfy the following requirements: (1) it must be voluntary;
(2) it must be made with the assistance of competent and independent counsel;
(3) it must be express; and (4) it must be in writing.
In the case at bar, when accused-appellant was brought to the Malasiqui police
station in the evening of October 17, 1996,37 he was already a suspect, in fact the
only one, in the brutal slaying of Jennifer Domantay. He was, therefore, already
under custodial investigation and the rights guaranteed in Art. III, 12(1) of the
Constitution applied to him. SPO1 Espinoza narrated what transpired during
accused-appellants interrogation:38
[I] interrogated Bernardino Domantay, prior to the interrogation conducted to
him, I informed him of his constitutional right as follows; that he has the right to
remain silent; that he has the right to a competent lawyer of his own choice and
if he can not afford [a counsel] then he will be provided with one, and further
informed [him] that all he will say will be reduced into writing and will be used
the same in the proceedings of the case, but he told me that he will cooperate
even in the absence of his counsel; that he admitted to me that he killed Jennifer
Domantay, and he revealed also the weapon used [and] where he gave [it] to.
But though he waived the assistance of counsel, the waiver was neither put in
writing nor made in the presence of counsel. For this reason, the waiver is invalid
and his confession is inadmissible. SPO1 Espinozas testimony on the alleged
confession of accused-appellant should have been excluded by the trial court. So
is the bayonet inadmissible in evidence, being, as it were, the fruit of the
poisonous tree. As explained in People v. Alicando:39
. . . According to this rule, once the primary source (the tree) is shown to have
been unlawfully obtained, any secondary or derivative evidence (the fruit)
derived from it is also inadmissible. Stated otherwise, illegally seized evidence is
obtained as a direct result of the illegal act, whereas the "fruit of the poisonous
tree is at least once removed from the illegally seized evidence, but it is equally
inadmissible. The rule is based on the principle that evidence illegally obtained
by the State should not be used to gain other evidence because the originally
illegal obtained evidence taints all evidence subsequently obtained.
We agree with the Solicitor General, however, that accused-appellants confession
to the radio reporter, Celso Manuel, is admissible. In People v. Andan,40 the
accused in a rape with homicide case confessed to the crime during interviews
with the media. In holding the confession admissible, despite the fact that the
accused gave his answers without the assistance of counsel, this Court
said:41cräläwvirtualibräry
[A]ppellants [oral] confessions to the newsmen are not covered by Section 12(1)
and (3) of Article III of the Constitution. The Bill of Rights does not concern
itself with the relation between a private individual and another individual. It
governs the relationship between the individual and the State. The prohibitions
therein are primarily addressed to the State and its agents.
Accused-appellant claims, however, that the atmosphere in the jail when he was
interviewed was tense and intimidating and was similar to that which prevails in
a custodial investigation.42 We are not persuaded. Accused-appellant was
interviewed while he was inside his cell. The interviewer stayed outside the cell
and the only person besides him was an uncle of the victim. Accused-appellant
could have refused to be interviewed, but instead, he agreed. He answered
questions freely and spontaneously. According to Celso Manuel, he said he was
willing to accept the consequences of his act.
Celso Manuel admitted that there were indeed some police officers around
because about two to three meters from the jail were the police station and the
radio room.43 We do not think the presence of the police officers exerted any
undue pressure or influence on accused-appellant and coerced him into giving his
confession.
Accused-appellant contends that it is . . . not altogether improbable for the police
investigators to ask the police reporter (Manuel) to try to elicit some
incriminating information from the accused.44 This is pure conjecture. Although
he testified that he had interviewed inmates before, there is no evidence to show
that Celso was a police beat reporter. Even assuming that he was, it has not been
shown that, in conducting the interview in question, his purpose was to elicit
incriminating information from accused-appellant. To the contrary, the media are
known to take an opposite stance against the government by exposing official
wrongdoings.
Indeed, there is no showing that the radio reporter was acting for the police or
that the interview was conducted under circumstances where it is apparent that
accused-appellant confessed to the killing out of fear. As already stated, the
interview was conducted on October 23, 1996, 6 days after accused-appellant had
already confessed to the killing to the police.
Accused-appellants extrajudicial confession is corroborated by evidence
of corpus delicti, namely, the fact of death of Jennifer Domantay. In addition, the
circumstantial evidence furnished by the other prosecution witnesses dovetails in
material points with his confession. He was seen walking toward the bamboo
grove, followed by the victim. Later, he was seen standing near the bamboo grove
where the childs body was found. Rule 133 of the Revised Rules on Evidence
provides:
3. Extrajudicial confession, not sufficient ground for conviction. An extrajudicial
confession made by an accused, shall not be sufficient ground for conviction,
unless corroborated by evidence of corpus delicti.
4. Evidence necessary in treason cases. No person charged with treason shall be
convicted unless on the testimony of two witnesses to the same overt act, or on
confession in open court.
Accused-appellant argues that it was improbable for a brutal killing to have been
committed without the children who were playing about eight to ten meters from
Amparo Domantays grove, where the crime took place, having heard any
commotion.45 The contention has no merit. Accused-appellant could have
covered the young childs mouth to prevent her from making any sound. In fact,
Dr. Bandonill noted a five by two inch (5 x 2) contusion on the left side of the
victims forehead, which he said could have been caused by a hard blunt
instrument or by impact as her head hit the ground.46 The blow could have
rendered her unconscious, thus precluding her from shouting or crying.
Accused-appellant also contends that the testimony of Jiezl Domantay
contradicts that of Lorenzo Domantay because while Jiezl said she had seen
accused-appellant walking towards the bamboo grove, followed by the victim, at
around 2 oclock in the afternoon on October 17, 1996, Lorenzo said he saw
accused-appellant standing near the bamboo grove at about the same time.
These witnesses, however, did not testify concerning what they saw at exactly
the same time. What they told the court was what they had seen at around 2 oclock
in the afternoon. There could have been a difference in time, however little it was,
between the time Jiezl saw accused-appellant and the victim walking and the time
Lorenzo saw accused-appellant near the place where the victims body was later
found. Far from contradicting each other, these witnesses confirmed what each
had said each one saw. What is striking about their testimonies is that while Jiezl
said she saw accused-appellant going toward the bamboo grove followed by the
victim at around 2 oclock in the afternoon on October 17, 1996, Lorenzo said he
had seen accused-appellant near the bamboo grove at around that time. He
described accused-appellant as nervous and worried. There is no reason to doubt
the claim of these witnesses. Lorenzo is a relative of accused-appellant. There is
no reason he would testify falsely against the latter. Jiezl, on the other hand, is
also surnamed Domantay and could also be related to accused-appellant and has
not been shown to have any reason to testify falsely against accused-appellant.
At the time of the incident, she was only 10 years old.
For the foregoing reasons, the Court is convinced of accused-appellants guilt with
respect to the killing of the child. It is clear that the prosecution has proven
beyond reasonable doubt that accused-appellant is guilty of homicide. Art. 249
of the Revised Penal Code provides:
Any person who, not falling within the provisions of Article 246 [parricide] shall
kill another without the attendance of any of the circumstances enumerated in the
next preceding article [murder], shall be deemed guilty of homicide and be
punished by reclusion temporal.
The killing was committed with the generic aggravating circumstance of abuse
of superior strength. The record shows that the victim, Jennifer Domantay, was
six years old at the time of the killing. She was a child of small build, 46 in
height.47 It is clear then that she could not have put up much of a defense against
accused-appellants assault, the latter being a fully grown man of 29 years. Indeed,
the physical evidence supports a finding of abuse of superior strength: accused-
appellant had a weapon, while the victim was not shown to have had any; there
were 38 stab wounds; and all the knife wounds are located at the back of Jennifers
body.
But we think the lower court erred in finding that the killing was committed with
cruelty.48 The trial court appears to have been led to this conclusion by the
number of wounds inflicted on the victim. But the number of wounds is not a test
for determining whether there was cruelty as an aggravating circumstance. 49 The
test . . . is whether the accused deliberately and sadistically augmented the victims
suffering thus . . . there must be proof that the victim was made to agonize before
the [the accused] rendered the blow which snuffed out [her] life. 50 In this case,
there is no such proof of cruelty. Dr. Bandonill testified that any of the major
wounds on the victims back could have caused her death as they penetrated her
heart, lungs and liver, kidney and intestines.51cräläwvirtualibräry
Second. There is, however, no sufficient evidence to hold accused-appellant
guilty of raping Jennifer Domantay. Art. 335 of the Revised Penal Code, as
amended, in part provides:
ART. 335. When and how rape is committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances.
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
As the victim here was six years old, only carnal knowledge had to be proved to
establish rape. Carnal knowledge is defined as the act of a man having sexual
intercourse or sexual bodily connections with a woman. 52 For this purpose, it is
enough if there was even the slightest contact of the male sex organ with the labia
of the victims genitalia.53 However, there must be proof, by direct or indirect
evidence, of such contact.
Dr. Ronald Bandonills report on the genital examination he had performed on the
deceased reads:54cräläwvirtualibräry
GENITAL EXAMINATION; showed a complete laceration of the right side of
the hymen. The surrounding genital area shows signs of inflamation.
....
REMARKS: 1) Findings at the genital area indicate the probability of penetration
of that area by a hard, rigid instrument.
Hymenal laceration is not necessary to prove rape;55 neither does its presence
prove its commission. As held in People v. Ulili,56 a medical certificate or the
testimony of the physician is presented not to prove that the victim was raped but
to show that the latter had lost her virginity. Consequently, standing alone, a
physicians finding that the hymen of the alleged victim was lacerated does not
prove rape. It is only when this is corroborated by other evidence proving carnal
knowledge that rape may be deemed to have been
established.57cräläwvirtualibräry
This conclusion is based on the medically accepted fact that a hymenal tear may
be caused by objects other than the male sex organ58 or may arise from other
causes.59 Dr. Bandonill himself admitted this. He testified that the right side of
the victims hymen had been completely lacerated while the surrounding genital
area showed signs of inflammation.60 He opined that the laceration had been
inflicted within 24 hours of the victims death and that the inflammation was due
to a trauma in that area.61 When asked by the private prosecutor whether the
lacerations of the hymen could have been caused by the insertion of a male organ
he said this was possible. But he also said when questioned by the defense that
the lacerations could have been caused by something blunt other than the male
organ. Thus, he testified:62cräläwvirtualibräry
PROS. F. QUINIT:
Q Now, what might have caused the complete laceration of the right side of the
hymen, doctor?
A Well, sir, if you look at my report there is a remark and it says there; findings
at the genital area indicated the probability of penetration of that area by a hard
rigid instrument.
Q Could it have been caused by a human organ?
A If the human male organ is erect, fully erect and hard then it is possible, sir.
....
ATTY. VALDEZ:
Q In your remarks; finding at the genital area indicates the probability of
penetration of that area by a hard rigid instrument, this may have also been caused
by a dagger used in the killing of Jennifer Domantay is that correct?
A Well, sir when I say hard rigid instrument it should not be sharp pointed and
sharp rigid, it should be a hard bl[u]nt instrument.
Q Do you consider a bolo a bl[u]nt instrument, or a dagger?
A The dagger is a sharp rigid but it is not a bl[u]nt instrument, sir.
Q This Genital Examination showed a complete laceration of the right side of the
hymen, this may have been possibly caused by a dagger, is it not?
A No, sir. I wont say that this would have been caused by a dagger, because a
dagger would have made at its incision . . . not a laceration, sir.
Q But this laceration may also have been caused by other factors other the human
male organ, is that correct?
A A hard bl[u]nt instrument, sir could show.
Q My question is other than the human male organ?
A Possible, sir.
....
COURT:
Q You mentioned that the hymen was lacerated on the right side?
A Yes, your Honor.
Q And if there is a complete erection by a human organ is this possible that the
laceration can only be on the right side of the hymen?
A Yes, your Honor, its possible.
Q How about if the penetration was done by a finger, was it the same as the
human organ?
A Well, it depends on the size of the finger that penetrat[es] the organ, if the
finger is small it could the superficial laceration, and if the finger is large then it
is possible your honor.
Q How about two fingers?
A Possible, sir.
To be sure, this Court has sustained a number of convictions for rape with
homicide based on purely circumstantial evidence. In those instances, however,
the prosecution was able to present other tell-tale signs of rape such as the
location and description of the victims clothings, especially her undergarments,
the position of the body when found and the like. 63 In People v. Macalino,64 for
instance, the Court affirmed a conviction for the rape of a two year-old child on
the basis of circumstantial evidence:65
The Court notes that the testimony or medical opinion of Dr. Gajardo that the
fresh laceration had been produced by sexual intercourse is corroborated by the
testimony given by complainant Elizabeth that when she rushed upstairs upon
hearing her daughter suddenly cry out, she found appellant Macalino beside the
child buttoning his own pants and that she found some sticky fluid on the childs
buttocks and some blood on her private part. (Emphasis in the original)
In contrast, in the case at bar, there is no circumstantial evidence from which to
infer that accused-appellant sexually abused the victim. The only circumstance
from which such inference might be made is that accused-appellant was seen with
the victim walking toward the place where the girls body was found. Maybe he
raped the girl. Maybe he did not. Maybe he simply inserted a blunt object into
her organ, thus causing the lacerations in the hymen. Otherwise, there is no
circumstance from which it might reasonably be inferred that he abused her, e.g.,
that he was zipping up his pants, that there was spermatozoa in the girls vaginal
canal.
Indeed, the very autopsy report of Dr. Bandonill militates against the finding of
rape. In describing the stab wounds on the body of the victim, he
testified:66cräläwvirtualibräry
[A]fter examining the body I took note that there were several stab wounds . .
. these were all found at the back area sir . . . extending from the back shoulder
down to the lower back area from the left to the right.
Considering the relative physical positions of the accused and the victim in
crimes of rape, the usual location of the external bodily injuries of the victim is
on the face,67 neck,68 and anterior portion69 of her body. Although it is not
unnatural to find contusions on the posterior side, these are usually caused by the
downward pressure on the victims body during the sexual assault. 70 It is
unquestionably different when, as in this case, all the stab wounds (except for a
minor cut in the lower left leg) had their entry points at the back running from the
upper left shoulder to the lower right buttocks.
It is noteworthy that the deceased was fully clothed in blue shorts and white shirt
when her body was brought to her parents house immediately after it was
found.71 Furthermore, there is a huge bloodstain in the back portion of her
shorts.72 This must be because she was wearing this piece of clothing when the
stab wounds were inflicted or immediately thereafter, thus allowing the blood to
seep into her shorts to such an extent. As accused-appellant would naturally have
to pull down the girls lower garments in order to consummate the rape, then, he
must have, regardless of when the stab wounds were inflicted, pulled up the
victims shorts and undergarments after the alleged rape, otherwise, the victims
shorts would not have been stained so extensively. Again, this is contrary to
ordinary human experience.
Even assuming that Jennifer had been raped, there is no sufficient proof that it
was accused-appellant who had raped her. He did not confess to having raped the
victim.
From the foregoing, we cannot find that accused-appellant also committed rape.
In the special complex crime of rape with homicide, both the rape and the
homicide must be established beyond reasonable doubt.73cräläwvirtualibräry
Third. The trial court ordered accused-appellant to pay the heirs of Jennifer
Domantay the amount of P30,000.00 as actual damages. However, the list of
expenses produced by the victims father, Jaime Domantay, only
totaled P28,430.00. Of this amount, only P12,000.00 was supported by a receipt.
Art. 2199 of the Civil Code provides that a party may recover actual or
compensatory damages only for such loss as he has duly proved. Therefore, the
award of actual damages should be reduced to P12,000.00.
In addition, the heirs of Jennifer Domantay are entitled to recover exemplary
damages in view of the presence of the aggravating circumstance of abuse of
superior strength. Art. 2230 of the Civil Code provides for the payment of
exemplary damages when the crime is committed with one or more aggravating
circumstance. An amount of P25,000.00 is deemed appropriate.74
In accordance with our rulings in People v. Robles75 and People v. Mengote,76 the
indemnity should be fixed at P50,000.00 and the moral damages at P50,000.00.77
WHEREFORE, the judgment of the trial court is SET ASIDE and another one is
rendered FINDING accused-appellant guilty of homicide with the aggravating
circumstance of abuse of superior strength and sentencing him to a prison term
of 12 years of prision mayor, as minimum, to 20 years of reclusion temporal, as
maximum, and ORDERING him to pay the heirs of Jennifer Domantay the
amounts of P50,000.00, as indemnity, P50,000.00, as moral
damages, P25,000.00, as exemplary damages, and P12,000.00, as actual
damages, and the costs.
SO ORDERED.
Notes.—Statements made by the accused pertaining to stolen pieces of jewelry
are inadmissible in evidence where these were taken in violation of his rights to
counsel and to remain silent, and the pieces of jewelry recovered cannot be used
also against him since they are fruits of the poisonous tree. (People vs. Bonola,
274 SCRA 238 [1997])
Evidence secured on the occasion of an unreasonable search and seizure is tainted
and should be excluded for being the proverbial fruit of a poisonous tree. (People
vs. Montilla, 285 SCRA 703 [1998]) People vs. Domantay, 307 SCRA 1, G.R.
No. 130612 May 11, 1999
 RULE 129-Secs. 1,2 & 3
Judicial Notice
A.M. No. RTJ-92-876. September 19, 1994.
STATE PROSECUTORS, complainants, vs. JUDGE MANUEL T. MURO,
Regional Trial Court, Branch 54, Manila, respondent.
Remedial Law; Evidence; Judicial Notice; Doctrine of judicial notice rests on the
wisdom and discretion of the courts.—The doctrine of judicial notice rests on the
wisdom and discretion of the courts. The power to take judicial notice is to be
exercised by courts with caution; care must be taken that the requisite notoriety
exists; and every reasonable doubt on the subject should be promptly resolved in
the negative.
Same; Same; Same; Requisites of Judicial Notice.—Generally speaking, matters
of judicial notice have three material requisites: (1) the matter must be one of
common and general knowledge; (2) it must be well and authoritatively settled
and not doubtful or uncertain; and (3) it must be known to be within the limits of
the jurisdiction of the court. The principal guide in determining what facts may
be assumed to be judicially known is that of notoriety. Hence, it can be said that
judicial notice is limited to facts evidenced by public records and facts of general
notoriety.
Same; Same; Same; Judicial cognizance is taken only of those matters which are
“commonly” known.—To say that a court will take judicial notice of a fact is
merely another way of saying that the usual form of evidence will be dispensed
with if knowledge of the fact can be otherwise acquired. This is because the court
assumes that the matter is so notorious that it will not be disputed. But judicial
notice is not judicial knowledge. The mere personal knowledge of the judge is
not the judicial knowledge of the court, and he is not authorized to make his
individual knowledge of a fact, not generally or professionally known, the basis
of his action. Judicial cognizance is taken only of those matters which are
“commonly” known.
Same; Same; Same; Facts which are universally known, and which may be found
in encyclopedias, dictionaries and other publications, are judicially noticed,
provided they are of such universal notoriety and so generally understood.—
Things of “common knowledge,” of which courts take judicial notice, may be
matters coming to the knowledge of men generally in the course of the ordinary
experiences of life, or they may be matters which are generally accepted by
mankind as true and are capable of ready and unquestioned demonstration. Thus,
facts which are universally known, and which may be found in encyclopedias,
dictionaries or other publications, are judicially noticed, provided they are of such
universal notoriety and so generally understood that they may be regarded as
forming part of the common knowledge of every person.
Same; Same; Same; Judicial notice cannot be taken of a statute before it becomes
effective. A law which is not yet in force and hence, still inexistent, cannot be of
common knowledge capable of ready and unquestionable demonstration.—
Respondent judge, in the guise of exercising discretion and on the basis of a mere
newspaper account which is sometimes even referred to as hearsay evidence
twice removed, took judicial notice of the supposed lifting of foreign exchange
controls, a matter which was not and cannot be considered of common knowledge
or of general notoriety. Worse, he took cognizance of an administrative
regulation which was not yet in force when the order of dismissal was issued.
Jurisprudence dictates that judicial notice cannot be taken of a statute before it
becomes effective. The reason is simple. A law which is not yet in force and
hence, still inexistent, cannot be of common knowledge capable of ready and
unquestionable demonstration, which is one of the requirements before a court
can take judicial notice of a fact.
Same; Same; Same.—Evidently, it was impossible for respondent judge, and it
was definitely not proper for him, to have taken cognizance of CB Circular No.
1353, when the same was not yet in force at the time the improvident order of
dismissal was issued.
Same; Same; Same; Dismissal of the eleven criminal cases without a motion to
quash having been filed by the accused, and without at least giving the
prosecution the basic opportunity to be heard on the matter is denial of due
process to the Government.—This is not a simple case of a misapplication or
erroneous interpretation of the law. The very act of respondent judge in altogether
dismissing sua sponte the eleven criminal cases without even a motion to quash
having been filed by the accused, and without at least giving the prosecution the
basic opportunity to be heard on the matter by way of a written comment or on
oral argument, is not only a blatant denial of elementary due process to the
Government but is palpably indicative of bad faith and partiality.
Same; Same; Same.—The avowed desire of respondent judge to speedily dispose
of the cases as early as possible is no license for abuse of judicial power and
discretion, nor does such professed objective, even if true, justify a deprivation
of the prosecution’s right to be heard and a violation of its right to due process of
law.
Same; Same; Same; The prosecution was not given a chance to show or prove
that it had strong evidence of the guilt of the accused.—The lightning speed, to
borrow the words of complainants, with which respondent judge resolved to
dismiss the cases without the benefit of a hearing and without reasonable notice
to the prosecution inevitably opened him to suspicion of having acted out of
partiality for the accused. Regardless of how carefully he may have evaluated
changes in the factual situation and legal standing of the cases, as a result of the
newspaper report, the fact remains that he gave the prosecution no chance
whatsoever to show or prove that it had strong evidence of the guilt of the
accused. To repeat, he thereby effectively deprived the prosecution of its right to
due process.
Same; Same; Same; A display of petulance and impatience in the conduct of the
trial is a norm of conduct which is inconsistent with the “cold neutrality” of an
impartial judge.—In order that bias may not be imputed to a judge, he should
have the patience and circumspection to give the opposing party a chance to
present his evidence even if he thinks that the oppositor’s proofs might not be
adequate to overthrow the case for the other party. A display of petulance and
impatience in the conduct of the trial is a norm of conduct which is inconsistent
with the “cold neutrality of an impartial judge.” At the very least, respondent
judge acted injudiciously and with unjustified haste in the outright dismissal of
the eleven cases, and thereby rendered his actuation highly dubious.
Criminal Procedure; Double Jeopardy; Due Process; Double jeopardy cannot be
invoked against this Court’s setting aside of the trial court’s judgment of
dismissal or acquittal where the prosecution which represents the sovereign
people in criminal cases is denied due process.—It bears stressing that the
questioned order of respondent judge could have seriously and substantially
affected the rights of the prosecution had the accused invoked the defense of
double jeopardy, considering that the dismissal was ordered after arraignment
and without the consent of said accused. This could have spawned legal
complications and inevitable delay in the criminal proceedings, were it not for
the holding of the Court of Appeals that respondent judge acted with grave abuse
of discretion amounting to lack of jurisdiction. This saved the day for the People
since in the absence of jurisdiction, double jeopardy will not set in. To stress this
point, and as a caveat to trial courts against falling into the same judicial error,
we reiterate what we have heretofore declared: It is settled doctrine that double
jeopardy cannot be invoked against this Court’s setting aside of the trial court’s
judgment of dismissal or acquittal where the prosecution which represents the
sovereign people in criminal cases is denied due process. x x x.
In assaying the requisite norms for qualifications and eminence of a magistrate,
legal authorities place a premium on how he has complied with his continuing
duty to know the law. A quality thus considered essential to the judicial character
is that of "a man of learning who spends tirelessly the weary hours after midnight
acquainting himself with the great body of traditions and the learning of the law;
is profoundly learned in all the learning of the law; and knows how to use that
learning." 1
Obviously, it is the primary duty of a judge, which he owes to the public and to
the legal profession, to know the very law he is supposed to apply to a given
controversy. He is called upon to exhibit more than just a cursory acquaintance
with the statutes and procedural rules. Party litigants will have great faith in the
administration of justice if judges cannot justly be accused of apparent deficiency
in their grasp of the legal principles. For, service in the judiciary means a
continuous study and research on the law from beginning to end. 2
In a letter-complaint 3 dated August 19, 1992, respondent Judge Manuel T. Muro
of the Regional Trial Court (RTC) of Manila, Branch 54, was charged by State
Prosecutors Nilo C. Mariano, George C. Dee and Paterno V. Tac-an with
ignorance of the law, grave misconduct and violations of Rules 2.01, 3.01 and
3.02 of the Code of Judicial Conduct, committed as follows:
1. That on August 13, 1992, respondent judge issued an Order dismissing eleven
(11) cases (docketed as Crim. Cases Nos. 92-101959 to 92- 101969, inclusive)
filed by the undersigned complainant prosecutors (members of the DOJ Panel of
Prosecutors) against the accused Mrs. Imelda Romualdez Marcos, for Violation
of Central Bank Foreign Exchange Restrictions, as consolidated in CB Circular
No. 960, in relation to the penal provisions of Sec. 34 of R.A. 265, as amended, .
. .;
2. That respondent Judge issued his Order solely on the basis of newspaper
reports (August 11, 1992 issues of the Philippine Daily Inquirer and the Daily
Globe) concerning the announcement on August 10, 1992 by the President of the
Philippines of the lifting by the government of all foreign exchange restrictions
and the arrival at such decision by the Monetary Board as per statement of Central
Bank Governor Jose Cuisia;
3. That claiming that the reported announcement of the Executive Department on
the lifting of foreign exchange restrictions by two newspapers which are
reputable and of national circulation had the effect of repealing Central Bank
Circular No. 960, as allegedly supported by Supreme Court decisions . . ., the
Court contended that it was deprived of jurisdiction, and, therefore, motu,
prop(r)io had to dismiss all the eleven cases aforementioned "for not to do so
opens this Court to charges of trying cases over which it has no more
jurisdiction;"
4. That in dismissing aforecited cases on August 13, 1992 on the basis of a Central
Bank Circular or Monetary Board Resolution which as of date hereof, has not
even been officially issued, and basing his Order/decision on a mere newspaper
account of the advance announcement made by the President of the said fact of
lifting or liberalizing foreign exchange controls, respondent judge acted
prematurely and in indecent haste, as he had no way of determining the full intent
of the new CB Circular or Monetary Board resolution, and whether the same
provided for exception, as in the case of persons who had pending criminal cases
before the courts for violations of Central Bank Circulars and/or regulations
previously issued on the matter;
5. That respondent Judge's arrogant and cavalier posture in taking judicial notice
purportedly as a matter of public knowledge a mere newspaper account that the
President had announced the lifting of foreign exchange restrictions as basis for
his assailed order of dismissal is highly irregular, erroneous and misplaced. For
the respondent judge to take judicial notice thereof even before it is officially
released by the Central Bank and its full text published as required by law to be
effective shows his precipitate action in utter disregard of the fundamental
precept of due process which the People is also entitled to and exposes his gross
ignorance of the law, thereby tarnishing public confidence in the integrity of the
judiciary. How can the Honorable Judge take judicial notice of something which
has not yet come into force and the contents, shape and tenor of which have not
yet been published and ascertained to be the basis of judicial action? The
Honorable Judge had miserably failed to "endeavor diligently to ascertain the
facts" in the case at bar contrary to Rule 3.02 of the Code of Judicial Conduct
constituting Grave Misconduct;
6. That respondent Judge did not even ha(ve) the prudence of requiring first the
comment of the prosecution on the effect of aforesaid Central Bank
Circular/Monetary Board resolution on the pending cases before dismissing the
same, thereby denying the Government of its right to due process;
7. That the lightning speed with which respondent Judge acted to dismiss the
cases may be gleaned from the fact that such precipitate action was undertaken
despite already scheduled continuation of trial dates set in the order of the court
(the prosecution having started presenting its evidence . . .) dated August 11, 1992
to wit: August 31, September 3, 10, 21, & 23 and October 1, 1992, all at 9:30
o'clock in the morning, in brazen disregard of all notions of fair play, thereby
depriving the Government of its right to be heard, and clearly exposing his bias
and partiality; and
8. That, in fact, the motive of respondent Judge in dismissing the case without
even waiting for a motion to quash filed by the counsel for accused has even
placed his dismissal Order suspect.
Pursuant to a resolution of this Court dated September 8, 1992, respondent judge
filed his comment, 4 contending, inter alia, that there was no need to await
publication of the Central Bank (CB) circular repealing the existing law on
foreign exchange controls for the simple reason that the public announcement
made by the President in several newspapers of general circulation lifting foreign
exchange controls was total, absolute, without qualification, and was
immediately effective; that having acted only on the basis of such announcement,
he cannot be blamed for relying on the erroneous statement of the President that
the new foreign exchange rules rendered moot and academic the cases filed
against Mrs. Marcos, and which was corrected only on August 17, 1992 but
published in the newspapers on August 18, 1992, and only after respondent judge
had issued his order of dismissal dated August 13, 1992; that the President was
ill-advised by his advisers and, instead of rescuing the Chief Executive from
embarrassment by assuming responsibility for errors in the latter's
announcement, they chose to toss the blame for the consequence of their failures
to respondent judge who merely acted on the basis of the announcements of the
President which had become of public knowledge; that the "saving clause" under
CB Circular No. 1353 specifically refers only to pending actions or investigations
involving violations of CB Circular No. 1318, whereas the eleven cases
dismissed involved charges for violations of CB Circular No. 960, hence the
accused cannot be tried and convicted under a law different from that under which
she was charged; that assuming that respondent judge erred in issuing the order
of dismissal, the proper remedy should have been an appeal therefrom but
definitely not an administrative complaint for his dismissal; that a mistake
committed by a judge should not necessarily be imputed as ignorance of the law;
and that a "court can reverse or modify a doctrine but it does not show ignorance
of the justices or judges whose decisions were reversed or modified" because
"even doctrines initiated by the Supreme Court are later reversed, so how much
more for the lower courts?"
He further argued that no hearing was necessary since the prosecution had
nothing to explain because, as he theorized, "What explanation could have been
given? That the President was talking 'through his hat' (to use a colloquialism)
and should not be believed? That I should wait for the publication (as now alleged
by complainants), of a still then non-existent CB circular? . . . As it turned out,
CB Circular No. 3153 (sic) does not affect my dismissal order because the said
circular's so-called saving clause does not refer to CB Circular 960 under which
the charges in the dismissed cases were based;" that it was discretionary on him
to take judicial notice of the facts which are of public knowledge, pursuant to
Section 2 of Rule 129; that the contention of complainants that he acted
prematurely and in indecent haste for basing his order of dismissal on a mere
newspaper account is contrary to the wordings of the newspaper report wherein
the President announced the lifting of controls as an accomplished fact, not as an
intention to be effected in the future, because of the use of the present perfect
tense or past tense "has lifted," not that he "intends to lift," foreign exchange
controls.
Finally, respondent judge asseverates that complainants who are officers of the
Department of Justice, violated Section 6, Rule 140 of the Rules of Court which
provides that "proceedings against judges of first instance shall be private and
confidential" when they caused to be published in the newspapers the filing of
the present administrative case against him; and he emphasizes the fact that he
had to immediately resolve a simple and pure legal matter in consonance with the
admonition of the Supreme Court for speedy disposition of cases.
In their reply 5 and supplemental reply, 6 complainants aver that although the
saving clause under Section 16 of CB Circular No. 1353 made specific reference
to CB Circular No. 1318, it will be noted that Section 111 of Circular No. 1318,
which contains a saving clause substantially similar to that of the new circular, in
turn refers to and includes Circular No. 960. Hence, whether under Circular No.
1318 or Circular No. 1353, pending cases involving violations of Circular No.
960 are excepted from the coverage thereof. Further, it is alleged that the
precipitate dismissal of the eleven cases, without according the prosecution the
opportunity to file a motion to quash or a comment, or even to show cause why
the cases against accused Imelda R. Marcos should not be dismissed, is clearly
reflective of respondent's partiality and bad faith. In effect, respondent judge
acted as if he were the advocate of the accused.
On December 9, 1993, this Court issued a resolution referring the complaint to
the Office of the Court Administrator for evaluation, report and recommendation,
pursuant to Section 7, Rule 140 of the Rules of Court, as revised, there being no
factual issues involved. The corresponding report and recommendation, 7 dated
February 14, 1994, was submitted by Deputy Court Administrator Juanito A.
Bernad, with the approval of Court Administrator Ernani Cruz-Paño.
The questioned order 8 of respondent judge reads as follows:
These eleven (11) cases are for Violation of Central Bank Foreign Exchange
Restrictions as consolidated in CB Circular No. 960 in relation to the penal
provision of Sec. 34 of R.A. 265, as amended.
The accused Mrs. Imelda R. Marcos pleaded not guilty to all these cases;
apparently the other accused in some of these cases, Roberto S. Benedicto, was
not arrested and therefore the Court did not acquire jurisdiction over his person;
trial was commenced as against Mrs. Marcos.
His Excellency, the President of the Philippines, announced on August 10, 1992
that the government has lifted all foreign exchange restrictions and it is also
reported that Central Bank Governor Jose Cuisia said that the Monetary Board
arrived at such decision (issue of the Philippine Daily Inquirer, August 11, 1992
and issue of the Daily Globe of the same date). The Court has to give full
confidence and credit to the reported announcement of the Executive
Department, specially from the highest official of that department; the Courts are
charged with judicial notice of matters which are of public knowledge, without
introduction of proof, the announcement published in at least the two newspapers
cited above which are reputable and of national circulation.
Per several cases decided by the Supreme Court (People vs. Alcaras, 56 Phil. 520,
People vs. Francisco, 56 Phil. 572, People vs. Pastor, 77 Phil. 1000, People vs.
Crisanto Tamayo, 61 Phil. 225), among others, it was held that the repeal of a
penal law without re-enactment extinguishes the right to prosecute or punish the
offense committed under the old law and if the law repealing the prior penal law
fails to penalize the acts which constituted the offense defined and penalized in
the repealed law, the repealed law carries with it the deprivation of the courts of
jurisdiction to try, convict and sentence persons charged with violations of the
old law prior to its repeal. Under the aforecited decisions this doctrine applies to
special laws and not only to the crimes punishable in the Revised Penal Code,
such as the Import Control Law. The Central Bank Circular No. 960 under which
the accused Mrs. Marcos is charged is considered as a penal law because violation
thereof is penalized with specific reference to the provision of Section 34 of
Republic Act 265, which penalizes violations of Central Bank Circular No. 960,
produces the effect cited in the Supreme Court decisions and since according to
the decisions that repeal deprives the Court of jurisdiction, this Court motu
proprio dismisses all the eleven (11) cases as a forestated in the caption, for not
to do so opens this Court to charges of trying cases over which it has no more
jurisdiction.
This order was subsequently assailed in a petition for certiorari filed with the
Court of Appeals, entitled "People of the Philippines vs. Hon. Manuel T. Muro,
Judge, RTC of Manila, Br. 54 and Imelda R. Marcos," docketed as CA-G.R. SP
No. 29349. When required to file her comment, private respondent Marcos failed
to file any. Likewise, after the appellate court gave due course to the petition,
private respondent was ordered, but again failed despite notice, to file an answer
to the petition and to show cause why no writ of preliminary injunction should
issue. Eventually, on April 29, 1993, the Court of Appeals rendered a
decision 9 setting aside the order of August 13, 1992, and reinstating Criminal
Cases Nos. 92-101959 to 92-101969.
In finding that respondent judge acted in excess of jurisdiction and with grave
abuse of discretion in issuing the order of dismissal, the appellate court held that:
The order was issued motu proprio, i.e., without any motion to dismiss filed by
counsel for the accused, without giving an opportunity for the prosecution to be
heard, and solely on the basis of newspaper reports announcing that the President
has lifted all foreign exchange restrictions.
The newspaper report is not the publication required by law in order that the
enactment can become effective and binding. Laws take effect after fifteen days
following the completion of their publication in the Official Gazette or in a
newspaper of general circulation unless it is otherwise provided (Section 1,
Executive Order No. 200). The full text of CB Circular 1353, series of 1992,
entitled "Further Liberalizing Foreign Exchange Regulation" was published in
the August 27, 1992 issue of the Manila Chronicle, the Philippine Star and the
Manila Bulletin. Per certification of the CB Corporate Affairs Office, CB
Circular No. 1353 took effect on September 2 . . . .
Considering that respondent judge admittedly had not seen the official text of CB
Circular No. 1353, he was in no position to rule judiciously on whether CB
Circular No. 960, under which the accused Mrs. Marcos is charged, was already
repealed by CB Circular No. 1353. . . .
xxx xxx xxx
A cursory reading of the . . . provision would have readily shown that the repeal
of the regulations on non-trade foreign exchange transactions is not absolute, as
there is a provision that with respect to violations of former regulations that are
the subject of pending actions or investigations, they shall be governed by the
regulations existing at the time the cause of action (arose). Thus his conclusion
that he has lost jurisdiction over the criminal cases is precipitate and hasty. Had
he awaited the filing of a motion to dismiss by the accused, and given opportunity
for the prosecution to comment/oppose the same, his resolution would have been
the result of deliberation, not speculation.
I. The doctrine of judicial notice rests on the wisdom and discretion of the courts.
The power to take judicial notice is to be exercised by courts with caution; care
must be taken that the requisite notoriety exists; and every reasonable doubt on
the subject should be promptly resolved in the negative. 10
Generally speaking, matters of judicial notice have three material requisites: (1)
the matter must be one of common and general knowledge; (2) it must be well
and authoritatively settled and not doubtful or uncertain; and (3) it must be known
to be within the limits of the jurisdiction of the court. 11 The provincial guide in
determining what facts may be assumed to be judicially known is that of
notoriety. 12 Hence, it can be said that judicial notice is limited to facts evidenced
by public records and facts of general notoriety. 13
To say that a court will take judicial notice of a fact is merely another way of
saying that the usual form of evidence will be dispensed with if knowledge of the
fact can be otherwise acquired. 14 This is because the court assumes that the
matter is so notorious that it will not be disputed. 15 But judicial notice is not
judicial knowledge. The mere personal knowledge of the judge is not the judicial
knowledge of the court, and he is not authorized to make his individual
knowledge of a fact, not generally or professionally known, the basis of his
action. Judicial cognizance is taken only of those matters which are "commonly"
known. 16
Things of "common knowledge," of which courts take judicial notice, may be
matters coming to the knowledge of men generally in the course of the ordinary
experiences of life, or they may be matters which are generally accepted by
mankind as true and are capable of ready and unquestioned
demonstration. 17 Thus, facts which are universally known, and which may be
found in encyclopedias, dictionaries or other publications, are judicially noticed,
provided they are of such universal notoriety and so generally understood that
they may be regarded as forming part of the common knowledge of every
person. 18
Respondent judge, in the guise of exercising discretion and on the basis of a mere
newspaper account which is sometimes even referred to as hearsay evidence
twice removed, took judicial notice of the supposed lifting of foreign exchange
controls, a matter which was not and cannot be considered of common knowledge
or of general notoriety. Worse, he took cognizance of an administrative
regulation which was not yet in force when the order of dismissal was issued.
Jurisprudence dictates that judicial notice cannot be taken of a statute before it
becomes effective. 19 The reason is simple. A law which is not yet in force and
hence, still inexistent, cannot be of common knowledge capable of ready and
unquestionable demonstration, which is one of the requirements before a court
can take judicial notice of a fact.
Evidently, it was impossible for respondent judge, and it was definitely not proper
for him, to have taken cognizance of CB Circular No. 1353, when the same was
not yet in force at the time the improvident order of dismissal was issued.
II. Central Bank Circular No. 1353, which took effect on September 1, 1992,
further liberalized the foreign exchange regulations on receipts and
disbursements of residents arising from non-trade and trade transactions. Section
16 thereof provides for a saving clause, thus:
Sec. 16. Final Provisions of CB Circular No. 1318. - All the provisions in
Chapter X of CB Circular No. 1318 insofar as they are not inconsistent with, or
contrary to the provisions of this Circular, shall remain in full force and
effect: Provided, however, that any regulation on non-trade foreign exchange
transactions which has been repealed, amended or modified by this Circular,
violations of which are the subject of pending actions or investigations, shall not
be considered repealed insofar as such pending actions or investigations are
concerned, it being understood that as to such pending actions or investigations,
the regulations existing at the time the cause of action accrued shall govern.
Respondent judge contends that the saving clause refers only to the provisions of
Circular No. 1318, whereas the eleven criminal cases he dismissed involve a
violation of CB Circular No. 960. Hence, he insists, Circular No. 960 is deemed
repealed by the new circular and since the former is not covered by the saving
clause in the latter, there is no more basis for the charges involved in the criminal
cases which therefore warrant a dismissal of the same. The contention is patently
unmeritorious.
Firstly, the second part of the saving clause in Circular No. 1353 explicitly
provides that "any regulation on non-trade foreign transactions which has been
repealed, amended or modified by this Circular, violations of which are the
subject of pending actions or investigations, shall not be considered repealed
insofar as such pending actions or investigations are concerned, it being
understood that as to such pending actions or investigations, the regulations
existing at the time the cause of action accrued shall govern." The terms of the
circular are clear and unambiguous and leave no room for interpretation. In the
case at bar, the accused in the eleven cases had already been arraigned, had
pleaded not guilty to the charges of violations of Circular No. 960, and said cases
had already been set for trial when Circular No. 1353 took effect. Consequently,
the trial court was and is supposed to proceed with the hearing of the cases in
spite of the existence of Circular No. 1353.
Secondly, had respondent judge only bothered to read a little more carefully the
texts of the circulars involved, he would have readily perceived and known that
Circular No. 1318 also contains a substantially similar saving clause as that found
in Circular No. 1353, since Section 111 of the former provides:
Sec. 111. Repealing clause. - All existing provisions of Circulars 365, 960 and
1028, including amendments thereto, with the exception of the second paragraph
of Section 68 of Circular 1028, as well as all other existing Central Bank rules
and regulations or parts thereof, which are inconsistent with or contrary to the
provisions of this Circular, are hereby repealed or modified accordingly:
Provided, however, that regulations, violations of which are the subject of
pending actions or investigations, shall be considered repealed insofar as such
pending actions or investigations are concerned, it being understood that as to
such pending actions or investigations, the regulations existing at the time the
cause of action accrued shall govern.
It unequivocally appears from the section above quoted that although Circular
No. 1318 repealed Circular No. 960, the former specifically excepted from its
purview all cases covered by the old regulations which were then pending at the
time of the passage of the new regulations. Thus, any reference made to Circular
No. 1318 necessarily involves and affects Circular No. 960.
III. It has been said that next in importance to the duty of rendering a righteous
judgment is that of doing it in such a manner as will beget no suspicion of the
fairness and integrity of the judge. 20 This means that a judge should not only
render a just, correct and impartial decision but should do so in such a manner as
to be free from any suspicion as to its fairness and impartiality and as to his
integrity. While a judge should possess proficiency in law in order that he can
competently construe and enforce the law, it is more important that he should act
and behave in such a manner that the parties before him should have confidence
in his impartiality. Thus, it is not enough that he decides cases without bias and
favoritism. Nor is it sufficient that he in fact rids himself of prepossessions. His
actuations should moreover inspire that belief. Like Caesar's wife, a judge must
not only be pure but beyond suspicion. 21
Moreover, it has always heretofore been the rule that in disposing of controverted
cases, judges should show their full understanding of the case, avoid the suspicion
of arbitrary conclusion, promote confidence in their intellectual integrity and
contribute useful precedents to the growth of the law. 22 A judge should be
mindful that his duty is the application of general law to particular instances, that
ours is a government of laws and not of men, and that he violates his duty as a
minister of justice under such a system if he seeks to do what he may personally
consider substantial justice in a particular case and disregards the general law as
he knows it to be binding on him. Such action may have detrimental
consequences beyond the immediate controversy. He should administer his office
with due regard to the integrity of the system of the law itself, remembering that
he is not a depository of arbitrary power, but a judge under the sanction of the
law. 23 These are immutable principles that go into the very essence of the task of
dispensing justice and we see no reason why they should not be duly considered
in the present case.
The assertion of respondent judge that there was no need to await publication of
Circular No. 1353 for the reason that the public announcement made by the
President in several newspapers of general circulation lifting foreign exchange
controls is total, absolute, without qualification, and immediately effective, is
beyond comprehension. As a judge of the Regional Trial Court of Manila,
respondent is supposed to be well-versed in the elementary legal mandates on the
publication of laws before they take effect. It is inconceivable that respondent
should insist on an altogether different and illogical interpretation of an
established and well-entrenched rule if only to suit his own personal opinion and,
as it were, to defend his indefensible action. It was not for him to indulge or even
to give the appearance of catering to the at-times human failing of yielding to
first impressions. 24 He having done so, in the face of the foregoing premises, this
Court is hard put to believe that he indeed acted in good faith.
IV. This is not a simple case of a misapplication or erroneous interpretation of
the law. The very act of respondent judge in altogether dismissing sua sponte the
eleven criminal cases without even a motion to quash having been filed by the
accused, and without at least giving the prosecution the basic opportunity to be
heard on the matter by way of a written comment or on oral argument, is not only
a blatant denial of elementary due process to the Government but is palpably
indicative of bad faith and partiality.
The avowed desire of respondent judge to speedily dispose of the cases as early
as possible is no license for abuse of judicial power and discretion, 25 nor does
such professed objective, even if true, justify a deprivation of the prosecution's
right to be heard and a violation of its right to due process of
law. 26
The lightning speed, to borrow the words of complainants, with which respondent
judge resolved to dismiss the cases without the benefit of a hearing and without
reasonable notice to the prosecution inevitably opened him to suspicion of having
acted out of partiality for the accused. Regardless of how carefully he may have
evaluated changes in the factual situation and legal standing of the cases, as a
result of the newspaper report, the fact remains that he gave the prosecution no
chance whatsoever to show or prove that it had strong evidence of the guilt of the
accused. To repeat, he thereby effectively deprived the prosecution of its right to
due process. 27 More importantly, notwithstanding the fact that respondent was
not sure of the effects and implications of the President's announcement, as by
his own admission he was in doubt whether or not he should dismiss the
cases, 28 he nonetheless deliberately refrained from requiring the prosecution to
comment thereon. In a puerile defense of his action, respondent judge can but
rhetorically ask: "What explanation could have been given? That the President
was talking 'through his hat' and should not be believed? That I should wait for
the publication of a still then non- existent CB Circular?" The pretended cogency
of this ratiocination cannot stand even the minutest legal scrutiny.
In order that bias may not be imputed to a judge, he should have the patience and
circumspection to give the opposing party a chance to present his evidence even
if he thinks that the oppositor's proofs might not be adequate to overthrow the
case for the other party. A display of petulance and impatience in the conduct of
the trial is a norm of conduct which is inconsistent with the "cold neutrality of an
impartial judge." 29 At the very least, respondent judge acted injudiciously and
with unjustified haste in the outright dismissal of the eleven cases, and thereby
rendered his actuation highly dubious.
V. It bears stressing that the questioned order of respondent judge could have
seriously and substantially affected the rights of the prosecution had the accused
invoked the defense of double jeopardy, considering that the dismissal was
ordered after arraignment and without the consent of said accused. This could
have spawned legal complications and inevitable delay in the criminal
proceedings, were it not for the holding of the Court of Appeals that respondent
judge acted with grave abuse of discretion amounting to lack of jurisdiction. This
saved the day for the People since in the absence of jurisdiction, double jeopardy
will not set in. To stress this point, and as a caveat to trial courts against falling
into the same judicial error, we reiterate what we have heretofore declared:
It is settled doctrine that double jeopardy cannot be invoked against this Court's
setting aside of the trial court's judgment of dismissal or acquittal where the
prosecution which represents the sovereign people in criminal cases is denied due
process. . . . .
Where the prosecution is deprived of a fair opportunity to prosecute and prove its
case, its right to due process is thereby violated.
The cardinal precept is that where there is a violation of basic constitutional
rights, courts are ousted of their jurisdiction. Thus, the violation of the State's
right to due process raises a serious jurisdictional issue . . . which cannot be
glossed over or disregarded at will. Where the denial of the fundamental right of
due process is apparent, a decision rendered in disregard of that right is void for
lack of jurisdiction . . . . 30
It is also significant that accused Marcos, despite due notice, never submitted
either her comment on or an answer to the petition for certiorari as required by
the Court of Appeals, nor was double jeopardy invoked in her defense. This
serves to further underscore the fact that the order of dismissal was clearly
unjustified and erroneous. Furthermore, considering that the accused is a
prominent public figure with a record of influence and power, it is not easy to
allay public skepticism and suspicions on how said dismissal order came to be,
to the consequent although undeserved discredit of the entire judiciary.
VI. To hold a judge liable for rendering a manifestly unjust order through
inexcusable negligence or ignorance, it must be clearly shown that although he
has acted without malice, he failed to observe in the performance of his duty that
diligence, prudence and care which the law is entitled to exact in the rendering of
any public service. Negligence and ignorance are inexcusable if they imply a
manifest injustice which cannot be explained by a reasonable interpretation, and
even though there is a misunderstanding or error of the law applied, it
nevertheless results logically and reasonably, and in a very clear and indisputable
manner, in the notorious violation of the legal precept. 31
In the present case, a cursory perusal of the comment filed by respondent judge
reveals that no substantial argument has been advanced in plausible justification
of his act. He utterly failed to show any legal, factual, or even equitable
justification for the dismissal of the eleven criminal cases. The explanation given
is no explanation at all. The strained and fallacious submissions therein do not
speak well of respondent and cannot but further depreciate his probity as a judge.
On this point, it is best that pertinent unedited excerpts from his comment 32 be
quoted by way of graphic illustration and emphasis:
On the alleged ignorance of the law imputed to me, it is said that I issued the
Order dismissing the eleven (11) cases against Mrs. Imelda R. Marcos on the
basis of newspaper reports referred to in paragraph 2 of the letter complaint
without awaiting the official publication of the Central Bank Circular. Ordinarily
a Central Bank Circular/Resolution must be published in the Official Gazette or
in a newspaper of general circulation, but the lifting of "all foreign exchange
controls" was announced by the President of the Philippines WITHOUT
QUALIFICATIONS; as published in the Daily Globe, August 11, 1992" the
government has lifted ALL foreign exchange controls," and in the words of the
Philippine Daily Inquirer report of the same date "The government yesterday
LIFTED the LAST remaining restrictions on foreign exchange transactions, . . ."
(emphasis in both quotations supplied) not only the President made the
announcement but also the Central Bank Governor Jose Cuisia joined in the
announcement by saying that "the Monetary Board arrived at the decision after
noting how the "partial liberalization" initiated early this year worked."
Therefore, because of the ABSOLUTE lifting of ALL restrictions on foreign
exchange transactions, there was no need to await the publication of the repealing
circular of the Central Bank. The purpose of requiring publication of laws and
administrative rules affecting the public is to inform the latter as to how they will
conduct their affairs and how they will conform to the laws or the rules. In this
particular case, with the total lifting of the controls, there is no need to await
publication. It would have been different if the circular that in effect repealed
Central Bank Circular No. 960, under which the accused was charged in the cases
dismissed by me, had provided for penalties and/or modified the provisions of
said Circular No. 960.
The Complainants state that the lifting of controls was not yet in force when I
dismissed the cases but it should be noted that in the report of the two (2)
newspapers aforequoted, the President's announcement of the lifting of controls
was stated in the present perfect tense (Globe) or past tense (Inquirer). In other
words, it has already been lifted; the announcement did not say that the
government INTENDS to lift all foreign exchange restrictions but instead says
that the government "has LIFTED all foreign exchange controls," and in the other
newspaper cited above, that "The government yesterday lifted the last remaining
restrictions on foreign exchange transactions". The lifting of the last remaining
exchange regulations effectively cancelled or repealed Circular No. 960.
The President, who is the Chief Executive, publicly announced the lifting of all
foreign exchange regulations. The President has within his control directly or
indirectly the Central Bank of the Philippines, the Secretary of Finance being the
Chairman of the Monetary Board which decides the policies of the Central Bank.
No official bothered to correct or qualify the President's announcement of August
10, published the following day, nor made an announcement that the lifting of
the controls do not apply to cases already pending, not until August 17 (the fourth
day after my Order, and the third day after report of said order was published)
and after the President said on August 17, reported in the INQUIRER's issue of
August 18, 1992, that the "new foreign exchange rules have nullified government
cases against Imelda R. Marcos, telling reporters that the charges against the
widow of former President Marcos "have become moot and academic" because
of new ruling(s) which allow free flow of currency in and out of the country"
(Note, parenthetically, the reference to "new rules" not to "rules still to be
drafted"). The INQUIRER report continues: "A few hours later, presidential
spokeswoman Annabelle Abaya said, RAMOS (sic) had "corrected himself'."
"He had been belatedly advised by the Central Bank Governor Jose Cuisia and
Justice Secretary Franklin Drilon that the Monetary Board Regulation excluded
from its coverage all criminal cases pending in court and such a position shall
stand legal scrutiny', Mrs. Abaya, said."
I will elaborate on two points:
1. If the President was wrong in making the August 10 announcement (published
in August 11, 1992, newspapers) and in the August 17 announcement, SUPRA,
and thus I should have relied on the Presidential announcements, and there is
basis to conclude that the President was at the very least ILL-SERVED by his
financial and legal advisers, because no one bothered to advise the President to
correct his announcements, not until August 17, 1992, a few hours after the
President had made another announcement as to the charges against Imelda
Marcos having been rendered moot and academic. The President has a lot of work
to do, and is not, to my knowledge, a financier, economist, banker or lawyer. It
therefore behooved his subalterns to give him timely (not "belated") advice, and
brief him on matters of immediate and far-reaching concerns (such as the lifting
of foreign exchange controls, designed, among others to encourage the entry of
foreign investments). Instead of rescuing the Chief Executive from
embarrassment by assuming responsibility for errors in the latter's
announcement, these advisers have chosen to toss the blame for the consequence
of their failing to me, who only acted on the basis of announcements of their
Chief, which had become of public knowledge.
xxx xxx xxx
The Court strongly feels that it has every right to assume and expect that
respondent judge is possessed with more than ordinary credentials and
qualifications to merit his appointment as a presiding judge in the Regional Trial
Court of the National Capital Judicial Region, stationed in the City of Manila
itself. It is, accordingly, disheartening and regrettable to note the nature of the
arguments and the kind of logic that respondent judge would want to impose on
this Court notwithstanding the manifest lack of cogency thereof. This calls to
mind similar scenarios and how this Court reacted thereto.
In one case, an RTC Judge was administratively charged for acquitting the
accused of a violation of CB Circular No. 960 despite the fact that the accused
was apprehended with US$355,349.00 while boarding a plane for Hongkong,
erroneously ruling that the State must first prove criminal intent to violate the law
and benefit from the illegal act, and further ordering the return of US$3,000.00
out of the total amount seized, on the mistaken interpretation that the CB circular
exempts such amount from seizure. Respondent judge therein was ordered
dismissed from the government service for gross incompetence and ignorance of
the law. 33
Subsequently, the Court dismissed another RTC judge, with forfeiture of
retirement benefits, for gross ignorance of the law and for knowingly rendering
an unjust order or judgment when he granted bail to an accused charged with
raping an 11-year old girl, despite the contrary recommendation of the
investigating judge, and thereafter granted the motion to dismiss the case
allegedly executed by the complainant. 34
Similarly, an RTC judge who was described by this Court as one "who is ignorant
of fairly elementary and quite familiar legal principles and administrative
regulations, has a marked penchant for applying unorthodox, even strange
theories and concepts in the adjudication of controversies, exhibits indifference
to and even disdain for due process and the rule of law, applies the law
whimsically, capriciously and oppressively, and displays bias and impartiality,"
was dismissed from the service with forfeiture of all retirement benefits and with
prejudice to reinstatement in any branch of the government or any of its agencies
or instrumentalities. 35
Still in another administrative case, an RTJ judge was also dismissed by this
Court for gross ignorance of the law after she ordered, in a probate proceeding,
the cancellation of the certificates of title issued in the name of the complainant,
without affording due process to the latter and other interested parties. 36
Only recently, an RTC judge who had been reinstated in the service was
dismissed after he acquitted all the accused in four criminal cases for illegal
possession of firearms, on the ground that there was no proof of malice or
deliberate intent on the part of the accused to violate the law. The Court found
him guilty of gross ignorance of the law, his error of judgment being almost
deliberate and tantamount to knowingly rendering an incorrect and unjust
judgment. 37
ACCORDINGLY, on the foregoing premises and considerations, the Court finds
respondent Judge Manuel T. Muro guilty of gross ignorance of the law. He is
hereby DISMISSED from the service, such dismissal to carry with it cancellation
of eligibility, forfeiture of leave credits and retirement benefits, and
disqualification from reemployment in the government service. 38
Respondent is hereby ordered to CEASE and DESIST immediately from
rendering any judgment or order, or continuing any judicial action or proceeding
whatsoever, effective upon receipt of this decision.
SO ORDERED.
Narvasa, Cruz, Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo,
Melo, Quiason, Puno, Vitug and Kapunan, JJ., concur.
Bidin, is on official leave.
Separate Opinions
DISSENTING OPINION
BELLOSILLO, J.:
In other jurisdictions, it is generally accepted that judges are not accountable by
way of either civil suit or discipline for their official acts, even if clearly
erroneous. Thus, open disregard of statutes, rules, and cases has been held to be
protected official activity. Although a decision may seem so erroneous as to raise
doubts concerning a judge's integrity or physiological condition, absent extrinsic
evidence, the decision itself is insufficient to establish a case against the judge.
The rule is consistent with the concept of judicial independence. An honest judge,
if he were denied the protection of the extrinsic evidence requirement, might
become unduly cautious in his work, since he would be subject to discipline based
merely upon the inferences to be drawn from an erroneous decision. 1
In our jurisdiction, the law is no different. Thus, this Court has repeatedly held
that -
. . . it is a fundamental rule of long standing that a judicial officer when required
to exercise his judgment or discretion is not criminally liable for any error he
commits provided he acts in good faith, that in the absence of malice or any
wrongful conduct . . . the judge cannot be held administratively responsible . . .
for no one, called upon to try the facts or interpret the law in the process of
administering justice can be infallible in his judgment, and to hold a judge
administratively accountable for every erroneous ruling or decision he renders . .
. would be nothing short of harassment or would make his position unbearable. 2
A judge cannot be subjected to liability - civil, criminal, or
administrative - for any of his official acts, no matter how erroneous, as long as
he acts in good faith. 3 He cannot be held to account or answer, criminally, civilly,
or administratively, for an erroneous decision rendered by him in good faith. 4 As
a matter of public policy, in the absence of fraud, dishonesty, or corruption, the
acts of a judge in his judicial capacity are not subject to disciplinary action, even
though such acts are erroneous. 5 It is a general principle of the highest
importance to proper administration of justice that a judicial officer, in exercising
the authority vested in him, shall be free to act upon his own convictions, without
apprehension of personal consequences to himself. This concept of judicial
immunity rests upon consideration of public policy, its purpose being to preserve
the integrity and independence of the judiciary." 6 This being settled doctrine,
there is no choice but to apply it to the instant case.
The facts: Respondent Manuel T. Muro, a native of Masbate, Masbate, was
appointed on 6 November 1986 as Presiding Judge of the Regional Trial Court
of Manila, Br. 54, by then President Corazon C. Aquino. A product of the College
of Law, Far Easter University, he graduated valedictorian in 1955, magna cum
laude, and placed sixth in the Bar examinations. Now he is being charged with
ignorance of the law, grave misconduct and violations of Rules 2.01, 3.01 and
3.02 of the Code of Judicial Conduct 7 for dismissing motu proprio the eleven
(11) cases filed by the Department of Justice Panel of Prosecutors against Ms.
Imelda Romualdez Marcos for Violation of Central Bank Foreign Exchange
Restrictions after President Fidel V. Ramos had announced, which was published
in newspaper reports, the lifting of all foreign exchange restrictions.
The majority opinion finds respondent judge guilty of gross ignorance of the law
and imposes upon him the supreme penalty of dismissal from the service,
forfeiture of leave credits and retirement benefits, and disqualification from
reemployment in the government service.
With all due respect to my esteemed colleagues, particularly to the ponente who
is a recognized authority on various fields of law, I cannot help viewing the
circumstances in a different light.
There is no dispute that the order issued by respondent judge has been reversed
by the appellate court, which reversal has now become final for failure of the
accused to appeal therefrom; hence, no damage has been caused except that
complainants had to avail of a judicial remedy to correct the mistake. But, as
adverted to, the overturned order alone does not necessarily make respondent
judge liable administratively, much more civilly or criminally. To be answerable,
the fault of the judge, if any, must be gross or patent, malicious, deliberate or
done in bad faith. 8 Plainly said, fault in this regard may exist only when the error
appears to be deliberate or in bad faith. 9
Thus, bad faith is imputed against respondent judge, first, for insisting that "there
was no need to await publication of Circular No. 1353 for the reason that the
public announcement made by the President in several newspapers of general
circulation lifting foreign exchange controls is total, absolute, without
qualification, and immediately effective," 10 and, second, for "dismissing sua
sponte the eleven criminal cases without even a motion to quash having been
filed by the accused, and without at least giving the prosecution the basic
opportunity to be heard on the matter." 11
But, bad faith is the neglect or refusal to fulfill a duty, not prompted by an honest
mistake, but by some interested or sinister motive. 12 It implies breach of faith
and willful failure to respond to plain and well understood obligation. 13 It does
not simply connote bad judgment or negligence; it imports a dishonest purpose
or some moral obliquity and conscious doing of wrong; it means breach of a
known duty through some motive or interest or ill will. 14
Hence, I cannot ascribe bad faith to respondent judge for I see no insidious
intentions on his part. If he insists that there really is no need to await the
publication of Circular No. 1353, as he does here, it merely shows that he
sincerely believes that there is indeed no necessity to await publication. Whether
his belief is erroneous or not is thus irrelevant. Further, dismissing motu
proprio the eleven criminal cases without affording the prosecution the
opportunity to be heard on the matter, erroneous though it may be, is not
inescapably indicative of bad faith. The immediate dismissal of the charges is a
necessary consequence of the belief that since the restrictions were lifted, no law
was then being violated. It is an elementary principle in procedural law and
statutory construction that the repeal of a penal law deprives the court of
jurisdiction to punish persons charged with a violation of the old law prior to its
repeal. Thus, where the crime no longer exists, prosecution of the person charged
under the old law cannot be had and the action should be dismissed. 15
On the contrary, there is no reason why good faith should not be attributed to
respondent judge. Good faith means that the motive that actuated the conduct in
question was in fact what the actor ascribes to it, that is, that what he gives as his
motive was in truth his motive. 16 Hence, if he honestly believes that the bases
for the criminal charges against accused have been eliminated and thus strikes
down the information and consequently dismisses the charges, respondent judge
cannot be criminally, civilly, or even administratively, held liable.
Good faith and absence of malice, corrupt motives or improper consideration are
sufficient defenses protecting a judicial officer charged with ignorance of the law
and promulgation of an unjust decision from being held accountable for errors of
judgment. This, on the premise that no one called upon to try the facts or interpret
the law in the administration of justice can be infallible. 17
Respondent judge could not have seriously jeopardized the rights of the
prosecution, even if the accused invoked the defense of double jeopardy, since
the remedy of certiorari is very much available. Precisely, as has been pointed
out in the majority opinion, the defense of double jeopardy is unavailing when
the prosecution is denied due process. This is in fact the office of the prevailing
doctrine - to correct indiscretions of lower court judges - which does not
necessarily make them personally liable. In fact, if respondent judge was indeed
in bad faith, he should have given the prosecution an opportunity to be heard, and
after a full-blown trial, acquitted the accused. Then, the defense of double
jeopardy would have been proper and the accused would have gone scot-free.
Thus, in Negado v. Judge Autajay, 18 this Court affirmed the conclusions of the
Investigating Justice of the Court of Appeals that "[w]hen a person seeks
administrative sanction against a judge simply because he has committed an error
in deciding the case against such person, when such error can be elevated to a
higher court for review and correction, the action of such person can only be
suspect."
To equate the failure of accused Marcos to comment on the petition before the
appellate court, and consequently invoke the defense of double jeopardy, with
the errancy of the assailed order, 19 may be indulging in needless speculation.
And to imply that the influence of the accused who is a prominent public figure
brought about the dismissal order is simply not borne out by the records.
Besides, the challenged order of respondent judge can hardly be considered as
grossly erroneous to merit his dismissal. For, while his reasoning may be
erroneous, as it turned out when the reversal of his decision by the appellate court
became final, it is not at all illogical as even the President of the Republic, with
his learned legal advisers, after learning of the dismissal of the cases filed by his
administration against the accused, was quoted as saying that Mrs. Marcos was
an "accidental" beneficiary of the foreign exchange deregulation policy of his
administration. 20 Thus, President Fidel V. Ramos further said that "[t]he forex
deregulation applies to everybody . . . . Now the cases filed by the government
against Mrs. Marcos, numbering about 11 out of 90 have become moot and
academic because of the new regulations that have come out of the Monetary
Board, but that is to her advantage." 21 Where the conclusions of the judge in his
decision are not without logic or reason, it cannot be said that he is incompetent
or grossly ignorant. 22
It has been said that a judge, like Caesar's wife, must not only be pure but beyond
suspicion. 23 Ideally so. But the cold fact is that every overturned decision
provokes suspicion especially from the successful appellant who feels certain that
the lower court indeed erred.
It is settled that "[a] judge should be mindful that his duty is the application of
general law to a particular instance, that ours is a government of laws and not of
men, and that he violates his duty as a minister of justice under such system if he
seeks to do what he may personally consider substantial justice in a particular
case and disregards the general law as he knows it to be binding on him. Such
action may have detrimental consequences beyond the immediate controversy.
He should administer his office with due regard to the integrity of the system of
the law itself, remembering that he is not a depositary of arbitrary power, but a
judge under the sanction of law." 24 As it has been said, he must interpret the
books, and not unload his ideas.
But while a judge must decide in accordance with existing laws and established
jurisprudence, his own personality, character, convictions, values, experiences
and prejudices are only sublimely insignificant and unconsciously dispensable.
In every decision he makes, he is no more and no less human, his own beliefs,
perceptions and imperfections, as well as the laws he is bound to apply, all having
profound influence on his eventual choice. Thus, Mr. Justice Cardozo of the
Supreme Court of the United States once wrote of judges: "We may try to see
things as objectively as we please. None the less, we can never see them with any
eyes except our own." 25 Hence, time and again, lower court judges, if not
reversed by the Court of Appeals and this Court, have continued to set new trails
in jurisprudence without exactly conforming with what has been settled. yet,
whether reversed or merely unregarded, they do not receive displeasure from this
Court; on the contrary, they remain to be effective dispensers of everyday justice.
In fine, there is no substantial proof, nay proof beyond reasonable doubt, that
respondent judge issued the assailed order in bad faith or with conscious and
deliberate intent to perpetrate an injustice.
Mr. Justice Malcolm, speaking for this Court In re Horilleno, 26 said that
"[i]mpeachment proceedings before courts have been said, in other jurisdictions,
to be in their nature highly penal in character and to be governed by the rules of
law applicable to criminal cases." Mr. Chief Justice Fernando, then Associate
Justice of this Court, reiterated the doctrine in Suerte v. Judge Ugbinar 27 where
he said that "[t]his is to defer the basic concept first announced in 1922 in this
jurisdiction . . . in . . . In re Horilleno that proceedings of this character being in
their nature highly penal, the charge must, therefore, be proved beyond
reasonable doubt. To paraphrase the opinion further, there is no showing of the
alleged incompetence and gross ignorance of the law by a preponderance of the
evidence, much less beyond a reasonable doubt. Such an exacting standard has
been adhered to by this Court in subsequent decisions." 28
The law always imputes good faith to judicial action, and the burden is on the
one challenging the same to prove want of it. Contraposed with the "exacting
standard" required, complainant-prosecutors in the instant case failed to prove
the absence of good faith on the part of the respondent judge. Consequently, the
presumption that official duty has been regularly performed stands.
I find it difficult to compare the instant case with those cited in the majority
opinion. In Padilla v. Judge Dizon, 29 respondent not only allowed the accused to
go scot-free, leaving the Commissioner of Customs without any relief against the
accused, the former likewise ordered the release of US$3,000.00 to the accused.
Thus, respondent judge was found guilty not only of gross ignorance of the law,
but also of gross incompetence, and grave and serious misconduct affecting his
integrity and efficiency, and was consequently dismissed from the service. And,
failing to learn a lesson from his earlier administrative case, respondent judge,
after his reinstatement, this time erroneously acquitted the defendants in four (4)
different cases of illegal possession of firearms. Finally the Court said, "[w]hen
it has been clearly demonstrated, as in this case, not only once but four (4) times,
that the judge is either grossly incompetent or grossly ignorant of the penal laws
. . . . he becomes unfit to discharge his judicial office." 30 Unlike former Judge
Dizon, this is the first time respondent Judge Muro is being administratively
charged.
In Buenavista v. Judge Garcia, 31 the Court found respondent guilty of "serious
misconduct, gross ignorance of the law, and knowingly rendering an unjust order
of judgment" for granting bail to an accused who was charged with statutory rape,
for "improper and immoral intervention in brokering a compromise of the
criminal cases" against the accused, and thereafter for granting the motion to
dismiss the rape case on the basis of an Affidavit of Desistance allegedly executed
by the victim who was then a minor. Certainly, the actuations of the respondent
judge in the cited case are far worse than the complained indiscretions of herein
respondent Judge.
In the proceedings instituted against Judge Jocson, 32 he was charged with a litany
of administrative cases, six (6) in all, i.e., from gross misconduct to gross
ignorance of the law, to incompetence, to partiality. While not all the charges
were sufficiently proved, respondent judge was found to be "ignorant of fairly
elementary and quite familiar legal principles and administrative regulations,
(with) . . . a marked penchant for applying unorthodox, even strange theories and
concepts in the adjudication of controversies, (and) exhibits indifference to, and
even disdain for due process and the rule of law, applies the law whimsically,
capriciously and oppressively, and displays bias and partiality." The Court thus
observed, "[t]he different acts of misconduct proven against respondent judge
demonstrate his unfitness to remain in office and to continue to discharge the
functions and duties of a judge, and warrant the imposition on him of the extreme
sanction of dismissal from the service." There is nothing in the records of the
instant case which shows that respondent
Judge Muro, like former Judge Jocson, exhibits a pattern for applying pecant and
unaccepted theories which breed manifest and irreversible injustice.
And, in Uy v. Judge Dizon-Capulong, 33 respondent aggravated her ignorance of
the law by her refusal to abide by the Decision of the appellate court and later of
this Court, showing utter disrespect for and open defiance of higher courts.
Consequently, she was not only found guilty of gross ignorance of the law, but
also of grave and serious misconduct prejudicial to the interest of the judicial
service.
Contrastingly, in a fairly recent case, 34 this Court merely imposed a fine of
P10,000.00 on respondent judge who entertained the petition for bail filed by the
suspects prior to their actual arrest, notwithstanding unrefuted allegations that the
accused were allegedly relatives of the congressman who "sponsored" the
appointment of respondent to the Judiciary. In other case, 35 this Court imposed
a fine of P5,000.00 on respondent judge for ignorance of the law and grave abuse
of authority after he improperly issued a warrant of arrest and set the case for
arraignment, in disregard of proper procedure. And, still in
another, 36 this Court in dismissing the complaint filed against respondent ruled
that a judge cannot be condemned unless his error is so gross and patent as to
produce an inference of ignorance and bad faith or that he knowingly rendered
an unjust decision.
In sum, there is no extrinsic evidence which shows that the assailed order of
respondent Judge Manuel T. Muro was inspired by a conscious and corrupt intent
to do a disservice and commit an atrocity, and thus his dismissal is uncalled for.
Where there is no clear indication from the records that the respondent's assailed
decision was inspired by corrupt motives or a reprehensible purpose, and while
there may be a misjudgment, but not a deliberate twisting of facts to justify the
assailed order, dismissal of respondent judge from the service is not proper. 37
Holding respondent judge liable for issuing the challenged order may curtail the
independence of judges and send the wrong signals to them who are supposed to
exercise their office without fear of reprisal, merely for expressing their
uncorrupted views. Regretfully, litigants may suffer and gain eventual justice
only after costly and long-drawn-out appeals from erroneous decisions, but these
are necessary evils which must be endured to some extent lest judicial
independence and the growth of the law be stifled.
Unlike collegial courts which afford their members the luxury of a deliberation,
a trial judge in handing down his decisions must brave the loneliness of his
solitude and independence. And, while this Court may slightly bend backwards
if only to avoid suspicion of partiality and cliquism to a brother in the profession,
it must also step forward and take the lead to defend him against unsubstantiated
tirades which put to shame and disgrace not only the magistrate on trial but the
entire judicial system as well. As champion — at other times tormentor — of trial
and appellate judges, this Court must be unrelenting in weeding the judiciary of
unscrupulous judges, but it must also be quick in dismissing administrative
complaints which serve no other purpose than to harass them. In dismissing
judges from the service, the Court must be circumspect and deliberate, lest it
penalizes them for exercising their independent judgments handed down in good
faith.
Respondent judge has impressive academic and professional credentials which,
experience shows, are no longer easy to recruit for the judicial service. Above all,
he has served the judiciary with creditable distinction. It is unfeeling, if not unfair,
to purge him without extrinsic evidence of bad faith and then shatter his hopes of
ascending someday the judicial hierarchy which, after all, is the ultimate dream
of every sacrificing trial judge.
I VOTE FOR THE EXONERATION OF RESPONDENT JUDGE.
# Separate Opinions
BELLOSILLO, J.:
In other jurisdictions, it is generally accepted that judges are not accountable by
way of either civil suit or discipline for their official acts, even if clearly
erroneous. Thus, open disregard of statutes, rules, and cases has been held to be
protected official activity. Although a decision may seem so erroneous as to raise
doubts concerning a judge's integrity or physiological condition, absent extrinsic
evidence, the decision itself is insufficient to establish a case against the judge.
The rule is consistent with the concept of judicial independence. An honest judge,
if he were denied the protection of the extrinsic evidence requirement, might
become unduly cautious in his work, since he would be subject to discipline based
merely upon the inferences to be drawn from an erroneous decision. 1
In our jurisdiction, the law is no different. Thus, this Court has repeatedly held
that -
. . . it is a fundamental rule of long standing that a judicial officer when required
to exercise his judgment or discretion is not criminally liable for any error he
commits provided he acts in good faith, that in the absence of malice or any
wrongful conduct . . . the judge cannot be held administratively responsible . . .
for no one, called upon to try the facts or interpret the law in the process of
administering justice can be infallible in his judgment, and to hold a judge
administratively accountable for every erroneous ruling or decision he renders . .
. would be nothing short of harassment or would make his position unbearable. 2
A judge cannot be subjected to liability - civil, criminal, or
administrative - for any of his official acts, no matter how erroneous, as long as
he acts in good faith. 3 He cannot be held to account or answer, criminally, civilly,
or administratively, for an erroneous decision rendered by him in good faith. 4 As
a matter of public policy, in the absence of fraud, dishonesty, or corruption, the
acts of a judge in his judicial capacity are not subject to disciplinary action, even
though such acts are erroneous. 5 It is a general principle of the highest
importance to proper administration of justice that a judicial officer, in exercising
the authority vested in him, shall be free to act upon his own convictions, without
apprehension of personal consequences to himself. This concept of judicial
immunity rests upon consideration of public policy, its purpose being to preserve
the integrity and independence of the judiciary." 6 This being settled doctrine,
there is no choice but to apply it to the instant case.
The facts: Respondent Manuel T. Muro, a native of Masbate, Masbate, was
appointed on 6 November 1986 as Presiding Judge of the Regional Trial Court
of Manila, Br. 54, by then President Corazon C. Aquino. A product of the College
of Law, Far Easter University, he graduated valedictorian in 1955, magna cum
laude, and placed sixth in the Bar examinations. Now he is being charged with
ignorance of the law, grave misconduct and violations of Rules 2.01, 3.01 and
3.02 of the Code of Judicial Conduct 7 for dismissing motu proprio the eleven
(11) cases filed by the Department of Justice Panel of Prosecutors against Ms.
Imelda Romualdez Marcos for Violation of Central Bank Foreign Exchange
Restrictions after President Fidel V. Ramos had announced, which was published
in newspaper reports, the lifting of all foreign exchange restrictions.
The majority opinion finds respondent judge guilty of gross ignorance of the law
and imposes upon him the supreme penalty of dismissal from the service,
forfeiture of leave credits and retirement benefits, and disqualification from
reemployment in the government service.
With all due respect to my esteemed colleagues, particularly to the ponente who
is a recognized authority on various fields of law, I cannot help viewing the
circumstances in a different light.
There is no dispute that the order issued by respondent judge has been reversed
by the appellate court, which reversal has now become final for failure of the
accused to appeal therefrom; hence, no damage has been caused except that
complainants had to avail of a judicial remedy to correct the mistake. But, as
adverted to, the overturned order alone does not necessarily make respondent
judge liable administratively, much more civilly or criminally. To be answerable,
the fault of the judge, if any, must be gross or patent, malicious, deliberate or
done in bad faith. 8 Plainly said, fault in this regard may exist only when the error
appears to be deliberate or in bad faith. 9
Thus, bad faith is imputed against respondent judge, first, for insisting that "there
was no need to await publication of Circular No. 1353 for the reason that the
public announcement made by the President in several newspapers of general
circulation lifting foreign exchange controls is total, absolute, without
qualification, and immediately effective," 10 and, second, for "dismissing sua
sponte the eleven criminal cases without even a motion to quash having been
filed by the accused, and without at least giving the prosecution the basic
opportunity to be heard on the matter." 11
But, bad faith is the neglect or refusal to fulfill a duty, not prompted by an honest
mistake, but by some interested or sinister motive. 12 It implies breach of faith
and willful failure to respond to plain and well understood obligation. 13 It does
not simply connote bad judgment or negligence; it imports a dishonest purpose
or some moral obliquity and conscious doing of wrong; it means breach of a
known duty through some motive or interest or ill will. 14
Hence, I cannot ascribe bad faith to respondent judge for I see no insidious
intentions on his part. If he insists that there really is no need to await the
publication of Circular No. 1353, as he does here, it merely shows that he
sincerely believes that there is indeed no necessity to await publication. Whether
his belief is erroneous or not is thus irrelevant. Further, dismissing motu
proprio the eleven criminal cases without affording the prosecution the
opportunity to be heard on the matter, erroneous though it may be, is not
inescapably indicative of bad faith. The immediate dismissal of the charges is a
necessary consequence of the belief that since the restrictions were lifted, no law
was then being violated. It is an elementary principle in procedural law and
statutory construction that the repeal of a penal law deprives the court of
jurisdiction to punish persons charged with a violation of the old law prior to its
repeal. Thus, where the crime no longer exists, prosecution of the person charged
under the old law cannot be had and the action should be dismissed. 15
On the contrary, there is no reason why good faith should not be attributed to
respondent judge. Good faith means that the motive that actuated the conduct in
question was in fact what the actor ascribes to it, that is, that what he gives as his
motive was in truth his motive. 16 Hence, if he honestly believes that the bases
for the criminal charges against accused have been eliminated and thus strikes
down the information and consequently dismisses the charges, respondent judge
cannot be criminally, civilly, or even administratively, held liable.
Good faith and absence of malice, corrupt motives or improper consideration are
sufficient defenses protecting a judicial officer charged with ignorance of the law
and promulgation of an unjust decision from being held accountable for errors of
judgment. This, on the premise that no one called upon to try the facts or interpret
the law in the administration of justice can be infallible. 17
Respondent judge could not have seriously jeopardized the rights of the
prosecution, even if the accused invoked the defense of double jeopardy, since
the remedy of certiorari is very much available. Precisely, as has been pointed
out in the majority opinion, the defense of double jeopardy is unavailing when
the prosecution is denied due process. This is in fact the office of the prevailing
doctrine - to correct indiscretions of lower court judges - which does not
necessarily make them personally liable. In fact, if respondent judge was indeed
in bad faith, he should have given the prosecution an opportunity to be heard, and
after a full-blown trial, acquitted the accused. Then, the defense of double
jeopardy would have been proper and the accused would have gone scot-free.
Thus, in Negado v. Judge Autajay, 18 this Court affirmed the conclusions of the
Investigating Justice of the Court of Appeals that "[w]hen a person seeks
administrative sanction against a judge simply because he has committed an error
in deciding the case against such person, when such error can be elevated to a
higher court for review and correction, the action of such person can only be
suspect."
To equate the failure of accused Marcos to comment on the petition before the
appellate court, and consequently invoke the defense of double jeopardy, with
the errancy of the assailed order, 19 may be indulging in needless speculation.
And to imply that the influence of the accused who is a prominent public figure
brought about the dismissal order is simply not borne out by the records.
Besides, the challenged order of respondent judge can hardly be considered as
grossly erroneous to merit his dismissal. For, while his reasoning may be
erroneous, as it turned out when the reversal of his decision by the appellate court
became final, it is not at all illogical as even the President of the Republic, with
his learned legal advisers, after learning of the dismissal of the cases filed by his
administration against the accused, was quoted as saying that Mrs. Marcos was
an "accidental" beneficiary of the foreign exchange deregulation policy of his
administration. 20 Thus, President Fidel V. Ramos further said that "[t]he forex
deregulation applies to everybody . . . . Now the cases filed by the government
against Mrs. Marcos, numbering about 11 out of 90 have become moot and
academic because of the new regulations that have come out of the Monetary
Board, but that is to her advantage." 21 Where the conclusions of the judge in his
decision are not without logic or reason, it cannot be said that he is incompetent
or grossly ignorant. 22
It has been said that a judge, like Caesar's wife, must not only be pure but beyond
suspicion. 23 Ideally so. But the cold fact is that every overturned decision
provokes suspicion especially from the successful appellant who feels certain that
the lower court indeed erred.
It is settled that "[a] judge should be mindful that his duty is the application of
general law to a particular instance, that ours is a government of laws and not of
men, and that he violates his duty as a minister of justice under such system if he
seeks to do what he may personally consider substantial justice in a particular
case and disregards the general law as he knows it to be binding on him. Such
action may have detrimental consequences beyond the immediate controversy.
He should administer his office with due regard to the integrity of the system of
the law itself, remembering that he is not a depositary of arbitrary power, but a
judge under the sanction of law." 24 As it has been said, he must interpret the
books, and not unload his ideas.
But while a judge must decide in accordance with existing laws and established
jurisprudence, his own personality, character, convictions, values, experiences
and prejudices are only sublimely insignificant and unconsciously dispensable.
In every decision he makes, he is no more and no less human, his own beliefs,
perceptions and imperfections, as well as the laws he is bound to apply, all having
profound influence on his eventual choice. Thus, Mr. Justice Cardozo of the
Supreme Court of the United States once wrote of judges: "We may try to see
things as objectively as we please. None the less, we can never see them with any
eyes except our own." 25 Hence, time and again, lower court judges, if not
reversed by the Court of Appeals and this Court, have continued to set new trails
in jurisprudence without exactly conforming with what has been settled. yet,
whether reversed or merely unregarded, they do not receive displeasure from this
Court; on the contrary, they remain to be effective dispensers of everyday justice.
In fine, there is no substantial proof, nay proof beyond reasonable doubt, that
respondent judge issued the assailed order in bad faith or with conscious and
deliberate intent to perpetrate an injustice.
Mr. Justice Malcolm, speaking for this Court In re Horilleno, 26 said that
"[i]mpeachment proceedings before courts have been said, in other jurisdictions,
to be in their nature highly penal in character and to be governed by the rules of
law applicable to criminal cases." Mr. Chief Justice Fernando, then Associate
Justice of this Court, reiterated the doctrine in Suerte v. Judge Ugbinar 27 where
he said that "[t]his is to defer the basic concept first announced in 1922 in this
jurisdiction . . . in . . . In re Horilleno that proceedings of this character being in
their nature highly penal, the charge must, therefore, be proved beyond
reasonable doubt. To paraphrase the opinion further, there is no showing of the
alleged incompetence and gross ignorance of the law by a preponderance of the
evidence, much less beyond a reasonable doubt. Such an exacting standard has
been adhered to by this Court in subsequent decisions." 28
The law always imputes good faith to judicial action, and the burden is on the
one challenging the same to prove want of it. Contraposed with the "exacting
standard" required, complainant-prosecutors in the instant case failed to prove
the absence of good faith on the part of the respondent judge. Consequently, the
presumption that official duty has been regularly performed stands.
I find it difficult to compare the instant case with those cited in the majority
opinion. In Padilla v. Judge Dizon, 29 respondent not only allowed the accused to
go scot-free, leaving the Commissioner of Customs without any relief against the
accused, the former likewise ordered the release of US$3,000.00 to the accused.
Thus, respondent judge was found guilty not only of gross ignorance of the law,
but also of gross incompetence, and grave and serious misconduct affecting his
integrity and efficiency, and was consequently dismissed from the service. And,
failing to learn a lesson from his earlier administrative case, respondent judge,
after his reinstatement, this time erroneously acquitted the defendants in four (4)
different cases of illegal possession of firearms. Finally the Court said, "[w]hen
it has been clearly demonstrated, as in this case, not only once but four (4) times,
that the judge is either grossly incompetent or grossly ignorant of the penal laws
. . . . he becomes unfit to discharge his judicial office." 30 Unlike former Judge
Dizon, this is the first time respondent Judge Muro is being administratively
charged.
In Buenavista v. Judge Garcia, 31 the Court found respondent guilty of "serious
misconduct, gross ignorance of the law, and knowingly rendering an unjust order
of judgment" for granting bail to an accused who was charged with statutory rape,
for "improper and immoral intervention in brokering a compromise of the
criminal cases" against the accused, and thereafter for granting the motion to
dismiss the rape case on the basis of an Affidavit of Desistance allegedly executed
by the victim who was then a minor. Certainly, the actuations of the respondent
judge in the cited case are far worse than the complained indiscretions of herein
respondent Judge.
In the proceedings instituted against Judge Jocson, 32 he was charged with a litany
of administrative cases, six (6) in all, i.e., from gross misconduct to gross
ignorance of the law, to incompetence, to partiality. While not all the charges
were sufficiently proved, respondent judge was found to be "ignorant of fairly
elementary and quite familiar legal principles and administrative regulations,
(with) . . . a marked penchant for applying unorthodox, even strange theories and
concepts in the adjudication of controversies, (and) exhibits indifference to, and
even disdain for due process and the rule of law, applies the law whimsically,
capriciously and oppressively, and displays bias and partiality." The Court thus
observed, "[t]he different acts of misconduct proven against respondent judge
demonstrate his unfitness to remain in office and to continue to discharge the
functions and duties of a judge, and warrant the imposition on him of the extreme
sanction of dismissal from the service." There is nothing in the records of the
instant case which shows that respondent
Judge Muro, like former Judge Jocson, exhibits a pattern for applying pecant and
unaccepted theories which breed manifest and irreversible injustice.
And, in Uy v. Judge Dizon-Capulong, 33 respondent aggravated her ignorance of
the law by her refusal to abide by the Decision of the appellate court and later of
this Court, showing utter disrespect for and open defiance of higher courts.
Consequently, she was not only found guilty of gross ignorance of the law, but
also of grave and serious misconduct prejudicial to the interest of the judicial
service.
Contrastingly, in a fairly recent case, 34 this Court merely imposed a fine of
P10,000.00 on respondent judge who entertained the petition for bail filed by the
suspects prior to their actual arrest, notwithstanding unrefuted allegations that the
accused were allegedly relatives of the congressman who "sponsored" the
appointment of respondent to the Judiciary. In other case, 35 this Court imposed
a fine of P5,000.00 on respondent judge for ignorance of the law and grave abuse
of authority after he improperly issued a warrant of arrest and set the case for
arraignment, in disregard of proper procedure. And, still in
another, 36 this Court in dismissing the complaint filed against respondent ruled
that a judge cannot be condemned unless his error is so gross and patent as to
produce an inference of ignorance and bad faith or that he knowingly rendered
an unjust decision.
In sum, there is no extrinsic evidence which shows that the assailed order of
respondent Judge Manuel T. Muro was inspired by a conscious and corrupt intent
to do a disservice and commit an atrocity, and thus his dismissal is uncalled for.
Where there is no clear indication from the records that the respondent's assailed
decision was inspired by corrupt motives or a reprehensible purpose, and while
there may be a misjudgment, but not a deliberate twisting of facts to justify the
assailed order, dismissal of respondent judge from the service is not proper. 37
Holding respondent judge liable for issuing the challenged order may curtail the
independence of judges and send the wrong signals to them who are supposed to
exercise their office without fear of reprisal, merely for expressing their
uncorrupted views. Regretfully, litigants may suffer and gain eventual justice
only after costly and long-drawn-out appeals from erroneous decisions, but these
are necessary evils which must be endured to some extent lest judicial
independence and the growth of the law be stifled.
Unlike collegial courts which afford their members the luxury of a deliberation,
a trial judge in handing down his decisions must brave the loneliness of his
solitude and independence. And, while this Court may slightly bend backwards
if only to avoid suspicion of partiality and cliquism to a brother in the profession,
it must also step forward and take the lead to defend him against unsubstantiated
tirades which put to shame and disgrace not only the magistrate on trial but the
entire judicial system as well. As champion — at other times tormentor — of trial
and appellate judges, this Court must be unrelenting in weeding the judiciary of
unscrupulous judges, but it must also be quick in dismissing administrative
complaints which serve no other purpose than to harass them. In dismissing
judges from the service, the Court must be circumspect and deliberate, lest it
penalizes them for exercising their independent judgments handed down in good
faith.

Respondent judge has impressive academic and professional credentials which,

experience shows, are no longer easy to recruit for the judicial service. Above all,
he has served the judiciary with creditable distinction. It is unfeeling, if not unfair,
to purge him without extrinsic evidence of bad faith and then shatter his hopes of
ascending someday the judicial hierarchy which, after all, is the ultimate dream
of every sacrificing trial judge.

I VOTE FOR THE EXONERATION OF RESPONDENT JUDGE.

Notes.—While judges should not be disciplined for inefficiency on account

merely of occasional mistakes of errors of judgment, it is imperative that they be
conversant with basic legal principles like the one involved here. (Lim vs.
Domagas, 227 SCRA 258 [1993])

Judge’s disregard of an established rule of law by depriving the prosecution of

the opportunity to prove that the evidence of guilt against accused was strong,
amounted to gross ignorance of the law, which is subject to disciplinary action.
(Libarios vs. Dabalos, 199 SCRA 48 [1991]) State Prosecutors vs. Muro, 236
SCRA 505, A.M. No. RTJ-92-876 September 19, 1994
G.R. No. 90637.October 29, 1992
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PRUDENCIO
PUGAL, ANTONIO SORIANO and RICARDO ADDUCA, accused,
PRUDENCIO PUGAL, accused-appellant.
Criminal Procedure; Evidence; Flight; There is no case law holding that non-
flight is a conclusive proof of innocence.––This, at best, is a mere conjectural
pose which cannot stand against the positive identification of the accused.
Appellant’s pretended innocence is clearlynon sequitur to his decision not to flee.
Apart from the fact that there is no case law holding that non-flight is a conclusive
proof of innocence, the argument does not hold weight in the light of the positive
identification of the appellant. The material factor here is that there is positive
identification of the accused as the author or, more accurately, co-author of the
crime.
Same; Same; Same; Same; The fact that accused did not flee from the scene of
the crime is not a sufficient ground to exculpate them from the proven criminal
liability.––Generally, the decision of an accused not to flee despite an opportunity
to do so is hardly characteristic of a guilty person seeking to escape retribution
for his crime. But this is not without exceptions. In a number of cases, we have
had the occasion to rule that the fact that accused did not flee from the scene of
the crime is not a sufficient ground to exculpate them from the proven criminal
liability.
Same; Same; Credibility of witnesses; Generally, the failure of a witness to report
at once to the police authorities the crime he had witnessed cannot be taken
against him for it is not uncommon for a witness to a crime to show some
reluctance about getting involved in a criminal case.––As a general rule, the
failure of a witness to report at once to the police authorities the crime he had
witnessed cannot be taken against him for it is not uncommon for a witness to a
crime to show some reluctance about getting involved in a criminal case. The
natural reticence of most people to get involved in a criminal case is of judicial
notice, and the fear of eyewitnesses when townmates are involved in the
commission of the crime is understandable for they may provoke retaliation from
the accused. The delay, when adequately explained, does not impair the
credibility of the witness; neither will it render his testimony biased nor destroy
its probative value.
Same; Same; Same; Mere relationship of the witnesses to the victim does not
render their clear and positive testimony less worthy of full faith and credit.––
This Court has repeatedly held that mere relationship of the witnesses to the
victim does not render their clear and positive testimony less worthy of full faith
and credit. On the contrary, their natural interest in securing the conviction of the
guilty would deter them from implicating persons other than the culprits, for
otherwise, the latter would thereby gain immunity. Hence, the closeness of their
relationship to the deceased should not, contrary to appellant’s view, be deemed
erosive of their credibility as witnesses. That they are the wife and son of the
victim does not make them incompetent as witnesses, nor should it serve to
detract from the credit otherwise due them.
Same; Same; Same; Same; It is a jurisprudentially embedded and conceded rule
that the mere fact that the witness is a relative is not a valid or sufficient ground
to disregard the former’s testimony nor does it render the same less worthy of
credit in the absence of any ill motive.––Besides, there is no iota of evidence to
show that the family of the victim was actuated by improper motives to testify
falsely against the accused. It is a jurisprudentially embedded and conceded rule
that the mere fact that the witness is a relative is not a valid or sufficient ground
to disregard the former’s testimony nor does it render the same less worthy of
credit, in the absence of any ill motive. Futhermore, the prosecution witnesses
are not merely relatives of the deceased; they are likewise victims of the robbery
committed by the accused.
Same; Same; Alibi; For alibi to be given credence, it must not only appear that
the accused interposing the same was at some other place but also that it was
physically impossible for him to be at the scene of the crime at the time of its
commission.––Time and again we have stressed, virtually to the point of
repletion were it not for its pertinency, that alibi is one of the weakest defenses
an accused can invoke because it is easy of fabrication. It cannot prevail over the
positive identification of prosecution witnesses. To be given credence, it must not
only appear that the accused interposing the same was at some other place but
also that it was physically impossible for him to be at the scene of the crime at
the time of its commission.
Same; Same; Conspiracy; Trial court did not err in finding the existence of a
conspiracy.––Finally, conspiracy has been sufficiently established in this case.
The concerted acts of the accused began with the deceased Juanito being called
by Pugal and Adduca who purposely made themselves identifiable to facilitate
their entry into the house. Once the door was opened, three of the accused who
were allegedly wearing masks entered the house while Pugal pulled Jacinto
outside. Then one of the three who entered the house stood guard at the door
while the two others ransacked the place. Thereafter, upon hearing the clapping
of hands from the outside, the three malefactors immediately left. The deceased
was tied to the coconut tree and then shot to death. By these concerted actions, it
is beyond cavil that the accused acted in unison and cooperated with each other
towards the accomplishment of a common criminal design, which was to rob the
Salamancas and thereafter kill Jacinto. The trial court definitely did not err in
finding the existence of a conspiracy.
Same; Same; Same; Where conspiracy is shown to exist, the act of one is the act
of all.––Where conspiracy is shown to exist, the act of one is the act of all. While
it has not been established that it was appellant who actually shot the victim,
conspiracy having been found to exist, he is equally guilty of the crime of robbery
with homicide.
Criminal Law; Robbery with homicide; Whenever homicide has been committed
as a consequence or on the occasion of the robbery, all those who took part as
principals in the robbery will also be held guilty as principals of the special
complex crime of robbery with homicide although they did not actually take part
in the homicide.––The rule is whenever homicide has been committed as a
consequence or on the occasion of the robbery, all those who took part as
principals in the robbery will also be held guilty as principals of the special
complex crime of robbery with homicide although they did not actually take part
in the homicide, unless it clearly appears that they endeavored to prevent the
homicide. There is nothing in the records to show that the exception applies in
this case. People vs. Pugal, 215 SCRA 247, G.R. No. 90637 October 29, 1992
1
In an information filed on November 5, 1985 before the Regional Trial Court
of Tabuk, Branch 25, Kalinga-Apayao, herein accused Prudencio Pugal, Antonio
Soriano, Ricardo Adduca and one Artemio Panagan were charged with the crime
of "Robbery with Homicide with the Use of Unlicensed Firearm" under Article
294, paragraph 1, of the Revised Penal Code in relation to Presidential Decree
No. 1866, committed as follows:
That on or about the evening of July 23, 1985 at Riverside, Laya West, Tabuk,
Kalinga-Apayao and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating and mutually aiding one another, with
treachery and evident premeditation, with intent to gain and by the use of force,
violence and intimidation of persons, did then and there willfully, unlawfully,
and feloniously take and carry away the amount of ONE THOUSAND
(P1,000.00) Pesos, Philippine Currency, belonging to the victim and his wife, to
their damage and prejudice in said amount, and by reason and on the occasion of
said Robbery, the accused tied said JACINTO SALAMANCA to a coconut tree
and thereafter, willfully, and feloniously shot Jacinto Salamanca on different
parts of his body (and) said multiple gunshot wounds caused his direct and
immediate death.
The crime is aggravated by nocturnity, craft, dwelling, treachery and abuse of
superior strength.
ALL CONTRARY TO LAW.
Pursuant to the order of arrest issued on November 5, 1985, the accused were
arrested and committed to the custody of the Provincial Warden on November
22, 1985.
On December 4, 1985, accused Prudencio Pugal, Antonio Soriano, Ricardo
Adduca and Artemio Panagan, assisted by their defense counsel, Attys. Cesar
Purugganan and William F. Claver, were arraigned and entered a plea of not
guilty to the offense charged.
Accused Ricardo Adduca posted his bail bond and was ordered released on
October 2, 1986. However, on the basis of a motion to withdraw by his
bondsman, Adduca was re-arrested and committed to the provincial jail. While
detained therein, Adduca escaped. On February 2, 1989, the trial court issued an
order for his arrest but until now he remains at large.
Accused Antonio Soriano was "receipted" for by a certain Roberto Baggay, the
Acting Mayor of Pudtol, Kalinga-Apayao, inexplicably without the approval of
or an order from the trial court authorizing him to do so. Subsequently, said
accused also remained at large.
The trial court dismissed the case as against accused Artemio Panagan upon
motion of the prosecution on the basis of an affidavit of desistance of Erlinda
Salamanca, wife of the victim, wherein she stated that the former was not one of
those who killed her husband. Trial, however, proceeded against the herein three
accused since they had all been arraigned and the absence of accused Soriano and
Adduca was unjustified.
The record show that on January 11, 1989, accused Prudencio Pugal had been
ordered released from jail after filing his bail bond. However, after the
promulgation of the judgment of the trial court hereunder indicated, said court
issued an order on July 17, 1989 cancelling his bail bond and committing him to
the provincial jail where he was accordingly detained. 2
Parenthetically, aside from the above-named accused charged in the information
filed by the Provincial Fiscal of Kalinga-Apayao, Pat. Raymund Caseñas of
Pinukpuk, Kalinga-Apayao was also charged in connection with the said killing
of Jacinto Salamanca but the case against him was forwarded to the military
tribunal pursuant to the provisions of Presidential Decree No. 1850, as
amended, 3 and the same is not involved in the present proceeding.
On July 17, 1989, the trial court rendered judgment disposing as follows:
WHEREFORE, judgment is hereby rendered finding the accused PRUDENCIO
PUGAL, RICARDO ADDUCA and ANTONIO SORIANO guilty beyond
reasonable doubt as principals of the crime of ROBBERY WITH HOMICIDE
WITH THE USE OF UNLICENSED FIREARM, defined and penalized under
Article 294, in relation with P.D. 1866, sentencing each of the accused to suffer
the penalty of Reclusion Perpetua, to indemnify jointly and severally the heirs of
the deceased Jacinto Salamanca the amount of Thirty Thousand Pesos
(P30,000.00) plus Forty Thousand Pesos (P40,000.00) moral and exemplary
damages without subsidiary imprisonment in case of insolvency pursuant to
Article 39 of the Revised Penal Code and to pay the costs.
SO ORDERED. 4
Appellant Prudencio Pugal, the lone accused who appealed to us from said
decision, assigns the following errors allegedly committed by the court a quo:
1. The trial court grievously erred in holding that the killing of the victim was
positively witnessed by prosecution witnesses Hizon and Erlinda Salamanca;
2. The lower court grievously erred in giving full evidentiary weight and credence
to the testimonies of Hizon and Erlinda Salamanca who are biased and whose
testimonies are pregnant with serious and material inconsistencies,
improbabilities and shaky;
3. The lower court erred in finding that appellant Prudencio Pugal was the one
who pulled the deceased from inside the house, brought him outside and tied him
to a coconut tree;
4. The lower court erred in disregarding the plea of alibi by appellant Prudencio
Pugal;
5. The lower court committed grave error in not acquitting Prudencio Pugal on
ground of reasonable doubt. 5
The prosecution presented as witnesses Hizon Salamanca, son of the deceased
Jacinto Salamanca; Erlinda Salamanca, wife of said victim; Dr. Jaime Almora;
and Atty. Wayne Odiem, whose collective testimonies establish the facts of this
case as hereunder summarized.
On July 23, 1985, at around 9:00 P.M., Erlinda Salamanca, together with her son
Hizon and daughter-in-law Lolita, was resting inside their house at Laya West,
Tabuk, Kalinga-Apayao. Her husband, Jacinto Salamanca, had just started to eat
supper when the dogs started barking and they heard and recognized the voice of
Prudencio Pugal call "Apo" three times. 6 Jacinto, who was followed by Erlinda,
went to the sala and asked, "Who are you?" Somebody answered, "Dakami,"
meaning "We are the ones." When Jacinto again called out, "Who are you," the
person outside replied, "We are the ones, we came from Dagupan." Jacinto and
Erlinda peeped through the jalousie window and they saw Prudencio Pugal and
Ricardo Adduca standing near the door. The place was then lighted by a 20-watt
flourescent lamp. 7
Erlinda told Jacinto to open the door. Once it was opened, however, Pugal pulled
Jacinto out of the house, and then three masked men rushed inside the house. One
of the men who had a long armalite rifle stood guard at the door, while the other
two, one of whom had a short firearm, entered the house. 8 Adduca, one of the
two men who came inside, demanded money and an armalite rifle from the
occupants of the house, and when the latter failed to produce any, Adduca
ransacked the house. 9 Erlinda was thus compelled to give her earnings for the
day amounting to P1,000.00 and, in addition, she gave the ring of her daughter-
in-law. They were then ordered and forced to lie on the floor face down.
Subsequently, Erlinda and Hizon heard the clapping of hands from outside the
house. 10 Sensing that nobody was guarding them anymore, Erlinda and Hizon
crawled towards the window. From there, they saw the men drag Jacinto and tie
him to a coconut tree with a rope. Erlinda also saw Pugal slap and kick Jacinto.
Then, the man with an armalite rifle pointed his gun upwards and fired it several
times. Afterwards, he moved backward, pointed the gun at Jacinto, and shot the
latter several times. 11
The malefactors thereafter fled towards the north and when they reached the
"canto" leading to Cabaruan, another gunshot was heard. Upon seeing that the
culprits were already far away, Erlinda and Hizon rushed to where Jacinto was,
only to find his already lifeless body. Erlinda then sent Hizon to call for assistance
and, in no time, the barangay people and the police arrived at the scene of the
crime. When Jacinto's body was brought to their house, Hizon noticed that his
father's false teeth were missing. Efforts to look for the same at and near the place
where Jacinto was killed proved futile. 12
Two days after Jacinto died, Pugal went to the house of the Salamancas and
handed over to Hizon the missing artificial dentures of Jacinto which he allegedly
found near the place where the victim was killed. Puga stayed in the house of the
Salamancas for the entire duration of the wake until the ninth day of prayer. 13
On July 24, 1985, Dr. Jaime Almora, a resident physician at the Kalinga-Apayao
Provincial Hospital, conducted an autopsy on Jacinto Salamanca and submitted
the following —
POSTMORTEM FINDINGS
External Examination = Cadaver fully clothed, flaccid, with no sign of rigor
mortis or lividity or decomposition.
Head = Left side of skull sagging and with multiple fracture due to multiple
gunshot wounds with loss of some brain tissue and left eye.
Chest = Gunshot wound with point of entry measuring 5mm to 7mm at the 54th
ics mid clavicular line directed posteriorly, medially & horizontally exiting at the
(L) mid clavicular line level of the 8th lcs.
Extremities = R Thigh = grazing wound directed downward at the anterior upper
third of R thigh.
L Thigh = entry wound at the middle third, medial aspect of left thigh directed
laterally, posteriorly downward.
Left leg = Entry wound at the antero-medial aspect of left leg middle third with
no point of exit. Copper Jacket of Bullet recovered.
CAUSE OF DEATH: Multiple gunshot wound(s), head, chest, thigh, and leg. 14
It appears that Erlinda and Hizon Salamanca gave their sworn statements on
August 16 15 and September 8, 1985, 16 respectively, both to Police Sgt. Artemio
Catabay in the investigation room of the Tabuk Police Station at Tabuk, Kalinga-
Apayao.
The records further reveal that on September 24, 1985, accused Antonio Soriano,
accompanied by Sgts. Taguiam and Aquino, went to the office of prosecution
witness Atty. Wayne Odiem, District Citizen Attorney of the Citizens Legal
Assistance Office, to seek the latter's help in the taking of Soriano's confession.
After having informed Soriano of his constitutional rights to remain silent, to
counsel, and to engage a counsel of his own choice, with the requisite warnings
on the possible use of his statement, Atty. Odiem assisted Soriano while the latter
gave his extrajudicial confession 17 to the police investigators. During the
investigation, Soriano, never intimated to him that the former was coerced and
threatened into giving his statement wherein he implicated herein appellant Pugal
as one of the assailants.
As against the straightforward testimonies of the two principal prosecution
witnesses, appellant could only present the defense of alibi cum denial. Pugal
stated that on the night of July 23, 1985, he was at home at Laya West, which is
about one and a half kilometers away from the house of the victim, and that he
did not notice any unusual incident that night. 18 On the other hand, the second
defense witness, Lydia Magno, testified that appellant is her uncle, that he and
Adduca were part of the "ronda" which went around the barrio, but nowhere in
her testimony did she state anything about the exact whereabouts of Adduca or
appellant on that particular night. 19
I. Appellant Pugal asserts that the trial court erred in relying on the testimonies
of Erlinda and Hizon Salamanca which are allegedly replete with inconsistencies
and contradictions.
First, he contends that Hizon testified that the two men who entered the house
wore masks, whereas Erlinda testified that their faces were not covered. This
inconsistency, he claims, cannot be considered trivial.
As correctly observed by the Solicitor General, appellant was obviously
confused. Hizon's testimony was in answer to the question when the robbers were
already inside the house, while Erlinda's was with respect to the first time she
saw appellant and his co-accused who were then calling from outside the
house. 20 Thus, Hizon Salamanca stated:
Q Now, Mr. Witness, you said that particular night and time of July 23, 1985,
two (2) men entered your house, were they using mask?
 A Yes, sir. 21
and the testimony of Erlinda Salamanca was as follows:
Q Now, you said you saw Prudencio Pugal and Ricardo Adduca when
you peeped with your husband through the jalous(ie). How were you
able to identify them?
A Because during that night time we used 20 watts flourescent lamp and
so I saw them there, sir.
Q How far were they — this Adduca and Pugal when you saw them?
A Pugal is near the window and Ricardo Adduca is behind Prudencio
Pugal, sir.
Q Were they in mask?
A No, they were not in mask because we opened it, if they were using a
mask we did (sic, would) not open the door, sir. 22
Furthermore, there could be no inconsistency to speak of precisely because
Erlinda likewise testified that the accused were already wearing masks when they
entered the house, in effect corroborating the testimony of Hizon on this point.
Hence, in her direct examination, Erlinda declared —
Q Can you identify any of the two (2) persons who actually entered your
house?
A I can not identify the other one because he has a very tight mask but
I can identify the other one because he has a loose mask which when
talking he bite (sic) his bonnet with his mouth, sir. 23
which she further clarified in her cross-examination:
Q Let us go back to the crime when the two persons stood guard to the
door of the house, one allegedly Ricardo Adduca rushed in to search to
(sic) your belonging(s), these three (3) persons were all masked, is it not
Mrs. Salamanca?
A Yes, sir. It was only Pugal who was not masked, sir. 24
The fact that it was only appellant who was not masked was corroborated by
Hizon with the same declaration in court:
Q You said that the incident happened at around 9:00 o'clock in the night
of July 23, 1985, my question is: How could you have recognized
Prudencio Pugal as the one who pulled your father?
A It is because we have twenty (20) watts fluorescent lamp which
energized (sic) by a battery — 12 volts battery.
Q Was Prudencio Pugal masked at that time, Mr. Witness?
A No, sir. 25
Second, appellant theorizes that it is hard to believe that a person who will kill
someone who is well known in the community will not hide his face, this being
contrary to human nature and common experience. Appellant premises this
postulation on his presence at the house of the victim during the wake until the
ninth day of prayer, which fact supposedly negated any and all indicia of guilt on
his part.
This, at best, is a mere conjectural pose which cannot stand against the positive
identification of the accused. Appellant's pretended innocence is clearly non
sequitur to his decision not to flee. Apart from the fact that there is no case law
holding that non-flight is a conclusive proof of innocence, the argument does not
hold weight in the light of the positive identification of the appellant. The material
factor here is that there is positive identification of the accused as the author or,
more accurately, co-author of the crime. 26
Generally, the decision of an accused not to flee despite an opportunity to do so
is hardly characteristic of a guilty person seeking to escape retribution for his
crime. 27 But this is not without exceptions. In a number of cases, we have had
the occasion to rule that the fact that accused did not flee from the scene of the
crime is not a sufficient ground to exculpate them from the proven criminal
liability.
Thus, in People vs. Gardon, 28 we held: "That appellant did not flee from the
scene of the crime is not necessarily indicative of a clear conscience. He may
have smugly thought that the two men fishing on the pier would not be able to
identify him, or that they would keep "quiet about it" at his behest." In People
vs. Bautista, 29 we further ruled that:
The fact that the appellant joined the search for the victim and that he and a certain
Gabriel Madlangbayan went to Noveleta, Cavite to buy a coffin for the victim
does not disprove his culpability of the offense charged nor strengthen his claim
of innocence. . . .
. . . The solicitous attitude of appellant was part of his craft to divert attention
from him and appear blameless. Appellant assumed this posture of innocence
despite his awareness that his charged because he was doubly certain that
Francisca, who feared for her life as well as the lives of her relatives, would not
expose him.
Still, in another case, this Court held that:
In some cases of murder, robbery, or even rape where a person is a prime suspect,
his not fleeing may be a badge of innocence. In the present case, however, the
crime was committed with impunity on three occasions by one who thought the
victim would not complain. Under the circumstances of this case, the appellant
would most likely not have been discovered if Josephine did not become
pregnant. The appellant did not have to flee. 30
And, finally, in People vs. Luardo, et al. 31 where the accused, as in the case at
bar, likewise attended the vigil and funeral of the deceased, the Court, did not
apply the general rule with this explanation:
The defense laid stress on the fact that appellants could have escaped, but did not.
On the contrary, both Bedico and Capio attended the vigil and funeral of the
deceased and even helped carry the bier of the latter. . . .
Verily, there is no argument on the fact that flight is indicative of guilty so that it
may be considered in favor of the accused in the case at bar that they did no
escape. Nonetheless, it has also been held by this Court that the fact that the
accused did not take flight but even helped the police to locate the supposed
culprits, is not a sufficient ground to exculpate them from the proved criminal
liability.
Third, appellant asseverates that the failure of Hizon and Erlinda Salamanca to
immediately give their statements to the police (which they gave only after the
lapse of 67 days after the incident took place) affects their credibility.
As a general rule, the failure of a witness to report at once to the police authorities
the crime he had witnessed cannot be taken against him for it is not uncommon
for a witness to a crime to show some reluctance about getting involved in a
criminal case. The natural reticence of most people to get involved in a criminal
case is of judicial notice, and the fear of eyewitnesses when townmates are
involved in the commission of the crime is understandable for they may provoke
retaliation from the accused. The delay, when adequately explained, does not
impair the credibility of the witness; neither will it render his testimony biased
nor destroy its probative value. 32
In the case at bar, the two principal witnesses for the prosecution gave more than
adequate reason for their initial reluctance in giving their sworn statements to the
police, that is, fear for their safety and their lives. As a matter of fact, after the
ninth day of prayer for the deceased, the Salamancas had to leave their house and
transfer to another place in apprehension of possible reprisals from the culprits.
When asked why he failed to immediately report and disclose the identity of the
suspects, Hizon Salamanca testified:
Q Now, Mr. Hizon Salamanca, in spite (of) the death of your father, in
spite of the threats of Pugal, and in spite of the fact that you mauled him
before and you know that he is smaller than you are, you did not report
his name to the police — that he was the one who entered your house
and killed your father?
A Yes, sir, because we were afraid, for fear that they might come back
for us.
Q You did not even tell that to anyone else — You told it only to your
mother, is that correct?
A Yes, sir.
Q You did not even tell that to your wife?
A I told this to my wife and to my brothers.
Q Who were your brothers?
A Raymundo and all my brothers, sir.
Q You gave this information to them that Pugal was one of the
murderers immediately after the incident, is that correct?
A No, I did not say it immediately to my brothers because they were
studying in Tuguegarao.
Q But immediately after the killing the policemen of Tabuk came to
Laya West, is that correct?
A Yes, sir. Q But when you gave your statements two months and seven days after
the incident, you were no longer afraid?
Q They made an investigation of the crime?
A No more, sir, because they were already apprehended.
A Yes, sir.
Q It did not occur to you that there are still others at the time and they
Q And they asked you know (sic) the killers, is it not? could go out after you?
A Yes, sir. A No more, sir, because they (sic) already there in the jail,
Q And you told them you do not know because you were afraid? depressed. 33

A Yes, sir.
Q According to you — you stayed in Tabuk for the whole seven days
that your father was in his wake, is that correct?
A Yes, sir.
Q And there were many visitors who came even the Mayor of Tabuk
came to your house, is that correct?
A Yes, sir.
Q And they asked you if you know who the killers were?
A Yes, sir.
Q But just the same you stick (sic) your belief that you should not tell
them the truth?
A Yes, sir.
COURT:
Did you not know that if only you told them the identity of the killers of
your father, the police could have arrested them and put them to jail and
for this reason there would be no more danger in your life?
WITNESS:
Yes, but I am afraid, for fear that they might have still other companions.
Fourth, appellant claims that Hizon and Erlinda are biased as witnesses
considering that they are related and very close to the deceased, hence they have
the tendency to exaggerate or give false color to their testimonies.
This Court has repeatedly held that mere relationship of the witnesses to the
victim does not render their clear and positive testimony less worthy of full faith
and credit. On the contrary, their natural interest in securing the conviction of the
guilty would deter them from implicating persons other than the culprits, for
otherwise, the latter would thereby gain immunity. 34 Hence, the closeness of
their relationship to the deceased should not, contrary to appellant's view, be
deemed erosive of their credibility as witnesses. That they are the wife and son
of the victim does not make them incompetent as witnesses, nor should it serve
to detract from the credit otherwise due them. 35
Besides, there is no iota of evidence to show that the family of the victim was
actuated by improper motives to testify falsely against the accused. It is a
jurisprudentially embedded and conceded rule that the mere fact that the witness
is a relative is not a valid or sufficient ground to disregard the former's testimony
nor does it render the same less worthy of credit, in the absence of any ill
motive. 36 Furthermore, the prosecution witnesses are not merely relatives of the
deceased; they are likewise victims of the robbery committed by the accused.
II. Appellant's defense hinges primarily on alibi. He claims though that while
alibi is the weakest of all defenses, nevertheless, where the evidence for the
prosecution is weak and betrays lack of concreteness on the question of whether
or not the accused committed the crime charged, the defense of alibi assumes
importance.

COURT: Time and again we have stressed, virtually to the point of repletion were it not
for its pertinency, that alibi is one of the weakest defenses an accused can
Proceed. invoke 37 because it is easy of fabrication. 38 It cannot prevail over the positive
identification of prosecution witnesses. 39 To be given credence, it must not only
appear that the accused interposing the same was at some other place but also that
it was physically impossible for him to be at the scene of the crime at the time of
its commission. 40
In the case at bar, appellant was positively identified by Hizon and Erlinda. The
following observations thereon in appellee's brief accordingly merit our approval:
. . . Appellant was not only seen and recognized through his face, he was
identified also through his voice.
As testified to by both prosecution witnesses, Erlinda and Hizon, appellant was
the one who called "Apo" for three times and also the one who replied "Dakami"
and "Naggapu kami Idiay Dagupan", when asked. (TSN, p. 7 Erlinda S.; TSN, p.
9, testimony of Salamanca). The voice of appellant is familiar to both Erlinda and
Hizon because they have had occasions in the past to talk to him oftenly
considering that appellant is their neighbor and barriomate for more than 20
years. (TSN, p. 7, Erlinda S.; TSN, p. 8, Hizon S.).
Appellant was also seen and identified by prosecution witnesses as he was not
wearing any mask and neither was his face covered during the time he was calling
from outside the house. (TSN, p. 8, Erlinda S.; TSN, p. 13-16, Hizon S.).
Appellant was recognized by the prosecution witnesses because of the fluorescent
lamp in front of the house energized by a 12-volt battery then illuminating their
house. Besides, the night then was a moonlit night. (TSN, p. 8, Erlinda S.; TSN,
p. 13, Hizon S.).
Worthy to note is the testimony of Erlinda that when she recognized the identity
of the persons calling from the outside, she even told her husband to open the
door. This is but natural and in accord with common observation and human
experience.
Otherwise, if the persons calling were masked as claimed by the defense, the
natural and logical reaction would be to suspect that they were bad elements and
there would be reason not to open the door. . . . 41
The pretension that appellant was allegedly at his house at the time of the incident
cannot stand against the clear and positive identification by the prosecution
witnesses. Also, the Solicitor General correctly concluded that considering the
proximity in the distance between the two houses, it was not physically
impossible for appellant to be at the locus criminis and then return to his house
shortly afterwards.
Finally, conspiracy has been sufficiently established in this case. The concerted
acts of the accused began with the deceased Juanito being called by Pugal and
Adduca who purposely made themselves identifiable to facilitate their entry into
the house. Once the door was opened, three of the accused who were already
wearing masks entered the house while Pugal pulled Jacinto outside. Then one of
the three who entered the house stood guard at the door while the two others
ransacked the place. Thereafter, upon hearing the clapping of hands from the
outside, the three malefactors immediately left. The deceased was tied to the
coconut tree and then shot to death. By these concerted actions, it is beyond cavil
that the accused acted in unison and cooperated with each other towards the
accomplishment of a common criminal design, which was to rob the Salamancas
and thereafter kill Jacinto. The trial court definitely did not err in finding the
existence of a conspiracy.
Where conspiracy is shown to exist, the act of one is the act of all. 42 While it has
not been established that it was appellant who actually shot the victim, conspiracy
having been found to exist, he is equally guilty of the crime of robbery with
homicide. The rule is whenever homicide has been committed as a consequence
or on the occasion of the robbery, all those who took part as principals in the
robbery will also be held guilty as principals in the robbery will also be held
guilty as principals of the special complex crime of robbery with homicide
although they did not actually take part in the homicide, unless it clearly appears
that they endeavored to prevent the homicide. 43 There is nothing in the records
to show that the exception applied in this case.
We, however, reject that portion of the decision of the trial court finding that the
liability of the accused for the crime of robbery with homicide was attended by,
and ostensibly should be modified by the circumstances of, their use of
unlicensed firearms. No evidence was presented to show, and even the trial court
made no finding, that the firearms used by herein accused were unlicensed. In
addition, the indemnity for which the accused is liable for the death of Jacinto
Salamanca should be increased to P50,000.00 in accordance with the policy
adopted by the Court en banc on August 30, 1990. 44
WHEREFORE, subject to the above-stated modifications, the judgment of the
court a quo is hereby AFFIRMED in all other respects.
SO ORDERED.
Note.––The degree of actual participation in the commission of the crime is
immaterial in conspiracy (People vs. Cantuba, 183 SCRA 289) People vs. Pugal,
215 SCRA 247, G.R. No. 90637 October 29, 1992
 G.R. No. 178158. December 4, 2009.
STRATEGIC ALLIANCE DEVELOPMENT CORPORATION, petitioner,
vs. RADSTOCK SECURITIES LIMITED and PHILIPPINE NATIONAL
CONSTRUCTION CORPORATION, respondents. ASIAVEST
MERCHANT BANKERS BERHAD, intervenor.
G.R. No. 180428. December 4, 2009.
LUIS SISON, petitioner, vs. PHILIPPINE NATIONAL CONSTRUCTION
CORPORATION and RADSTOCK SECURITIES LIMITED, respondents.
Actions; Pleadings and Practice; Intervention; While the motion to intervene
should be filed before rendition of judgment by the trial court, the rule is not
absolute—interventions have been allowed even beyond the prescribed period in
the Rule in the higher interest of justice.—The Court of Appeals denied
STRADEC’s motion for intervention on the ground that the motion was filed
only after the Court of Appeals and the trial court had promulgated their
respective decisions. Section 2, Rule 19 of the 1997 Rules of Civil Procedure
provides: SECTION 2. Time to intervene.—The motion to intervene may be filed
at any time before rendition of judgment by the trial court. A copy of the
pleading-in-intervention shall be attached to the motion and served on the
original parties. The rule is not absolute. The rule on intervention, like all other
rules of procedure, is intended to make the powers of the Court completely
available for justice. It is aimed to facilitate a comprehensive adjudication of rival
claims, overriding technicalities on the timeliness of the filing of the claims. This
Court has ruled: [A]llowance or disallowance of a motion for intervention rests
on the sound discretion of the court after consideration of the appropriate
circumstances. Rule 19 of the Rules of Court is a rule of procedure whose object
is to make the powers of the court fully and completely available for justice. Its
purpose is not to hinder or delay but to facilitate and promote the administration
of justice. Thus, interventions have been allowed even beyond the prescribed
period in the Rule in the higher interest of justice. Interventions have been granted
to afford indispensable parties, who have not been impleaded, the right to be
heard even after a decision has been rendered by the trial court, when the petition
for review of the judgment was already submitted for decision before the
Supreme Court, and even where the assailed order has already become final and
executory. In Lim v. Pacquing (310 Phil. 722 (1995)], the motion for intervention
filed by the Republic of the Philippines was allowed by this Court to avoid grave
injustice and injury and to settle once and for all the substantive issues raised by
the parties.
Same; Same; Same; A judgment creditor has a direct and material interest in the
approval or disapproval of a compromise agreement involving its judgment
debtor—its interest is actual and material, direct and immediate characterized by
either gain or loss from the judgment that the Court may render.—STRADEC’s
interest is dependent on the outcome of Civil Case No. 05-882. Unless
STRADEC can show that RTC Branch 146 had already decided in its favor, its
legal interest is simply contingent and expectant. However, Asiavest has a direct
and material interest in the approval or disapproval of the Compromise
Agreement. Asiavest is a judgment creditor of PNCC in G.R. No. 110263 and a
court has already issued a writ of execution in its favor. Asiavest’s interest is
actual and material, direct and immediate characterized by either gain or loss
from the judgment that this Court may render. Considering that the Compromise
Agreement involves the disposition of all or substantially all of the assets of
PNCC, Asiavest, as PNCC’s judgment creditor, will be greatly prejudiced if the
Compromise Agreement is eventually upheld.
Same; Same; Same; Procedural Rules and Technicalities; The Supreme Court
should exercise its prerogative to set aside technicalities in the Rules, because
after all, the power of the Court to suspend its own rules whenever the interest of
justice requires is well recognized.—In the interest of substantial justice and for
compelling reasons, such as the nature and importance of the issues raised in this
case, this Court must take cognizance of Sison’s action. This Court should
exercise its prerogative to set aside technicalities in the Rules, because after all,
the power of this Court to suspend its own rules whenever the interest of justice
requires is well recognized. In Solicitor General v. The Metropolitan Manila
Authority, 204 SCRA 837 (1991) this Court held: Unquestionably, the Court has
the power to suspend procedural rules in the exercise of its inherent power, as
expressly recognized in the Constitution, to promulgate rules concerning
‘pleading, practice and procedure in all courts.’ In proper cases, procedural rules
may be relaxed or suspended in the interest of substantial justice, which otherwise
may be miscarried because of a rigid and formalistic adherence to such rules. x x
Prescription; Settled is the rule that actions prescribe by the mere lapse of time
fixed by law.—Settled is the rule that actions prescribe by the mere lapse of time
fixed by law. Under Article 1144 of the Civil Code, an action upon a written
contract, such as a loan contract, must be brought within ten years from the time
the right of action accrues. The prescription of such an action is interrupted when
the action is filed before the court, when there is a written extrajudicial demand
by the creditor, or when there is any written acknowledgment of the debt by the
debtor.
Same; Same; Same; The provision of the Revised Administrative Code on the
power to settle claims or liabilities was precisely enacted to prevent government
agencies from admitting liabilities against the government, then compromising
such “settled” liabilities—the present case is exactly what the law seeks to
prevent, a compromise agreement on a creditor’s claim settled through admission
by a government agency without the approval of Congress for amounts exceeding
100,000.00.—The provision of the Revised Administrative Code on the power to
settle claims or liabilities was precisely enacted to prevent government agencies
from admitting liabilities against the government, then compromising such
“settled” liabilities. The present case is exactly what the law seeks to prevent, a
compromise agreement on a creditor’s claim settled through admission by a
government agency without the approval of Congress for amounts exceeding
P100,000.00. What makes the application of the law even more necessary is that
the PNCC Board’s twin moves are manifestly and grossly disadvantageous to the
Government. First, the PNCC admitted solidary liability for a staggering P10.743
billion private debt incurred by a private corporation which PNCC does not even
control. Second, the PNCC Board agreed to pay Radstock P6.185 billion as a
compromise settlement ahead of all other creditors, including the Government
which is the biggest creditor.
Same; Same; Same; Words and Phrases; The phrase “government-owned or
controlled corporations” refers to both those created by special charter as well as
those incorporated under the Corporate Code.
Same; Same; Same; Same; Same; Since Radstock is disqualified to own lands in
the Philippines, it is also disqualified to own the rights to ownership of lands in
the Philippines’
Sales; Dacion en Pago; A dacion en pago is in essence a form of sale, which
basically involves a disposition of a property. Dacion en pago, according to
Manresa, is the transmission of the ownership of a thing by the debtor to the
creditor as an accepted equivalent of the performance of obligation. dacion en
pago is an objective novation of the obligation where the thing offered as an
accepted equivalent of the performance of an obligation is considered as the
object of the contract of sale, while the debt is considered as the purchase price.
Same; There is a presumption that there is fraud of creditors when property is
alienated by the debtor after judgment has been rendered against him.—The law,
specifically Article 1387 of the Civil Code, presumes that there is fraud of
creditors when property is alienated by the debtor after judgment has been
rendered against him, thus: Alienations by onerous title are also presumed
fraudulent when made by persons against whom some judgment has been
rendered in any instance or some writ of attachment has been issued. The decision
or attachment need not refer to the property alienated, and need not have been
obtained by the party seeking rescission. As stated earlier, Asiavest is a judgment
creditor of PNCC in G.R. No. 110263 and a court has already issued a writ of
execution in its favor. Thus, when PNCC entered into the Compromise
Agreement conveying several prime lots in favor of Radstock, by way of dacion
en pago, there is a legal presumption that such conveyance is fraudulent under
Article 1387 of the Civil Code. This presumption is strengthened by the fact that
the conveyance has virtually left PNCC’s other creditors, including the biggest
creditor—the National Government—with no other asset to garnish or levy.
BERSAMIN, J., Dissent:
Actions; Intervention; The purpose of intervention—never an independent
action, but ancillary and supplemental to the existing litigation—is not to obstruct
or to unnecessarily delay the placid operation of the machinery of trial, but merely
to afford one not an original party, yet having a certain right or interest in the
pending case, the opportunity to appear and be joined so he can assert or protect
such right or interest.—The purpose of intervention—never an independent
action, but ancillary and supplemental to the existing litigation—is not to obstruct
or to unnecessarily delay the placid operation of the machinery of trial, but merely
to afford one not an original party, yet having a certain right or interest in the
pending case, the opportunity to appear and be joined so he can assert or protect
such right or interest. Accordingly, as a general guide for determining whether a
party may be allowed to intervene or not, the trial court, in the exercise of its
sound discretion, shall consider whether or not the intervention will unduly delay
or prejudice the adjudication of the rights of the original parties, and whether or
not the intervenor’s rights may be fully protected in a separate proceeding.
Same; Same; The alleged possibility that STRADEC might be left with worthless
shares was no reason to allow its intervention in order only to assail the
compromise agreement, for such intervention would not enable Philippine
National Construction Corporation (PNCC) to avoid its liability to Radstock, or
to save PNCC from being liable with its own assets for its obligations to
Radstock, should the courts ultimately find that the obligations were justly due
and demandable.—STRADEC’s apprehensions would not be assuaged through
its intervention in the action between Radstock and PNCC or through the
nullification of the compromise agreement. STRADEC was a stranger in relation
to the transaction by which PNCC had incurred the obligations subject of the
compromise agreement. Indeed, it would be irregular to subordinate to
STRADEC’s unsettled claim the right of Radstock to collect as PNCC’s creditor.
On the other hand, STRADEC could still hold PNCC’s remaining assets liable
should it prevail in Civil Case No. 05-882. Based on COA’s earlier cited
compliance, PNCC had remaining assets by which it could start anew and pursue
its plans to revitalize its operation.
Judgments; Annulment of Judgments; Rule 47 of the 1997 Rules of Civil
Procedure applies only to petitions for the nullification of judgments rendered by
regional trial courts filed with the Court of Appeals—it does not pertain to the
nullification of decisions of the Court of Appeals.—The jurisdiction to annul a
judgment rendered by the Regional Trial Court is expressly granted to the CA by
Section 9 (2) of Batas Pambansa Blg. 129, otherwise known as the Judiciary
Reorganization Act. The procedure for the purpose is governed by Rule 47, 1997
Rules of Civil Procedure, whose Section 1 provides: Section 1. Coverage.—This
Rule shall govern the annulment by the Court of Appeals of judgments or final
orders and resolutions in civil actions of Regional Trial Courts for which the
ordinary remedies of new trial, appeal, petition for relief or other appropriate
remedies are no longer available through no fault of the petitioner. Explaining
the coverage of the procedure under Rule 47 in Grande v. University of the
Philippines, 502 SCRA 67 (2006), the Court definitely ruled out the application
of Rule 47 to the nullification of a decision of the CA, viz.: The annulment of
judgments, as a recourse, is equitable in character, allowed only in exceptional
cases, as where there is no available or other adequate remedy. It is generally
governed by Rule 47 of the 1997 Rules of Civil Procedure. Section 1 thereof
expressly states that the Rule “shall govern the annulment by the Court of
Appeals of judgments of final orders and resolutions in civil action of Regional
Trial Courts for which the ordinary remedies of new trial, appeal, petition for
relief or other appropriate remedies are no longer available through no fault of
the petitioner.” Clearly, Rule 47 applies only to petitions for the nullification of
judgments rendered by regional trial courts filed with the Court of Appeals. It
does not pertain to the nullification of decisions of the Court of Appeals.
Actions; Pleadings and Practice; Admissions; The rule on admissions does not
apply to a wrong interpretation and mistaken application of the laws, and the
Court is not to be bound by a mistaken interpretation of the law made by a
counsel, even if said interpretation is adverse to the client.—The majority
pointedly assert that Radstock’s counsel already admitted during the oral
argument that all of PNCC’s assets and properties had reverted to the National
Government. The assertion of the majority is too sweeping. It ignores that the so-
called admission of Radstock’s counsel was not, properly speaking, a judicial
admission that bound Radstock on the matter of reversion. To begin with, the
statements in question made by Radstock’s counsel did not relate to facts, but to
conclusions of law. Indeed, a judicial admission is an admission made in the
course of the proceeding in the same case, verbal or written, by a party accepting
for the purposes of the suit the truth of some alleged fact, which said party cannot
thereafter disprove. Clearly, the rule on admissions does not apply to a wrong
interpretation and mistaken application of the laws, and the Court is not to be
bound by a mistaken interpretation of the law made by a counsel, even if said
interpretation is adverse to the client.
Actions; Pleadings and Practice; It hardly requires clarification that an opinion
on a matter of law given in the course of the proceedings is not binding on the
party on whose behalf it is made, because the question of law is best left to the
determination of the court.—In this connection, the claim of the majority that
Radstock’s counsel admitted during the oral arguments that an appropriation law
was needed to authorize the payment by PNCC out of the toll fees is unwarranted.
The supposed admission was apparently counsel’s response to the query of
whether the collection of toll fees went to the general fund of the National
Government. As such, the response was an expression of counsel’s interpretation
of the law, which, albeit sounding like an admission, has no legal significance for
purposes of this resolution. It hardly requires clarification that an opinion on a
matter of law given in the course of the proceedings is not binding on the party
on whose behalf it is made, because the question of law is best left to the
determination of the court.
Same; Evidence; Judicial Notice; Congressional Deliberations; Words and
Phrases; The speeches of legislators delivered on the floor and the testimonies of
resource persons given in Congressional committee hearings, like those quoted
in the majority opinion, have no probative value in judicial adjudication, for they
are not recognized as evidence under the Rules of Court; The term official acts,
in its general sense, may encompass all activities of the Congress, like the laws
enacted and resolutions adopted, but the statements of the legislators and
testimonies cannot be regarded, by any stretch of legal understanding, as the
“official act of the legislative department”; Although the Court can take
cognizance of the proceedings of the Senate, as acts of a department of the
National Government, the testimonies or statements of the persons during the
hearings or sessions may not be used to prove disputed facts in the courts of
law.—The majority rely heavily on the transcripts of the Senate Committee
hearings to buttress the imputation of bad faith behind the passage of the board
resolution that recognized PNCC’s debts to Marubeni. They copiously quote the
privilege speech of Senator Franklin Drilon delivered during the plenary session
of December 21, 2006; and the transcripts of the Senate Committee hearings held
on December 14, 2006. To me, the reliance on the privilege speech and the
transcripts of the Senate Committee hearings is unwarranted and misplaced. The
speeches of legislators delivered on the floor and the testimonies of resource
persons given in Congressional committee hearings, like those quoted in the
majority opinion, have no probative value in judicial adjudication, for they are
not recognized as evidence under the Rules of Court. Even the rule on judicial
notice embodied in Section 1, Rule 129, of the Rules of Court does not accord
probative value to such speeches and testimonies, because the rule extends only
to the official acts of the Legislative Department. The term official acts, in its
general sense, may encompass all activities of the Congress, like the laws enacted
and resolutions adopted, but the statements of the legislators and testimonies
cannot be regarded, by any stretch of legal understanding, as the “official act of
the legislative department.” At best, the courts can only take judicial notice of the
fact that such statements or speeches were made by such persons, or that such
hearings were conducted. Although this Court can take cognizance of the
proceedings of the Senate, as acts of a department of the National Government,
the testimonies or statements of the persons during the hearings or sessions may
not be used to prove disputed facts in the courts of law. They cannot substitute
actual testimony as basis for making findings of fact necessary for the
determination of a controversy by the courts. In other words, they are
incompetent for purposes of judicial proceedings.
Same; Intervention; The interest that entitles a person to intervene in a suit
already commenced between other persons must be in the matter in litigation and
of such character that the intervenor will either gain or lose by direct legal
operation and effect of the judgment.—To start with, Asiavest has no direct and
material interest in the approval (or disapproval) of the compromise agreement
between PNCC and Radstock. Secondly, Asiavest’s request to intervene was
made too late in the proceedings. Under Section 2, Rule 19, 1997 Rules of Civil
Procedure, an intervention, to be permitted, must be sought prior to the rendition
of the judgment by the trial court. Thirdly, the avowed interest of Asiavest in
PNCC’s assets emanated from its being a creditor of PNCC by final judgment,
and was not related to the personal obligations of PNCC in favor of Marubeni
(that is, the guarantees for the loans) that were the subject of the compromise
agreement. Such interest did not entitle Asiavest to attack the compromise
agreement between PNCC and Radstock. The interest that entitles a person to
intervene in a suit already commenced between other persons must be in the
matter in litigation and of such character that the intervenor will either gain or
lose by direct legal operation and effect of the judgment. The conditions for a
proper intervention in relation to Asiavest simply did not exist. Moreover,
sustaining Asiavest’s posture may mean allowing other creditors to intervene in
an action involving their debtor brought by another creditor against such debtor
upon the broad pretext that they were thereby prejudiced. The absurdity of
Asiavest’s posture, being plain, can never be permitted under the rules on
intervention.
Evidence; Hearsay Evidence Rule; Mere newspaper reports are incom-petent
and inadmissible hearsay.—Lastly, Asiavest’s argument that the compromise
agreement might be in fraud of it as a judgment creditor of PNCC, in support of
which newspaper reports are cited, is unpersuasive. The allegation of fraud
remains unsupported by admissible and credible evidence presented by Asiavest,
considering that mere newspaper reports are incompetent and inadmissible
hearsay. Strategic Alliance Development Corporation vs. Radstock Securities
Limited, 607 SCRA 413, G.R. No. 178158 December 4, 2009
Prologue
This case is an anatomy of a ₱6.185 billion1 pillage of the public coffers that
ranks among one of the most brazen and hideous in the history of this country.
This case answers the questions why our Government perennially runs out of
funds to provide basic services to our people, why the great masses of the Filipino
people wallow in poverty, and why a very select few amass unimaginable wealth
at the expense of the Filipino people.
On 1 May 2007, the 30-year old franchise of Philippine National Construction
Corporation (PNCC) under Presidential Decree No. 1113 (PD 1113), as amended
by Presidential Decree No. 1894 (PD 1894), expired. During the 13th Congress,
PNCC sought to extend its franchise. PNCC won approval from the House of
Representatives, which passed House Bill No. 57492 renewing PNCC’s franchise
for another 25 years. However, PNCC failed to secure approval from the Senate,
dooming the extension of PNCC’s franchise. Led by Senator Franklin M. Drilon,
the Senate opposed PNCC’s plea for extension of its franchise.3 Senator Drilon’s
privilege speech4 explains why the Senate chose not to renew PNCC’s franchise:
I repeat, Mr. President. PNCC has agreed in a compromise agreement dated 17
August 2006 to transfer to Radstock Securities Limited ₱17,676,063,922, no
small money, Mr. President, my dear colleagues, ₱17.6 billion.
What does it consist of? It consists of the following: 19 pieces of real estate
properties with an appraised value of ₱5,993,689,000. Do we know what is the
bulk of this? An almost 13-hectare property right here in the Financial Center. As
we leave the Senate, as we go out of this Hall, as we drive thru past the GSIS, we
will see on the right a vacant lot, that is PNCC property. As we turn right on
Diosdado Macapagal, we see on our right new buildings, these are all PNCC
properties. That is 12.9 hectares of valuable asset right in this Financial Center
that is worth ₱5,993,689.000.
What else, Mr. President? The 20% of the outstanding capital stock of PNCC
with a par value of ₱2,300,000,000-- I repeat, 20% of the outstanding capital
stock of PNCC worth ₱2,300 billion-- was assigned to Radstock.
In addition, Mr. President and my dear colleagues, please hold on to your seats
because part of the agreement is 50% of PNCC’s 6% share in the gross toll
revenue of the Manila North Tollways Corporation for 27 years, from 2008 to
2035, is being assigned to Radstock. How much is this worth? It is worth
₱9,382,374,922. I repeat, ₱9,382,374,922.
xxxx
Mr. President, ₱17,676,000,000, however, was made to appear in the agreement
to be only worth ₱6,196,156,488. How was this achieved? How was an aggregate
amount of ₱17,676,000,000 made to appear to be only ₱6,196,156,488? First, the
19 pieces of real estate worth ₱5,993,689,000 were only assigned a value of
₱4,195,000,000 or only 70% of their appraised value.
Second, the PNCC shares of stock with a par value of ₱2.3 billion were marked
to market and therefore were valued only at ₱713 million.
Third, the share of the toll revenue assigned was given a net present value of only
₱1,287,000,000 because of a 15% discounted rate that was applied.
In other words, Mr. President, the toll collection of ₱9,382,374,922 for 27 years
was given a net present value of only ₱1,287,000,000 so that it is made to appear
that the compromise agreement is only worth ₱6,196,000,000.
Mr. President, my dear colleagues, this agreement will substantially wipe out all
the assets of PNCC. It will be left with nothing else except, probably, the
collection for the next 25 years or so from the North Luzon Expressway. This
agreement brought PNCC to the cleaners and literally cleaned the PNCC of all
its assets. They brought PNCC to the cleaners and cleaned it to the tune of
₱17,676,000,000.
xxxx
Mr. President, are we not entitled, as members of the Committee, to know who
is Radstock Securities Limited?
Radstock Securities Limited was allegedly incorporated under the laws of the
British Virgin Islands. It has no known board of directors, except for its recently
appointed attorney-in-fact, Mr. Carlos Dominguez.
Mr. President, are the members of the Committee not entitled to know why 20
years after the account to Marubeni Corporation, which gave rise to the
compromise agreement 20 years after the obligation was allegedly incurred,
PNCC suddenly recognized this obligation in its books when in fact this
obligation was not found in its books for 20 years?
In other words, Mr. President, for 20 years, the financial statements of PNCC did
not show any obligation to Marubeni, much less, to Radstock. Why suddenly on
October 20, 2000, ₱10 billion in obligation was recognized? Why was it
recognized?
During the hearing on December 18, Mr. President, we asked this question to the
Asset Privatization Trust (APT) trustee, Atty. Raymundo Francisco, and he was
asked: "What is the basis of your recommendation to recognize this?" He said: "I
based my recommendation on a legal opinion of Feria and Feria." I asked him:
"Who knew of this opinion?" He said: "Only me and the chairman of PNCC,
Atty. Renato Valdecantos." I asked him: "Did you share this opinion with the
members of the board who recognized the obligation of ₱10 billion?" He said:
"No." "Can you produce this opinion now?" He said: "I have no copy."
Mysteriously, Mr. President, an obligation of ₱10 billion based on a legal opinion
which, even Mr. Arthur Aguilar, the chairman of PNCC, is not aware of, none of
the members of the PNCC board on October 20, 2000 who recognized this
obligation had seen this opinion. It is mysterious.
Mr. President, are the members of our Committee not entitled to know why
Radstock Securities Limited is given preference over all other creditors
notwithstanding the fact that this is an unsecured obligation? There is no
mortgage to secure this obligation.
More importantly, Mr. President, equally recognized is the obligation of PNCC
to the Philippine government to the tune of ₱36 billion. PNCC owes the
Philippine government ₱36 billion recognized in its books, apart from ₱3 billion
in taxes. Why in the face of all of these is Radstock given preference? Why is it
that Radstock is given preference to claim ₱17.676 billion of the assets of PNCC
and give it superior status over the claim of the Philippine government, of the
Filipino people to the extent of ₱36 billion and taxes in the amount of P3 billion?
Why, Mr. President? Why is Radstock given preference not only over the
Philippine government claims of ₱39 billion but also over other creditors
including a certain best merchant banker in Asia, which has already a final and
executory judgment against PNCC for about ₱300 million? Why, Mr. President?
Are we not entitled to know why the compromise agreement assigned ₱17.676
billion to Radstock? Why was it executed? 5 (Emphasis supplied)
Aside from Senator Drilon, Senator Sergio S. Osmeña III also saw irregularities
in the transactions involving the Marubeni loans, thus:
SEN. OSMEÑA. Ah okay. Good.
Now, I'd like to point out to the Committee that – it seems that this was a
politically driven deal like IMPSA. Because the acceptance of the 10 billion or
13 billion debt came in October 2000 and the Radstock assignment was January
10, 2001. Now, why would Marubeni sell for $2 million three months after there
was a recognition that it was owed ₱10 billion. Can you explain that, Mr.
Dominguez?
MR. DOMINGUEZ. Your Honor, I am not aware of the decision making process
of Marubeni. But my understanding was, the Japanese culture is not a litigious
one and they didn't want to get into a, you know, a court situation here in the
Philippines having a lot of other interest, et cetera.
SEN. OSMEÑA. Well, but that is beside the point, Mr. Dominguez. All I am
asking is does it stand to reason that after you get an acceptance by a debtor that
he owes you 10 billion, you sell your note for 100 million.
Now, if that had happened a year before, maybe I would have understood why he
sold for such a low amount. But right after, it seems that this was part of an
orchestrated deal wherein with certain powerful interest would be able to say,
"Yes, we will push through. We'll fix the courts. We'll fix the board. We'll fix the
APT. And we will be able to do it, just give us 55 percent of whatever is
recovered," am I correct?
MR. DOMINGUEZ. As I said, Your Honor, I am not familiar with the decision
making process of Marubeni. But my understanding was, as I said, they didn't
want to get into a …
SEN. OSMEÑA. All right.
MR. DOMINGUEZ. ...litigious situation.6
xxxx
SEN. OSMEÑA. All of these financial things can be arranged. They can hire a
local bank, Filipino, to be trustee for the real estate. So ...
SEN. DRILON. Well, then, that’s a dummy relationship.
SEN. OSMEÑA. In any case, to me the main point here is that a third party,
Radstock, whoever owns it, bought Marubeni’s right for $2 million or ₱100
million. Then, they are able to go through all these legal machinations and get
awarded with the consent of PNCC of 6 billion. That’s a 100 million to 6 billion.
Now, Mr. Aguilar, you have been in the business for such a long time. I mean,
this hedge funds whether it’s Radstock or New Bridge or Texas Pacific Group or
Carlyle or Avenue Capital, they look at their returns. So if Avenue Capital buys
something for $2 million and you give him $4 million in one year, it’s a 100
percent return. They’ll walk away and dance to their stockholders. So here in this
particular case, if you know that Radstock only bought it for $2 million, I would
have gotten board approval and say, "Okay, let’s settle this for $4 million." And
Radstock would have jumped up and down. So what looks to me is that this was
already a scheme. Marubeni wrote it off already. Marubeni wrote everything off.
They just got a $2 million and they probably have no more residual rights or
maybe there’s a clause there, a secret clause, that says, "I want 20 percent of
whatever you’re able to eventually collect." So $2 million. But whatever it is,
Marubeni practically wrote it off. Radstock’s liability now or exposure is only $2
million plus all the lawyer fees, under-the-table, etcetera. All right. Okay. So it’s
pretty obvious to me that if anybody were using his brain, I would have gone up
to Radstock and say, "Here’s $4 million. Here’s P200 million. Okay." They
would have walked away. But evidently, the "ninongs" of Radstock – See, I don’t
care who owns Radstock. I want to know who is the ninong here who stands to
make a lot of money by being able to get to courts, the government agencies, SEN. OSMEÑA. One-three? So poor PNCC and CDCP got taken to the cleaners
OGCC, or whoever else has been involved in this, to agree to 6 billion or here. They sign for a 100 percent and they only own 13 percent.
whatever it was. That’s a lot of money. And believe me, Radstock will probably
get one or two billion and four billion will go into somebody else’s pocket. Or x x x x8 (Emphasis supplied)
Radstock will turn around, sell that claim for ₱4 billion and let the new guy just I.
collect the payments over the years. The Case
x x x x7 Before this Court are the consolidated petitions for review9 filed by Strategic
SEN. OSMEÑA. x x x I just wanted to know is CDCP Mining a 100 percent Alliance Development Corporation (STRADEC) and Luis Sison (Sison), with a
subsidiary of PNCC? motion for intervention filed by Asiavest Merchant Bankers Berhad (Asiavest),
challenging the validity of the Compromise Agreement between PNCC and
MR. AGUILAR. Hindi ho. Ah, no. Radstock. The Court of Appeals approved the Compromise Agreement in its
Decision of 25 January 200710 in CA-G.R. CV No. 87971.
SEN. OSMEÑA. If they’re not a 100 percent, why would they sign jointly and
severally? I just want to plug the loopholes. II.
The Antecedents
MR. AGUILAR. I think it was – if I may just speculate. It was just common
ownership at that time. PNCC was incorporated in 1966 for a term of fifty years under the Corporation
Code with the name Construction Development Corporation of the Philippines
SEN. OSMEÑA. Al right. Now – Also, the ... (CDCP).11 PD 1113, issued on 31 March 1977, granted CDCP a 30-year franchise
MR. AGUILAR. Ah, 13 percent daw, Your Honor. to construct, operate and maintain toll facilities in the North and South Luzon
Tollways. PD 1894, issued on 22 December 1983, amended PD 1113 to include
SEN. OSMEÑA. Huh? in CDCP’s franchise the Metro Manila Expressway, which would "serve as an
additional artery in the transportation of trade and commerce in the Metro Manila
MR. AGUILAR. Thirteen percent ho.
area."
SEN. OSMEÑA. What’s 13 percent?
Sometime between 1978 and 1981, Basay Mining Corporation (Basay Mining),
MR. AGUILAR. We owned ... an affiliate of CDCP, obtained loans from Marubeni Corporation of Japan
(Marubeni) amounting to 5,460,000,000 yen and US$5 million. A CDCP official
xxxx issued letters of guarantee for the loans, committing CDCP to pay solidarily for
the full amount of the 5,460,000,000 yen loan and to the extent of ₱20 million
SEN. OSMEÑA. x x x CDCP Mining, how many percent of the equity of CDCP
for the US$5 million loan. However, there was no CDCP Board Resolution
Mining was owned by PNCC, formerly CDCP?
authorizing the issuance of the letters of guarantee. Later, Basay Mining changed
MS. PASETES. Thirteen percent. its name to CDCP Mining Corporation (CDCP Mining). CDCP Mining secured
the Marubeni loans when CDCP and CDCP Mining were still privately owned
SEN. OSMEÑA. Thirteen. And as a 13 percent owner, they agreed to sign jointly and managed.
and severally?
Subsequently in 1983, CDCP changed its corporate name to PNCC to reflect the
MS. PASETES. Yes. extent of the Government's equity investment in the company, which arose when
government financial institutions converted their loans to PNCC into equity
following PNCC’s inability to pay the loans.12 Various government financial
institutions held a total of seventy-seven point forty-eight percent (77.48%) of
PNCC’s voting equity, most of which were later transferred to the Asset
Privatization Trust (APT) under Administrative Orders No. 14 and 64, series of
1987 and 1988, respectively.13 Also, the Presidential Commission on Good
Government holds some 13.82% of PNCC’s voting equity under a writ of
sequestration and through the voluntary surrender of certain PNCC shares. In
fine, the Government owns 90.3% of the equity of PNCC and only 9.70% of
PNCC’s voting equity is under private ownership.14
Meanwhile, the Marubeni loans to CDCP Mining remained unpaid. On 20
October 2000, during the short-lived Estrada Administration, the PNCC Board
of Directors15 (PNCC Board) passed Board Resolution No. BD-092-2000
admitting PNCC’s liability to Marubeni for ₱10,743,103,388 as of 30 September
1999. PNCC Board Resolution No. BD-092-2000 reads as follows:
RESOLUTION NO. BD-092-2000
RESOLVED, That the Board recognizes, acknowledges and confirms PNCC’s
obligations as of September 30, 1999 with the following entities, exclusive of the
interests and other charges that may subsequently accrue and still become due
therein, to wit:
a). the Government of the Republic of the Philippines in the amount of
₱36,023,784,751.00; and
b). Marubeni Corporation in the amount of ₱10,743,103,388.00. (Emphasis
supplied)
This was the first PNCC Board Resolution admitting PNCC’s liability for the
Marubeni loans. Previously, for two decades the PNCC Board consistently
refused to admit any liability for the Marubeni loans.
Less than two months later, or on 22 November 2000, the PNCC Board passed
Board Resolution No. BD-099-2000 amending Board Resolution No. BD-092-
2000. PNCC Board Resolution No. BD-099-2000 reads as follows:
RESOLUTION NO. BD-099-2000
RESOLVED, That the Board hereby amends its Resolution No. BD-092-2000
dated October 20, 2000 so as to read as follows:
RESOLVED, That the Board recognizes, acknowledges and confirms its
obligations as of September 30, 1999 with the following entities, exclusive of the
interests and other charges that may subsequently accrue and still due thereon,
subject to the final determination by the Commission on Audit (COA) of the
amount of obligation involved, and subject further to the declaration of the
legality of said obligations by the Office of the Government Corporate Counsel
(OGCC), to wit:
a). the Government of the Republic of the Philippines in the amount of
₱36,023,784,751.00; and
b). Marubeni Corporation in the amount of ₱10,743,103,388.00. (Emphasis
supplied)
In January 2001, barely three months after the PNCC Board first admitted
liability for the Marubeni loans, Marubeni assigned its entire credit to Radstock
for US$2 million or less than ₱100 million. In short, Radstock paid Marubeni less
than 10% of the ₱10.743 billion admitted amount. Radstock immediately sent a
notice and demand letter to PNCC.
On 15 January 2001, Radstock filed an action for collection and damages against
PNCC before the Regional Trial Court of Mandaluyong City, Branch 213 (trial
court). In its order of 23 January 2001, the trial court issued a writ of preliminary
attachment against PNCC. The trial court ordered PNCC’s bank accounts
garnished and several of its real properties attached. On 14 February 2001, PNCC
moved to set aside the 23 January 2001 Order and to discharge the writ of
attachment. PNCC also filed a motion to dismiss the case. The trial court denied
both motions. PNCC filed motions for reconsideration, which the trial court also
denied. PNCC filed a petition for certiorari before the Court of Appeals, docketed
as CA-G.R. SP No. 66654, assailing the denial of the motion to dismiss. On 30
August 2002, the Court of Appeals denied PNCC’s petition. PNCC filed a motion
for reconsideration, which the Court of Appeals also denied in its 22 January
2003 Resolution. PNCC filed a petition for review before this Court, docketed as
G.R. No. 156887.
Meanwhile, on 19 June 2001, at the start of the Arroyo Administration, the PNCC
Board, under a new President and Chairman, revoked Board Resolution No. BD-
099-2000.
The trial court continued to hear the main case. On 10 December 2002, the trial
court ruled in favor of Radstock, as follows:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the
plaintiff and the defendant is directed to pay the total amount of Thirteen Billion
One Hundred Fifty One Million Nine Hundred Fifty Six thousand Five Hundred
Twenty Eight Pesos (₱13,151,956,528.00) with interest from October 15, 2001
plus Ten Million Pesos (₱10,000,000.00) as attorney’s fees.
SO ORDERED.16
PNCC appealed the trial court’s decision to the Court of Appeals, docketed as
CA-G.R. CV No. 87971.
On 19 March 2003, this Court issued a temporary restraining order in G.R. No.
156887 forbidding the trial court from implementing the writ of preliminary
attachment and ordering the suspension of the proceedings before the trial court
and the Court of Appeals. In its 3 October 2005 Decision, this Court ruled as
follows:
WHEREFORE, the petition is partly GRANTED and insofar as the Motion to Set
Aside the Order and/or Discharge the Writ of Attachment is concerned, the
Decision of the Court of Appeals on August 30, 2002 and its Resolution of
January 22, 2003 in CA-G.R. SP No. 66654 are REVERSED and SET ASIDE.
The attachments over the properties by the writ of preliminary attachment are
hereby ordered LIFTED effective upon the finality of this Decision. The Decision
and Resolution of the Court of Appeals are AFFIRMED in all other respects. The
Temporary Restraining Order is DISSOLVED immediately and the Court of
Appeals is directed to PROCEED forthwith with the appeal filed by PNCC.
No costs.
SO ORDERED.17
On 17 August 2006, PNCC and Radstock entered into the Compromise
Agreement where they agreed to reduce PNCC’s liability to Radstock,
supposedly from ₱17,040,843,968, to ₱6,185,000,000. PNCC and Radstock
submitted the Compromise Agreement to this Court for approval. In a Resolution
dated 4 December 2006 in G.R. No. 156887, this Court referred the Compromise
Agreement to the Commission on Audit (COA) for comment. The COA
recommended approval of the Compromise Agreement. In a Resolution dated 22
November 2006, this Court noted the Compromise Agreement and referred it to
the Court of Appeals in CA-G.R. CV No. 87971. In its 25 January 2007 Decision,
the Court of Appeals approved the Compromise Agreement.
STRADEC moved for reconsideration of the 25 January 2007 Decision.
STRADEC alleged that it has a claim against PNCC as a bidder of the National
Government’s shares, receivables, securities and interests in PNCC. The matter
is subject of a complaint filed by STRADEC against PNCC and the Privatization
and Management Office (PMO) for the issuance of a Notice of Award of Sale to
Dong-A Consortium of which STRADEC is a partner. The case, docketed as
Civil Case No. 05-882, is pending before the Regional Trial Court of Makati,
Branch 146 (RTC Branch 146).
The Court of Appeals treated STRADEC’s motion for reconsideration as a
motion for intervention and denied it in its 31 May 2007 Resolution. STRADEC
filed a petition for review before this Court, docketed as G.R. No. 178158.
Rodolfo Cuenca (Cuenca), a stockholder and former PNCC President and Board
Chairman, filed an intervention before the Court of Appeals. Cuenca alleged that
PNCC had no obligation to pay Radstock. The Court of Appeals also denied
Cuenca’s motion for intervention in its Resolution of 31 May 2007. Cuenca did
not appeal the denial of his motion.
On 2 July 2007, this Court issued an order directing PNCC and Radstock, their
officers, agents, representatives, and other persons under their control, to
maintain the status quo ante.
Meanwhile, on 20 February 2007, Sison, also a stockholder and former PNCC
President and Board Chairman, filed a Petition for Annulment of Judgment
Approving Compromise Agreement before the Court of Appeals. The case was
docketed as CA-G.R. SP No. 97982.
Asiavest, a judgment creditor of PNCC, filed an Urgent Motion for Leave to
Intervene and to File the Attached Opposition and Motion-in-Intervention before
the Court of Appeals in CA-G.R. SP No. 97982.
In a Resolution dated 12 June 2007, the Court of Appeals dismissed Sison’s
petition on the ground that it had no jurisdiction to annul a final and executory
judgment also rendered by the Court of Appeals. In the same resolution, the Court
of Appeals also denied Asiavest’s urgent motion.
Asiavest filed its Urgent Motion for Leave to Intervene and to File the Attached
Opposition and Motion-in-Intervention in G.R. No. 178158.18
Sison filed a motion for reconsideration. In its 5 November 2007 Resolution, the
Court of Appeals denied Sison’s motion.
On 26 November 2007, Sison filed a petition for review before this Court,
docketed as G.R. No. 180428.
In a Resolution dated 18 February 2008, this Court consolidated G.R. Nos.
178158 and 180428.
On 13 January 2009, the Court held oral arguments on the following issues:
1. Does the Compromise Agreement violate public policy?
2. Does the subject matter involve an assumption by the government of a private
entity’s obligation in violation of the law and/or the Constitution? Is the PNCC
Board Resolution of 20 October 2000 defective or illegal?
3. Is the Compromise Agreement viable in the light of the non-renewal of
PNCC’s franchise by Congress and its inclusion of all or substantially all of
PNCC’s assets?
4. Is the Decision of the Court of Appeals annullable even if final and executory
on grounds of fraud and violation of public policy and the Constitution?
III.
Propriety of Actions
The Court of Appeals denied STRADEC’s motion for intervention on the ground
that the motion was filed only after the Court of Appeals and the trial court had
promulgated their respective decisions.
Section 2, Rule 19 of the 1997 Rules of Civil Procedure provides:
SECTION 2. Time to intervene.– The motion to intervene may be filed at any
time before rendition of judgment by the trial court. A copy of the pleading-in-
intervention shall be attached to the motion and served on the original parties.
The rule is not absolute. The rule on intervention, like all other rules of procedure,
is intended to make the powers of the Court completely available for justice. 19 It
is aimed to facilitate a comprehensive adjudication of rival claims, overriding
technicalities on the timeliness of the filing of the claims.20 This Court has ruled:
[A]llowance or disallowance of a motion for intervention rests on the sound
discretion of the court after consideration of the appropriate circumstances. Rule
19 of the Rules of Court is a rule of procedure whose object is to make the powers
of the court fully and completely available for justice. Its purpose is not to hinder
or delay but to facilitate and promote the administration of justice. Thus,
interventions have been allowed even beyond the prescribed period in the Rule
in the higher interest of justice. Interventions have been granted to afford
indispensable parties, who have not been impleaded, the right to be heard even
after a decision has been rendered by the trial court, when the petition for review
of the judgment was already submitted for decision before the Supreme Court,
and even where the assailed order has already become final and executory. In
Lim v. Pacquing (310 Phil. 722 (1995)], the motion for intervention filed by the
Republic of the Philippines was allowed by this Court to avoid grave injustice
and injury and to settle once and for all the substantive issues raised by the
parties.21
In Collado v. Court of Appeals,22 this Court reiterated that exceptions to Section
2, Rule 12 could be made in the interest of substantial justice. Citing Mago v.
Court of Appeals,23 the Court stated:
It is quite clear and patent that the motions for intervention filed by the movants
at this stage of the proceedings where trial had already been concluded x x x and
on appeal x x x the same affirmed by the Court of Appeals and the instant petition
for certiorari to review said judgments is already submitted for decision by the
Supreme Court, are obviously and, manifestly late, beyond the period prescribed
under x x x Section 2, Rule 12 of the Rules of Court.
But Rule 12 of the Rules of Court, like all other Rules therein promulgated, is
simply a rule of procedure, the whole purpose and object of which is to make the
powers of the Court fully and completely available for justice. 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 adopted to obtain that thing. In other words, it is
a means to an end.
Concededly, STRADEC has no legal interest in the subject matter of the
Compromise Agreement. Section 1, Rule 19 of the 1997 Rules of Civil Procedure
states:
SECTION 1. Who may intervene. - A person who has a legal interest in the matter
in litigation, or in the success of either of the parties, or an interest against both,
or is so situated as to be adversely affected by a distribution or other disposition
of property in the custody of the court or of an officer thereof may, with leave of
court, be allowed to intervene in the action. The Court shall consider whether or
not the intervention will unduly delay or prejudice the adjudication of the rights
of the original parties, and whether or not the intervenor’s rights may be fully
protected in a separate proceeding.
STRADEC’s interest is dependent on the outcome of Civil Case No. 05-882.
Unless STRADEC can show that RTC Branch 146 had already decided in its
favor, its legal interest is simply contingent and expectant.
However, Asiavest has a direct and material interest in the approval or
disapproval of the Compromise Agreement. Asiavest is a judgment creditor of
PNCC in G.R. No. 110263 and a court has already issued a writ of execution in
its favor. Asiavest’s interest is actual and material, direct and immediate
characterized by either gain or loss from the judgment that this Court may
render.24 Considering that the Compromise Agreement involves the disposition
of all or substantially all of the assets of PNCC, Asiavest, as PNCC’s judgment
creditor, will be greatly prejudiced if the Compromise Agreement is eventually
upheld.
Sison has legal standing to challenge the Compromise Agreement. Although
there was no allegation that Sison filed the case as a derivative suit in the name
of PNCC, it could be fairly deduced that Sison was assailing the Compromise
Agreement as a stockholder of PNCC. In such a situation, a stockholder of PNCC
can sue on behalf of PNCC to annul the Compromise Agreement.
A derivative action is a suit by a stockholder to enforce a corporate cause of
action.25 Under the Corporation Code, where a corporation is an injured party, its
power to sue is lodged with its board of directors or trustees. 26 However, an
individual stockholder may file a derivative suit on behalf of the corporation to
protect or vindicate corporate rights whenever the officials of the corporation
refuse to sue, or are the ones to be sued, or hold control of the corporation. 27 In
such actions, the corporation is the real party-in-interest while the suing
stockholder, on behalf of the corporation, is only a nominal party. 28
In this case, the PNCC Board cannot conceivably be expected to attack the
validity of the Compromise Agreement since the PNCC Board itself approved
the Compromise Agreement. In fact, the PNCC Board steadfastly defends the
Compromise Agreement for allegedly being advantageous to PNCC.
Besides, the circumstances in this case are peculiar. Sison, as former PNCC
President and Chairman of the PNCC Board, was responsible for the approval of
the Board Resolution issued on 19 June 2001 revoking the previous Board
Resolution admitting PNCC’s liability for the Marubeni loans.29 Such revocation,
however, came after Radstock had filed an action for collection and damages
against PNCC on 15 January 2001. Then, when the trial court rendered its
decision on 10 December 2002 in favor of Radstock, Sison was no longer the
PNCC President and Chairman, although he remains a stockholder of PNCC.
When the case was on appeal before the Court of Appeals, there was no need for
Sison to avail of any remedy, until PNCC and Radstock entered into the
Compromise Agreement, which disposed of all or substantially all of PNCC’s
assets. Sison came to know of the Compromise Agreement only in December
2006. PNCC and Radstock submitted the Compromise Agreement to the Court
of Appeals for approval on 10 January 2007. The Court of Appeals approved the
Compromise Agreement on 25 January 2007. To require Sison at this stage to
exhaust all the remedies within the corporation will render such remedies useless
as the Compromise Agreement had already been approved by the Court of
Appeals. PNCC’s assets are in danger of being dissipated in favor of a private
foreign corporation. Thus, Sison had no recourse but to avail of an extraordinary
remedy to protect PNCC’s assets.
Besides, in the interest of substantial justice and for compelling reasons, such as
the nature and importance of the issues raised in this case,30 this Court must take
cognizance of Sison’s action. This Court should exercise its prerogative to set
aside technicalities in the Rules, because after all, the power of this Court to
suspend its own rules whenever the interest of justice requires is well
recognized.31 In Solicitor General v. The Metropolitan Manila Authority,32 this
Court held:
Unquestionably, the Court has the power to suspend procedural rules in the
exercise of its inherent power, as expressly recognized in the Constitution, to
promulgate rules concerning ‘pleading, practice and procedure in all courts.’ In
proper cases, procedural rules may be relaxed or suspended in the interest of
substantial justice, which otherwise may be miscarried because of a rigid and
formalistic adherence to such rules. x x x
We have made similar rulings in other cases, thus:
Be it remembered that rules of procedure are but mere tools designed to facilitate
the attainment of justice. Their strict and rigid application, which would result in
technicalities that tend to frustrate rather than promote substantial justice, must
always be avoided. x x x Time and again, this Court has suspended its own rules
and excepted a particular case from their operation whenever the higher interests
of justice so require.
IV.
The PNCC Board Acted in Bad Faith and with Gross Negligence
in Directing the Affairs of PNCC
In this jurisdiction, the members of the board of directors have a three-fold duty:
duty of obedience, duty of diligence, and duty of loyalty.33 Accordingly, the
members of the board of directors (1) shall direct the affairs of the corporation
only in accordance with the purposes for which it was organized;34 (2) shall not
willfully and knowingly vote for or assent to patently unlawful acts of the
corporation or act in bad faith or with gross negligence in directing the
affairs of the corporation;35 and (3) shall not acquire any personal or pecuniary
interest in conflict with their duty as such directors or trustees.36
In the present case, the PNCC Board blatantly violated its duty of diligence as it
miserably failed to act in good faith in handling the affairs of PNCC.
First. For almost two decades, the PNCC Board had consistently refused to admit
liability for the Marubeni loans because of the absence of a PNCC Board
resolution authorizing the issuance of the letters of guarantee.
There is no dispute that between 1978 and 1980, Marubeni Corporation extended
two loans to Basay Mining (later renamed CDCP Mining): (1) US$5 million to
finance the purchase of copper concentrates by Basay Mining; and (2) Y5.46
billion to finance the completion of the expansion project of Basay Mining
including working capital.
There is also no dispute that it was only on 20 October 2000 when the PNCC
Board approved a resolution expressly admitting PNCC’s liability for the
Marubeni loans. This was the first Board Resolution admitting liability for the
Marubeni loans, for PNCC never admitted liability for these debts in the past.
Even Radstock admitted that PNCC’s 1994 Financial Statements did not reflect
the Marubeni loans.37 Also, former PNCC Chairman Arthur Aguilar stated during
the Senate hearings that "the Marubeni claim was never in the balance sheet x x
x nor was it in a contingent account." 38 Miriam M. Pasetes, SVP Finance of
PNCC, and Atty. Herman R. Cimafranca of the Office of the Government
Corporate Counsel, confirmed this fact, thus:
SEN. DRILON. x x x And so, PNCC itself did not recognize this as an obligation
but the board suddenly recognized it as an obligation. It was on that basis that the
case was filed, is that correct? In fact, the case hinges on – they knew that this
claim has prescribed but because of that board resolution which recognized the
obligation they filed their complaint, is that correct?
MR. CIMAFRANCA. Apparently, it's like that, Senator, because the filing of the
case came after the acknowledgement.
SEN. DRILON. Yes. In fact, the filing of the case came three months after the
acknowledgement.
MR. CIMAFRANCA. Yes. And that made it difficult to handle on our part.
SEN. DRILON. That is correct. So, that it was an obligation which was not
recognized in the financial statements of PNCC but revived – in the financial
statements because it has prescribed but revived by the board effectively.
That's the theory, at least, of the plaintiff. Is that correct? Who can answer
that?
Ms. Pasetes, yes.
MS. PASETES. It is not an obligation of PNCC that is why it is not reflected in
the financial statements.39 (Emphasis supplied)
In short, after two decades of consistently refuting its liability for the Marubeni
loans, the PNCC Board suddenly and inexplicably reversed itself by admitting in
October 2000 liability for the Marubeni loans. Just three months after the PNCC
Board recognized the Marubeni loans, Radstock acquired Marubeni's receivable
and filed the present collection case.
Second. The PNCC Board admitted liability for the Marubeni loans despite
PNCC’s total liabilities far exceeding its assets. There is no dispute that the
Marubeni loans, once recognized, would wipe out the assets of PNCC, "virtually
emptying the coffers of the PNCC." 40 While PNCC insists that it remains
financially viable, the figures in the COA Audit Reports tell otherwise. 41 For
2006 and 2005, "the Corporation has incurred negative gross margin of
₱84.531 Million and ₱80.180 Million, respectively, and net losses that had
accumulated in a deficit of ₱14.823 Billion as of 31 December 2006."42 The
COA even opined that "unless [PNCC] Management addresses the issue on
net losses in its financial rehabilitation plan, x x x the Corporation may not
be able to continue its operations as a going concern."
Notably, during the oral arguments before this Court, the Government Corporate
Counsel admitted the PNCC’s huge negative net worth, thus:
JUSTICE CARPIO
x x x what is the net worth now of PNCC? Negative what? Negative 6 Billion at
least[?]
ATTY. AGRA
43
Yes, your Honor. (Emphasis supplied)
Clearly, the PNCC Board’s admission of liability for the Marubeni loans, given
PNCC’s huge negative net worth of at least ₱6 billion as admitted by PNCC’s
counsel, or ₱14.823 billion based on the 2006 COA Audit Report, would leave
PNCC an empty shell, without any assets to pay its biggest creditor, the National
Government with an admitted receivable of ₱36 billion from PNCC.
Third. In a debilitating self-inflicted injury, the PNCC Board revived what
appeared to have been a dead claim by abandoning one of PNCC’s strong
defenses, which is the prescription of the action to collect the Marubeni loans.
Settled is the rule that actions prescribe by the mere lapse of time fixed by
law.44 Under Article 1144 of the Civil Code, an action upon a written contract,
such as a loan contract, must be brought within ten years from the time the right
of action accrues. The prescription of such an action is interrupted when the
action is filed before the court, when there is a written extrajudicial demand by
the creditor, or when there is any written acknowledgment of the debt by the
debtor.45
In this case, Basay Mining obtained the Marubeni loans sometime between 1978
and 1981. While Radstock claims that numerous demand letters were sent to
PNCC, based on the records, the extrajudicial demands to pay the loans appear
to have been made only in 1984 and 1986. Meanwhile, the written
acknowledgment of the debt, in the form of Board Resolution No. BD-092-2000,
was issued only on 20 October 2000.
Thus, more than ten years would have already lapsed between Marubeni’s
extrajudicial demands in 1984 and 1986 and the acknowledgment by the PNCC
Board of the Marubeni loans in 2000. However, the PNCC Board suddenly
passed Board Resolution No. BD-092-2000 expressly admitting liability for the
Marubeni loans. In short, the PNCC Board admitted liability for the Marubeni
loans despite the fact that the same might no longer be judicially collectible.
Although the legal advantage was obviously on its side, the PNCC Board threw
in the towel even before the fight could begin. During the Senate hearings, the
matter of prescription was discussed, thus:
SEN. DRILON. ... the prescription period is 10 years and there were no payments
– the last demands were made, when? The last demands for payment?
MS. OGAN. It was made January 2001 prior to the filing of the case.
SEN. DRILON. Yes, all right. Before that, when was the last demand made? By
the time they filed the complaint more than 10 years already lapsed.
MS. OGAN. On record, Mr. Chairman, we have demands starting from - - a series
of demands which started from May 23, 1984, letter from Marubeni to PNCC,
demand payment. And we also have the letter of September 3, 1986, letter of
Marubeni to then PNCC Chair Mr. Jaime. We have the June 24, 1986 letter from
Marubeni to the PNCC Chairman. Also the March 4, 1988 letter...
SEN. DRILON. The March 4, 1988 letter is not a demand letter.
MS. OGAN. It is exactly addressed to the Asset Privatization Trust.
SEN. DRILON. It is not a demand letter? Okay.
MS. OGAN. And we have also...
SEN. DRILON. Anyway...
THE CHAIRMAN. Please answer when you are asked, Ms. Ogan. We want to
put it on the record whether it is "yes" or "no".
MS. OGAN. Yes, sir.
SEN. DRILON. So, even assuming that all of those were demand letters, the 10
years prescription set in and it should have prescribed in 1998, whatever is the
date, or before the case was filed in 2001.
MR. CIMAFRANCA. The 10-year period for – if the contract is written, it's 10
years and it should have prescribed in 10 years and we did raise that in our
answer, in our motion to dismiss.
SEN. DRILON. I know. You raised this in your motion to dismiss and you raised
this in your answer. Now, we are not saying that you were negligent in not raising
that. What we are just putting on the record that indeed there is basis to argue that
these claims have prescribed.
Now, the reason why there was a colorable basis on the complaint filed in 2001
was that somehow the board of PNCC recognized the obligation in a special
board meeting on October 20, 2000. Hindi ba ganoon 'yon?
MS. OGAN. Yes, that is correct.
SEN. DRILON. Why did the PNCC recognize this obligation in 2000 when it
was very clear that at that point more than 10 years have lapsed since the last
demand letter?
MR. AGUILAR. May I volunteer an answer?
SEN. DRILON. Please.
MR. AGUILAR. I looked into that, Mr. Chairman, Your Honor. It was as a result
of and I go to the folder letter "N." In our own demand research it was not period,
Your Honor, that Punongbayan in the big folder, sir, letter "N" it was the period
where PMO was selling PNCC and Punongbayan and Araullo Law Office came
out with an investment brochure that indicated liabilities both to national
government and to Marubeni/Radstock. So, PMO said, "For good order, can you
PNCC board confirm that by board resolution?" That's the tone of the letter.
SEN. DRILON. Confirm what? Confirm the liabilities that are contained in the
Punongbayan investment prospectus both to the national government and to
PNCC. That is the reason at least from the record, Your Honor, how the PNCC
board got to deliberate on the Marubeni.
THE CHAIRMAN. What paragraph? Second to the last paragraph?
MR. AGUILAR. Yes. Yes, Mr. Chairman. Ito po 'yong – that"s to our
recollection, in the records, that was the reason.
SEN. DRILON. Is that the only reason why ...
MR. AGUILAR. From just the records, Mr. Chairman, and then interviews with
people who are still around.
SEN. DRILON. You mean, you acknowledged a prescribed obligation because
of this paragraph?
MR. AGUILAR. I don’t know what legal advice we were following at that time,
Mr. Chairman.46 (Emphasis supplied)
Besides prescription, the Office of the Government Corporate Counsel (OGCC)
originally believed that PNCC had another formidable legal weapon against
Radstock, that is, the lack of authority of Alfredo Asuncion, then Executive Vice-
President of PNCC, to sign the letter of guarantee on behalf of CDCP. During the
Senate hearings, the following exchange reveals the OGCC’s original opinion:
THE CHAIRMAN. What was the opinion of the Office of the Government
Corporate Counsel?
MS. OGAN. The opinion of the Office of the Government Corporate Counsel is
that PNCC should exhaust all means to resist the case using all defenses available
to a guarantee and a surety that there is a valid ground for PNCC's refusal to
honor or make good the alleged guarantee obligation. It appearing that from the
documents submitted to the OGCC that there is no board authority in favor or
authorizing Mr. Asuncion, then EVP, to sign or execute the letter of guarantee in
behalf of CDCP and that said letter of guarantee is not legally binding upon or
enforceable against CDCP as principals, your Honors.47
xxxx
SEN. DRILON. Now that we have read this, what was the opinion of the
Government Corporate Counsel, Mr. Cimafranca?
MR. CIMAFRANCA. Yes, Senator, we did issue an opinion upon the request of
PNCC and our opinion was that there was no valid obligation, no valid guarantee.
And we incorporated that in our pleadings in court.48 (Emphasis supplied)
Clearly, PNCC had strong defenses against the collection suit filed by Radstock,
as originally opined by the OGCC. It is quite puzzling, therefore, that the PNCC
Board, which had solid grounds to refute the legitimacy of the Marubeni loans,
admitted its liability and entered into a Compromise Agreement that is manifestly
and grossly prejudicial to PNCC.
Fourth. The basis for the admission of liability for the Marubeni loans, which was
an opinion of the Feria Law Office, was not even shown to the PNCC Board.
Atty. Raymundo Francisco, the APT trustee overseeing the proposed
privatization of PNCC at the time, was responsible for recommending to the
PNCC Board the admission of PNCC’s liability for the Marubeni loans. Atty.
Francisco based his recommendation solely on a mere alleged opinion of the
Feria Law Office. Atty. Francisco did not bother to show this "Feria opinion" to
the members of the PNCC Board, except to Atty. Renato Valdecantos, who as
the then PNCC Chairman did not also show the "Feria opinion" to the other
PNCC Board members. During the Senate hearings, Atty. Francisco could not
produce a copy of the "Feria opinion." The Senators grilled Atty. Francisco on
his recommendation to recognize PNCC’s liability for the Marubeni loans, thus:
THE CHAIRMAN. x x x You were the one who wrote this letter or rather this
memorandum dated 17 October 2000 to Atty. Valdecantos. Can you tell us the
background why you wrote the letter acknowledging a debt which is non-
existent?
MR. FRANCISCO. I was appointed as the trustee in charge of the privatization
of the PNCC at that time, sir. And I was tasked to do a study and engage the
services of financial advisors as well as legal advisors to do a legal audit and
financial study on the position of PNCC. I bidded out these engagements, the
financial advisership went to Punongbayan and Araullo. The legal audit went to
the Feria Law Offices.
THE CHAIRMAN. Spell it. Boy Feria?
MR. FRANCISCO. Feria-- Feria.
THE CHAIRMAN. Lugto?
MR. FRANCISCO. Yes. Yes, Your Honor. And this was the findings of the Feria
Law Office – that the Marubeni account was a legal obligation.
So, I presented this to our board. Based on the findings of the legal audit
conducted by the Ferial Law Offices, sir.
THE CHAIRMAN. Why did you not ask the government corporate counsel?
Why did you have to ask for the opinion of an outside counsel?
MR. FRANCISCO. That was the – that was the mandate given to us, sir, that we
have to engage the ...
THE CHAIRMAN. Mandate given by whom?
MR. FRANCISCO. That is what we usually do, sir, in the APT.
THE CHAIRMAN. Ah, you get outside counsel?
MR. FRANCISCO. Yes, we...
THE CHAIRMAN. Not necessarily the government corporate counsel?
MR. FRANCISCO. No, sir.
THE CHAIRMAN. So, on the basis of the opinion of outside counsel, private,
you proceeded to, in effect, recognize an obligation which is not even entered in
the books of the PNCC? You probably resuscitated a non-existing obligation
anymore?
MR. FRANCISCO. Sir, I just based my recommendation on the professional
findings of the law office that we engaged, sir.
THE CHAIRMAN. Did you not ask for the opinion of the government corporate
counsel?
MR. FRANCISCO. No, sir.
THE CHAIRMAN. Why?
MR. FRANCISCO. I felt that the engagements of the law office was sufficient,
anyway we were going to raise it to the Committee on Privatization for their
approval or disapproval, sir.
THE CHAIRMAN. The COP?
MR. FRANCISCO. Yes, sir.
THE CHAIRMAN. That’s a cabinet level?
MR. FRANCISCO. Yes, sir. And we did that, sir.
THE CHAIRMAN. Now... So you sent your memo to Atty. Renato B.
Valdecantos, who unfortunately is not here but I think we have to get his response
to this. And as part of the minutes of special meeting with the board of directors
on October 20, 2000, the board resolved in its Board Resolution No. 092-2000,
the board resolved to recognize, acknowledge and confirm PNCC’s obligations
as of September 30, 1999, etcetera, etcetera. (A), or rather (B), Marubeni
Corporation in the amount of ₱10,740,000.
Now, we asked to be here because the franchise of PNCC is hanging in a balance
because of the – on the questions on this acknowledgement. So we want to be
educated.
Now, the paper trail starts with your letter. So, that’s it – that’s my kuwan, Frank.
Yes, Senator Drilon.
SEN. DRILON. Thank you, Mr. Chairman.
Yes, Atty. Francisco, you have a copy of the minutes of October 20, 2000?
MR. FRANCISCO. I’m sorry, sir, we don’t have a copy.
SEN. DRILON. May we ask the corporate secretary of PNCC to provide us with
a copy?
Okay naman andiyan siya.
(Ms. Ogan handing the document to Mr. Francisco.)
You have familiarized yourselves with the minutes, Atty. Francisco?
MR. FRANCISCO. Yes, sir.
SEN. DRILON. Now, mention is made of a memorandum here on line 8, page 3
of this board’s minutes. It says, "Director Francisco has prepared a memorandum
requesting confirmation, acknowledgement, and ratification of this indebtedness
of PNCC to the national government which was determined by Bureau of
Treasury as of September 30, 1999 is 36,023,784,751. And with respect to
PNCC’s obligation to Marubeni, this has been determined to be in the total
amount of 10,743,103,388, also as of September 30, 1999; that there is need to
ratify this because there has already been a representation made with respect to
the review of the financial records of PNCC by Punongbayan and Araullo, which
have been included as part of the package of APT’s disposition to the national
government’s interest in PNCC."
You recall having made this representation as found in the minutes, I assume,
Atty. Francisco?
MR. FRANCISCO. Yes, sir. But I’d like to be refreshed on the memorandum,
sir, because I don’t have a copy.
SEN. DRILON. Yes, this memorandum was cited earlier by Senator Arroyo, and
maybe the secretary can give him a copy? Give him a copy?
MS. OGAN. (Handing the document to Mr. Francisco.)
MR. FRANCISCO. Your Honor, I have here a memorandum to the PNCC board
through Atty. Valdecantos, which says that – in the last paragraph, if I may read?
"May we request therefore, that a board resolution be adopted, acknowledging
and confirming the aforementioned PNCC obligations with the national
government and Marubeni as borne out by the due diligence audit."
SEN. DRILON. This is the memorandum referred to in these minutes. This
memorandum dated 17 October 2000 is the memorandum referred to in the
minutes.
MR. FRANCISCO. I would assume, Mr. Chairman.
SEN. DRILON. Right.
Now, the Punongbayan representative who was here yesterday, Mr...
THE CHAIRMAN. Navarro.
SEN. DRILON. ... Navarro denied that he made this recommendation.
THE CHAIRMAN. He asked for opinion, legal opinion.
SEN. DRILON. He said that they never made this representation and the
transcript will bear us out. They said that they never made this representation that
the account of Marubeni should be recognized.
MR. FRANCISCO. Mr. Chairman, in the memorandum, I only mentioned here
the acknowledgement and confirmation of the PNCC obligations. I was not
asking for a ratification. I never mentioned ratification in the memorandum. I just
based my memo based on the due diligence audit of the Feria Law Offices.
SEN. DRILON. Can you say that again? You never asked for a ratification...
MR. FRANCISCO. No. I never mentioned in my memorandum that I was asking
for a ratification. I was just – in my memo it says, "acknowledging and
confirming the PNCC obligation." This was what ...
SEN. DRILON. Isn’t it the same as ratification? I mean, what’s the difference?
MR. FRANCISCO. I – well, my memorandum was meant really just to confirm
the findings of the legal audit as ...
SEN. DRILON. In your mind as a lawyer, Atty. Francisco, there’s a difference
between ratification and – what’s your term? -- acknowledgment and
confirmation?
MR. FRANCISCO. Well, I guess there’s no difference, Mr. Chairman.
SEN. DRILON. Right.
Anyway, just of record, the Punongbayan representatives here yesterday said that
they never made such representation.
In any case, now you’re saying it’s the Feria Law Office who rendered that
opinion? Can we – you know, yesterday we were asking for a copy of this opinion
but we were never furnished one. The ... no less than the Chairman of this
Committee was asking for a copy.
THE CHAIRMAN. Well, copy of the opinion...
MS. OGAN. Yes, Mr. Chairman, we were never furnished a copy of this opinion
because it’s opinion rendered for the Asset Privatization Trust which is its client,
not the PNCC, Mr. Chairman.
THE CHAIRMAN. All right. The question is whether – but you see, this is a
memorandum of Atty. Francisco to the Chairman of the Asset Privatization Trust.
You say now that you were never furnished a copy because that’s supposed to be
with the Asset ...
MS. OGAN. Yes, Mr. Chairman.
THE CHAIRMAN. ... but yet the action of – or rather the opinion of the Feria
Law Offices was in effect adopted by the board of directors of PNCC in its
minutes of October 20, 2000 where you are the corporate secretary, Ms. Ogan.
MS. OGAN. Yes, Mr. Chairman.
THE CHAIRMAN. So, what I am saying is that this opinion or rather the opinion
of the Feria Law Offices of which you don’t have a copy?
MS. OGAN. Yes, sir.
THE CHAIRMAN. And the reason being that, it does not concern the PNCC
because that’s an opinion rendered for APT and not for the PNCC.
MS. OGAN. Yes, Mr. Chairman, that was what we were told although we made
several requests to the APT, sir.
THE CHAIRMAN. All right. Now, since it was for the APT and not for the
PNCC, I ask the question why did PNCC adopt it? That was not for the
consumption of PNCC. It was for the consumption of the Asset Privatization
Trust. And that is what Atty. Francisco says and it’s confirmed by you saying that
this was a memo – you don’t have a copy because this was sought for by APT
and the Feria Law Offices just provided an opinion – provided the APT with an
opinion. So, as corporate secretary, the board of directors of PNCC adopted it,
recognized the Marubeni Corporation.
You read the minutes of the October 20, 2000 meeting of the board of directors
on Item V. The resolution speaks of .. so, go ahead.
MS. OGAN. I gave my copies. Yes, sir.
THE CHAIRMAN. In effect the Feria Law Offices’ opinion was for the
consumption of the APT.
MS. OGAN. That was what we were told, Mr. Chairman.
THE CHAIRMAN. And you were not even provided with a copy.
THE CHAIRMAN. Yet you adopted it.
MS. OGAN. Yes, sir.
SEN DRILON. Considering you were the corporate secretary.
THE CHAIRMAN. She was the corporate secretary.
SEN. DRILON. She was just recording the minutes.
THE CHAIRMAN. Yes, she was recording.
Now, we are asking you now why it was taken up?
MS. OGAN. Yes, sir, Mr. Chairman, this was mentioned in the memorandum of
Atty. Francisco, memorandum to the board.
SEN. DRILON. Mr. Chairman, Mr. Francisco represented APT in the board of
PNCC. And is that correct, Mr. Francisco?
THE CHAIRMAN. You’re an ex-officio member.
SEN. DRILON. Yes.
MR. FRANCISCO. Ex-officio member only, sir, as trustee in charge of the
privatization of PNCC.
SEN. DRILON. With the permission of Mr. Chair, may I ask a question...
THE CHAIRMAN. Oh, yes, Senator Drilon.
SEN. DRILON. Atty. Francisco, you sat in the PNCC board as APT
representative, you are a lawyer, there was a legal opinion of Feria, Feria, Lugto,
Lao Law Offices which you cited in your memorandum. Did you discuss – first,
did you give a copy of this opinion to PNCC?
MR. FRANCISCO. I gave a copy of this opinion, sir, to our chairman who was
also a member of the board of PNCC, Mr. Valdecantos, sir.
SEN. DRILON. And because he was...
MR. FRANCISCO. Because he was my immediate boss in the APT.
SEN. DRILON. Apparently, [it] just ended up in the personal possession of Mr.
Valdecantos because the corporate secretary, Glenda Ogan, who is supposed to
be the custodian of the records of the board never saw a copy of this.
MR. FRANCISCO. Well, sir, my – the copy that I gave was to Mr. Valdecantos
because he was the one sitting in the PNCC board, sir.
SEN. DRILON. No, you sit in the board.
MR. FRANCISCO. I was just an ex-officio member. And all my reports were
coursed through our Chairman, Mr. Valdecantos, sir.
SEN. DRILON. Now, did you ever tell the board that there is a legal position
taken or at least from the documents it is possible that the claim has prescribed?
MR. FRANCISCO. I took this up in the board meeting of the PNCC at that time
and I told them about this matter, sir.
SEN. DRILON. No, you told them that the claim could have, under the law, could
have prescribed?
MR. FRANCISCO. No, sir.
SEN. DRILON. Why? You mean, you didn’t tell the board that it is possible that
this liability is no longer a valid liability because it has prescribed?
MR. FRANCISCO. I did not dwell into the findings anymore, sir, because I found
the professional opinion of the Feria Law Office to be sufficient. 49 (Emphasis
supplied)
Atty. Francisco’s act of recommending to the PNCC Board the acknowledgment
of the Marubeni loans based only on an opinion of a private law firm, without
consulting the OGCC and without showing this opinion to the members of the
PNCC Board except to Atty. Valdecantos, reflects how shockingly little his
concern was for PNCC, contrary to his claim that "he only had the interest of
PNCC at heart." In fact, if what was involved was his own money, Atty. Francisco
would have preferred not just two, but at least three different opinions on how to
deal with the matter, and he would have maintained his non-liability.
SEN. OSMEÑA. x x x
All right. And lastly, just to clear our minds, there has always been this finger-
pointing, of course, whenever – this is typical Filipino. When they're caught in a
bind, they always point a finger, they pretend they don't know. And it just amazes
me that you have been appointed trustees, meaning, representatives of the
Filipino people, that's what you were at APT, right? You were not Erap's
representatives, you were representative of the Filipino people and you were
tasked to conserve the assets that that had been confiscated from various cronies
of the previous administration. And here, you are asked to recognize the P10
billion debt and you point only to one law firm. If you have cancer, don't you to
a second opinion, a second doctor or a third doctor? This is just a question. I am
just asking you for your opinion if you would take the advice of the first doctor
who tells you that he's got to open you up.
MR. FRANCISCO. I would go to three or more doctors, sir.
SEN. OSMEÑA. Three or more. Yeah, that's right. And in this case the APT did
not do so.
MR. FRANCISCO. We relied on the findings of the …
SEN. OSMEÑA. If these were your money, would you have gone also to obtain
a second, third opinion from other law firms. Kung pera mo itong 10 billion na
ito. Siguro you're not gonna give it up that easily ano, 'di ba?
MR. FRANCISCO. Yes, sir.
SEN. OSMEÑA. You'll probably keep it in court for the next 20 years.
x x x x50 (Emphasis supplied)
This is a clear admission by Atty. Francisco of bad faith in directing the affairs
of PNCC - that he would not have recognized the Marubeni loans if his own funds
were involved or if he were the owner of PNCC.
The PNCC Board admitted liability for the ₱10.743 billion Marubeni loans
without seeing, reading or discussing the "Feria opinion" which was the sole basis
for its admission of liability. Such act surely goes against ordinary human nature,
and amounts to gross negligence and utter bad faith, even bordering on fraud, on
the part of the PNCC Board in directing the affairs of the corporation. Owing
loyalty to PNCC and its stockholders, the PNCC Board should have exercised
utmost care and diligence in admitting a gargantuan debt of ₱10.743 billion that
would certainly force PNCC into insolvency, a debt that previous PNCC Boards
in the last two decades consistently refused to admit.
Instead, the PNCC Board admitted PNCC’s liability for the Marubeni loans
relying solely on a mere opinion of a private law office, which opinion the PNCC
Board members never saw, except for Atty. Valdecantos and Atty. Francisco. The
PNCC Board knew that PNCC, as a government owned and controlled
corporation (GOCC), must rely "exclusively" on the opinion of the OGCC.
Section 1 of Memorandum Circular No. 9 dated 27 August 1998 issued by the
President states:
SECTION 1. All legal matters pertaining to government-owned or controlled
corporations, their subsidiaries, other corporate off-springs and government
acquired asset corporations (GOCCs) shall be exclusively referred to and handled
by the Office of the Government Corporate Counsel (OGCC). (Emphasis
supplied)
The PNCC Board acted in bad faith in relying on the opinion of a private lawyer
knowing that PNCC is required to rely "exclusively" on the OGCC’s opinion.
Worse, the PNCC Board, in admitting liability for ₱10.743 billion, relied on the
recommendation of a private lawyer whose opinion the PNCC Board members
have not even seen.
During the oral arguments, Atty. Sison explained to the Court that the intention
of APT was for the PNCC Board merely to disclose the claim of Marubeni as
part of APT's full disclosure policy to prospective buyers of PNCC. Atty. Sison
stated that it was not the intention of APT for the PNCC Board to admit liability
for the Marubeni loans, thus:
x x x It was the Asset Privatization Trust A-P-T that was tasked to sell the
company. The A-P-T, for purposes of disclosure statements, tasked the Feria Law
Office to handle the documentation and the study of all legal issues that had to be
resolved or clarified for the information of prospective bidders and or buyers. In
the performance of its assigned task the Feria Law Office came upon the
Marubeni claim and mentioned that the APTC and/or PNCC must disclose that
there is a claim by Marubeni against PNCC for purposes of satisfying the
requirements of full disclosure. This seemingly innocent statement or
requirement made by the Feria Law Office was then taken by two officials of the
Asset Privatization Trust and with malice aforethought turned it into the basis for
a multi-billion peso debt by the now government owned and/or controlled PNCC.
x x x.51 (Emphasis supplied)
While the PNCC Board passed Board Resolution No. BD-099-2000 amending
Board Resolution No. BD-092-2000, such amendment merely added conditions
for the recognition of the Marubeni loans, namely, subjecting the recognition to
a final determination by COA of the amount involved and to the declaration by
OGCC of the legality of PNCC’s liability. However, the PNCC Board reiterated
and stood firm that it "recognizes, acknowledges and confirms its obligations"
for the Marubeni loans. Apparently, Board Resolution No. BD-099-2000 was a
futile attempt to "revoke" Board Resolution No. BD-092-2000. Atty. Alfredo
Laya, Jr., a former PNCC Director, spoke on his protests against Board
Resolution No. BD-092-2000 at the Senate hearings, thus:
MR. LAYA. Mr. Chairman, if I can …
THE CHAIRMAN. Were you also at the board?
MR. LAYA. At that time, yes, sir.
THE CHAIRMAN. Okay, go ahead.
MR. LAYA. That's why if – maybe this can help clarify the sequence. There was
this meeting on October 20. This matter of the Marubeni liability or account was
also discussed. Mr. Macasaet, if I may try to refresh. And there was some
discussion, sir, and in fact, they were saying even at that stage that there should
be a COA or an OGCC audit. Now, that was during the discussion of October 20.
Later on, the minutes came out. The practice, then, sir, was for the minutes to
come out at the start of the meeting of the subsequent. So the minutes of October
20 came out on November 22 and then we were going over it. And that is in the
subsequent minutes of the meeting …
THE CHAIRMAN. May I interrupt. You were taking up in your November 22
meeting the October 20 minutes?
MR. LAYA. Yes, sir.
THE CHAIRMAN. This minutes that we have?
MR. LAYA. Yes, sir.
THE CHAIRMAN. All right, go ahead.
MR. LAYA. Now, in the November 22 meeting, we noticed this resolution
already for confirmation of the board – proceedings of October 20. So
immediately we made – actually, protest would be a better term for that – we
protested the wording of the resolution and that's why we came up with this
resolution amending the October 20 resolution.
SEN. DRILON. So you are saying, Mr. Laya, that the minutes of October 20 did
not accurately reflect the decisions that you made on October 20 because you
were saying that this recognition should be subject to OGCC and COA? You
seem to imply and we want to make it – and I want to get that for the record. You
seem to imply that there was no decision to recognize the obligation during that
meeting because you wanted it to subject it to COA and OGCC, is that correct?
MR. LAYA. Yes, your Honor.
SEN. DRILON. So how did...
MR. LAYA. That's my understanding of the proceedings at that time, that's why
in the subsequent November 22 meeting, we raised this point about obtaining a
COA and OGCC opinion.
SEN. DRILON. Yes. But you know, the November 22 meeting repeated the
wording of the resolution previously adopted only now you are saying subject to
final determination which is completely of different import from what you are
saying was your understanding of the decision arrived at on October 20.
MR. LAYA. Yes, sir. Because our thinking then...
SEN. DRILON. What do you mean, yes, sir?
MR. LAYA. It's just a claim under discussion but then the way it is translated, as
the minutes of October 20 were not really verbatim.
SEN. DRILON. So, you never intended to recognize the obligation.
MR. LAYA. I think so, sir. That was our – personally, that was my position.
SEN. DRILON. How did it happen, Corporate Secretary Ogan, that the minutes
did not reflect what the board …
THE CHAIRMAN. Ms. Pasetes …
MS. PASETES. Yes, Mr. Chairman.
THE CHAIRMAN. … you are the chief financial officer of PNCC.
MS. PASETES. Your Honor, before that November 22 board meeting,
management headed by Mr. Rolando Macasaet, myself and Atty. Ogan had a
discussion about the recognition of the obligations of 10 billion of Marubeni and
36 billion of the national government on whether to recognize this as an
obligation in our books or recognize it as an obligation in the pro forma financial
statement to be used for the privatization of PNCC because recognizing both
obligations in the books of PNCC would defeat our going concern status and that
is where the position of the president then, Mr. Macasaet, stemmed from and he
went back to the board and moved to reconsider the position of October 20, 2000,
Mr. Chair.52 (Emphasis supplied)
In other words, despite Atty. Laya’s objections to PNCC’s admitting liability for
the Marubeni loans, the PNCC Board still admitted the same and merely imposed
additional conditions to temper somehow the devastating effects of Board
Resolution No. BD-092-2000.
The act of the PNCC Board in issuing Board Resolution No. BD-092-2000
expressly admitting liability for the Marubeni loans demonstrates the PNCC
Board’s gross and willful disregard of the requisite care and diligence in
managing the affairs of PNCC, amounting to bad faith and resulting in grave and
irreparable injury to PNCC and its stockholders. This reckless and treacherous
move on the part of the PNCC Board clearly constitutes a serious breach of its
fiduciary duty to PNCC and its stockholders, rendering the members of the PNCC
Board liable under Section 31 of the Corporation Code, which provides:
SEC. 31. Liability of directors, trustees or officers. -- Directors or trustees who
willfully and knowingly vote for or assent to patently unlawful acts of the
corporation or who are guilty of gross negligence or bad faith in directing the
affairs of the corporation or acquire any personal or pecuniary interest in conflict
with their duty as such directors or trustees shall be liable jointly and severally
for all damages resulting therefrom suffered by the corporation, its stockholders
or members and other persons.
When a director, trustee or officer attempts to acquire or acquires, in violation of
his duty, any interest adverse to the corporation in respect of any matter which
has been reposed in him in confidence, as to which equity imposes a disability
upon him to deal in his own behalf, he shall be liable as a trustee for the
corporation and must account for the profits which otherwise would have accrued
to the corporation.
Soon after the short-lived Estrada Administration, the PNCC Board revoked its
previous admission of liability for the Marubeni loans. During the oral
arguments, Atty. Sison narrated to the Court:
x x x After President Estrada was ousted, I was appointed as President and
Chairman of PNCC in April of 2001, this particular board resolution was brought
to my attention and I immediately put the matter before the board. I had no
problem in convincing them to reverse the recognition as it was illegal and had
no basis in fact. The vote to overturn that resolution was unanimous. Strange to
say that some who voted to overturn the recognition were part of the old board
that approved it. Stranger still, Renato Valdecantos who was still a member of
the Board voted in favor of reversing the resolution he himself instigated and
pushed. Some of the board members who voted to recognize the obligation of
Marubeni even came to me privately and said "pinilit lang kami." x x
x.53 (Emphasis supplied)
In approving PNCC Board Resolution Nos. BD-092-2000 and BD-099-2000, the
PNCC Board caused undue injury to the Government and gave unwarranted
benefits to Radstock, through manifest partiality, evident bad faith or gross
inexcusable negligence of the PNCC Board. Such acts are declared under Section
3(e) of RA 3019 or the Anti-Graft and Corrupt Practices Act, as "corrupt practices
xxx and xxx unlawful." Being unlawful and criminal acts, these PNCC Board
Resolutions are void ab initio and cannot be implemented or in any way given
effect by the Executive or Judicial branch of the Government.
Not content with forcing PNCC to commit corporate suicide with the admission
of liability for the Marubeni loans under Board Resolution Nos. BD-092-2000
and BD-099-2000, the PNCC Board drove the last nail on PNCC’s coffin when
the PNCC Board entered into the manifestly and grossly disadvantageous
Compromise Agreement with Radstock. This time, the OGCC, headed by Agnes
DST Devanadera, reversed itself and recommended approval of the Compromise
Agreement to the PNCC Board. As Atty. Sison explained to the Court during the
oral arguments:
x x x While the case was pending in the Court of Appeals, Radstock in a rare
display of extreme generosity, conveniently convinced the Board of PNCC to
enter into a compromise agreement for ½ the amount of the judgment rendered
by the RTC or ₱6.5 Billion Pesos. This time the OGCC, under the leadership of
now Solicitor General Agnes Devanadera, approved the compromise agreement
abandoning the previous OGCC position that PNCC had a meritorious case and
would be hard press to lose the case. What is strange is that although the
compromise agreement we seek to stop ostensibly is for ₱6.5 Billion only, truth
and in fact, the agreement agrees to convey to Radstock all or substantially all of
the assets of PNCC worth ₱18 Billion Pesos. There are three items that are
undervalued here, the real estate that was turned over as a result of the
controversial agreement, the toll revenues that were being assigned and the value
of the new shares of PNCC the difference is about ₱12 Billion Pesos. x x x
(Emphasis supplied)
V.
The Compromise Agreement is Void
for Being Contrary to the Constitution,
Existing Laws, and Public Policy
For a better understanding of the present case, the pertinent terms and conditions
of the Compromise Agreement between PNCC and Radstock are quoted below:
COMPROMISE AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Agreement made and entered into this 17th day of August 2006, in
Mandaluyong City, Metro Manila, Philippines, by and between:
PHILIPPINE NATIONAL CONSTRUCTION CORPORATION, a government
acquired asset corporation, created and existing under the laws of the Republic
of the Philippines, with principal office address at EDSA corner Reliance Street,
Mandaluyong City, Philippines, duly represented herein by its Chairman
ARTHUR N. AGUILAR, pursuant to a Board Resolution attached herewith as
Annex "A" and made an integral part hereof, hereinafter referred to as PNCC;
- and -
RADSTOCK SECURITIES LIMITED, a private corporation incorporated in the
British Virgin Islands, with office address at Suite 1402 1 Duddell Street, Central
Hongkong duly-represented herein by its Director, CARLOS G. DOMINGUEZ,
pursuant to a Board Resolution attached herewith as Annex "B" and made an
integral part hereof, hereinafter referred to as RADSTOCK.
WITNESSETH:
WHEREAS, on January 15, 2001, RADSTOCK, as assignee of Marubeni
Corporation, filed a complaint for sum of money and damages with application
for a writ of preliminary attachment with the Regional Trial Court (RTC),
Mandaluyong City, docketed as Civil Case No. MC-01-1398, to collect on
PNCC’s guarantees on the unpaid loan obligations of CDCP Mining Corporation
as provided under an Advance Payment Agreement and Loan Agreement;
WHEREAS, on December 10, 2002, the RTC of Mandaluyong rendered a
decision in favor of plaintiff RADSTOCK directing PNCC to pay the total
amount of Thirteen Billion One Hundred Fifty One Million Nine Hundred Fifty-
Six Thousand Five Hundred Twenty-Eight Pesos (₱13,151,956,528.00) with
interest from October 15, 2001 plus Ten Million Pesos (₱10,000,000.00) as
attorney's fees.
WHEREAS, PNCC had elevated the case to the Court of Appeals (CA-G.R. SP
No. 66654) on Certiorari and thereafter, to the Supreme Court (G.R. No. 156887)
which Courts have consistently ruled that the RTC did not commit grave abuse
of discretion when it denied PNCC’s Motion to Dismiss which sets forth similar
or substantially the same grounds or defenses as those raised in PNCC's Answer;
WHEREAS, the case has remained pending for almost six (6) years even after
the main action was appealed to the Court of Appeals;
WHEREAS, on the basis of the RTC Decision dated December 10, 2002, the
current value of the judgment debt against PNCC stands at ₱17,040,843,968.00
as of July 31, 2006 (the "Judgment Debt");
WHEREAS, RADSTOCK is willing to settle the case at the reduced Compromise
Amount of Six Billion One Hundred Ninety-Six Million Pesos
(₱6,196,000,000.00) which may be paid by PNCC, either in cash or in kind to
avoid the trouble and inconvenience of further litigation as a gesture of goodwill
and cooperation;
WHEREAS, it is an established legal policy or principle that litigants in civil
cases should be encouraged to compromise or amicably settle their claims not
only to avoid litigation but also to put an end to one already commenced (Articles
2028 and 2029, Civil Code);
WHEREAS, this Compromise Agreement has been approved by the respective
Board of Directors of both PNCC and RADSTOCK, subject to the approval of
the Honorable Court;
NOW, THEREFORE, for and in consideration of the foregoing premises, and the
mutual covenants, stipulations and agreements herein contained, PNCC and
RADSTOCK have agreed to amicably settle the above captioned Radstock case
under the following terms and conditions:
1. RADSTOCK agrees to receive and accept from PNCC in full and complete
settlement of the Judgment Debt, the reduced amount of Six Billion, One
Hundred Ninety-Six Million Pesos (₱6,196,000,000.00) (the "Compromise
Amount").
2. This Compromise Amount shall be paid by PNCC to RADSTOCK in the
following manner:
a. PNCC shall assign to a third party assignee to be designated by RADSTOCK
all its rights and interests to the following real properties provided the assignee
shall be duly qualified to own real properties in the Philippines;
(1) PNCC’s rights over that parcel of land located in Pasay City with a total area
of One Hundred Twenty-Nine Thousand Five Hundred Forty-Eight (129,548)
square meters, more or less, and which is covered by and more particularly
described in Transfer Certificate of Title No. T-34997 of the Registry of Deeds
for Pasay City. The transfer value is ₱3,817,779,000.00.
PNCC’s rights and interests in Transfer Certificate of Title No. T-34997 of the
Registry of Deeds for Pasay City is defined and delineated by Administrative
Order No. 397, Series of 1998, and RADSTOCK is fully aware and recognizes
that PNCC has an undertaking to cede at least 2 hectares of this property to its
creditor, the Philippine National Bank; and that furthermore, the Government
Service Insurance System has also a current and existing claim in the nature of
boundary conflicts, which undertaking and claim will not result in the diminution
of area or value of the property. Radstock recognizes and acknowledges the rights
and interests of GSIS over the said property.
(2) T-452587 (T-23646) - Parañaque (5,123 sq. m.) subject to the clarification of
the Privatization and Management Office (PMO) claims thereon. The transfer
value is ₱45,000,900.00.
(3) T-49499 (529715 including T-68146-G (S-29716) (1,9747-A)-Parañaque
(107 sq. m.) (54 sq. m.) subject to the clarification of the Privatization and
Management Office (PMO) claims thereon. The transfer value is ₱1,409,100.00.
(4) 5-29716-Parañaque (27,762 sq. m.) subject to the clarification of the
Privatization and Management Office (PMO) claims thereon. The transfer value
is ₱242,917,500.00.
(5) P-169 - Tagaytay (49,107 sq. m.). The transfer value is ₱13,749,400.00.
(6) P-170 - Tagaytay (49,100 sq. m.). The transfer value is ₱13,749,400.00.
(7) N-3320 - Town and Country Estate, Antipolo (10,000 sq. m.). The transfer
value is ₱16,800,000.00.
(8) N-7424 - Antipolo (840 sq. m.). The transfer value is ₱940,800.00.
(9) N-7425 - Antipolo (850 sq. m.). The transfer value is ₱952,000.00.
(10) N-7426 - Antipolo (958 sq. m.). The transfer value is ₱1,073,100.00.
(11) T-485276 - Antipolo (741 sq. m.). The transfer value is ₱830,200.00.
(12) T-485277 - Antipolo (680 sq. m.). The transfer value is ₱761,600.00.
(13) T-485278 - Antipolo (701 sq. m.). The transfer value is ₱785,400.00.
(14) T-131500 - Bulacan (CDCP Farms Corp.) (4,945 sq, m.). The transfer value
is ₱6,475,000.00.
(15) T-131501 - Bulacan (678 sq. m.). The transfer value is ₱887,600.00.
(16) T-26,154 (M) - Bocaue, Bulacan (2,841 sq. m.). The transfer value is
₱3,779,300.00.
(17) T-29,308 (M) - Bocaue, Bulacan (733 sq. m.). The transfer value is
₱974,400.00.
(18) T-29,309 (M) Bocaue, Bulacan (1,141 sq. m.). The transfer value is
₱1,517,600.00.
(19) T-260578 (R. Bengzon) Sta. Rita, Guiguinto, Bulacan (20,000 sq. m.). The
transfer value is ₱25,200,000.00.
The transfer values of the foregoing properties are based on 70% of the appraised
value of the respective properties.
b. PNCC shall issue to RADSTOCK or its assignee common shares of the capital
stock of PNCC issued at par value which shall comprise 20% of the outstanding
capital stock of PNCC after the conversion to equity of the debt exposure of the
Privatization Management Office (PMO) and the National Development
Company (NDC) and other government agencies and creditors such that the total
government holdings shall not fall below 70% voting equity subject to the
approval of the Securities and Exchange Commission (SEC) and ratification of
PNCC’s stockholders, if necessary. The assigned value of the shares issued to
RADSTOCK is ₱713 Million based on the approximate last trading price of
PNCC shares in the Philippine Stock Exchange as the date of this agreement,
based further on current generally accepted accounting standards which stipulates
the valuation of shares to be based on the lower of cost or market value.
Subject to the procurement of any and all necessary approvals from the relevant
governmental authorities, PNCC shall deliver to RADSTOCK an instrument
evidencing an undertaking of the Privatization and Management Office (PMO)
to give RADSTOCK or its assignee the right to match any offer to buy the shares
of the capital stock and debts of PNCC held by PMO, in the event the same shares
and debt are offered for privatization.
c. PNCC shall assign to RADSTOCK or its assignee 50% of the PNCC's 6%
share in the gross toll revenue of the Manila North Tollways Corporation
(MNTC), with a Net Present Value of ₱1.287 Billion computed in the manner
outlined in Annex "C" herein attached as an integral part hereof, that shall be due
and owing to PNCC pursuant to the Joint Venture Agreement between PNCC
and First Philippine Infrastructure Development Corp. dated August 29, 1995 and
other related existing agreements, commencing in 2008. It shall be understood
that as a result of this assignment, PNCC shall charge and withhold the amounts,
if any, pertaining to taxes due on the amounts assigned.
Under the Compromise Agreement, PNCC shall pay Radstock the reduced
amount of ₱6,185,000,000.00 in full settlement of PNCC’s guarantee of CDCP
Mining’s debt allegedly totaling ₱17,040,843,968.00 as of 31 July 2006. To
satisfy its reduced obligation, PNCC undertakes to (1) "assign to a third party
assignee to be designated by Radstock all its rights and interests" to the listed real
properties therein; (2) issue to Radstock or its assignee common shares of the
capital stock of PNCC issued at par value which shall comprise 20% of the
outstanding capital stock of PNCC; and (3) assign to Radstock or its assignee
50% of PNCC’s 6% share, for the next 27 years (2008-2035), in the gross toll
revenues of the Manila North Tollways Corporation.
A. The PNCC Board has no power to compromise
the ₱6.185 billion amount.
Does the PNCC Board have the power to compromise the ₱6.185 billion
"reduced" amount? The answer is in the negative.1avvphi1
The Dissenting Opinion asserts that PNCC has the power, citing Section 36(2) of
Presidential Decree No. 1445 (PD 1445), otherwise known as the Government
Auditing Code of the Philippines, enacted in 1978. Section 36 states:
SECTION 36. Power to Compromise Claims. — (1) When the interest of the
government so requires, the Commission may compromise or release in whole or
in part, any claim or settled liability to any government agency not exceeding ten
thousand pesos and with the written approval of the Prime Minister, it may
likewise compromise or release any similar claim or liability not exceeding one
hundred thousand pesos, the application for relief therefrom shall be submitted,
through the Commission and the Prime Minister, with their recommendations, to
the National Assembly.
(2) The respective governing bodies of government-owned or controlled
corporations, and self-governing boards, commissions or agencies of the
government shall have the exclusive power to compromise or release any similar
claim or liability when expressly authorized by their charters and if in their
judgment, the interest of their respective corporations or agencies so requires.
When the charters do not so provide, the power to compromise shall be exercised
by the Commission in accordance with the preceding paragraph. (Emphasis
supplied)
The Dissenting Opinion asserts that since PNCC is incorporated under the
Corporation Code, the PNCC Board has all the powers granted to the governing
boards of corporations incorporated under the Corporation Code, which includes
the power to compromise claims or liabilities.
Section 36 of PD 1445, enacted on 11 June 1978, has been superseded by a later
law -- Section 20(1), Chapter IV, Subtitle B, Title I, Book V of Executive Order
No. 292 or the Administrative Code of 1987, which provides:
Section 20. Power to Compromise Claims. - (1) When the interest of the
Government so requires, the Commission may compromise or release in whole
or in part, any settled claim or liability to any government agency not exceeding
ten thousand pesos arising out of any matter or case before it or within its
jurisdiction, and with the written approval of the President, it may likewise
compromise or release any similar claim or liability not exceeding one hundred
thousand pesos. In case the claim or liability exceeds one hundred thousand
pesos, the application for relief therefrom shall be submitted, through the
Commission and the President, with their recommendations, to the Congress[.] x
x x (Emphasis supplied)
Under this provision,54 the authority to compromise a settled claim or liability
exceeding ₱100,000.00 involving a government agency, as in this case where the
liability amounts to ₱6.185 billion, is vested not in COA but exclusively in
Congress. Congress alone has the power to compromise the ₱6.185 billion
purported liability of PNCC. Without congressional approval, the Compromise
Agreement between PNCC and Radstock involving ₱6.185 billion is void for
being contrary to Section 20(1), Chapter IV, Subtitle B, Title I, Book V of the
Administrative Code of 1987.
PNCC is a "government agency" because Section 2 on Introductory Provisions
of the Revised Administrative Code of 1987 provides that –
Agency of the Government refers to any of the various units of the Government,
including a department, bureau, office, instrumentality, or government-owned or
controlled corporation, or a local government or a distinct unit therein.
(Boldfacing supplied)
Thus, Section 20(1), Chapter IV, Subtitle B, Title I, Book V of the Administrative
Code of 1987 applies to PNCC, which indisputably is a government owned or
controlled corporation.
In the same vein, the COA’s stamp of approval on the Compromise Agreement
is void for violating Section 20(1), Chapter IV, Subtitle B, Title I, Book V of the
Administrative Code of 1987. Clearly, the Dissenting Opinion’s reliance on the
COA’s finding that the terms and conditions of the Compromise Agreement are
"fair and above board" is patently erroneous.
Citing Benedicto v. Board of Administrators of Television Stations RPN, BBC
and IBC,55 the Dissenting Opinion views that congressional approval is not
required for the validity of the Compromise Agreement because the liability of
PNCC is not yet "settled."
In Benedicto, the PCGG filed in the Sandiganbayan a civil case to recover from
the defendants (including Roberto S. Benedicto) their ill-gotten wealth consisting
of funds and other properties. The PCGG executed a compromise agreement with
Roberto S. Benedicto ceding to the latter a substantial part of his ill-gotten assets
and the State granting him immunity from further prosecution. The Court held
that prior congressional approval is not required for the PCGG to enter into a
compromise agreement with persons against whom it has filed actions for
recovery of ill-gotten wealth.
In Benedicto, the Court found that the government’s claim against Benedicto was
not yet settled unlike here where the PNCC Board expressly admitted the liability
of PNCC for the Marubeni loans. In Benedicto, the ownership of the alleged ill-
gotten assets was still being litigated in the Sandiganbayan and no party ever
admitted any liability, unlike here where the PNCC Board had already admitted
through a formal Board Resolution PNCC’s liability for the Marubeni loans.
PNCC’s express admission of liability for the Marubeni loans is essentially the
premise of the execution of the Compromise Agreement. In short, Radstock’s
claim against PNCC is settled by virtue of PNCC’s express admission of liability
for the Marubeni loans. The Compromise Agreement merely reduced this settled
liability from ₱17 billion to ₱6.185 billion.
The provision of the Revised Administrative Code on the power to settle claims
or liabilities was precisely enacted to prevent government agencies from
admitting liabilities against the government, then compromising such "settled"
liabilities. The present case is exactly what the law seeks to prevent, a
compromise agreement on a creditor’s claim settled through admission by a
government agency without the approval of Congress for amounts exceeding
₱100,000.00. What makes the application of the law even more necessary is that
the PNCC Board’s twin moves are manifestly and grossly disadvantageous to the
Government. First, the PNCC admitted solidary liability for a staggering ₱10.743
billion private debt incurred by a private corporation which PNCC does not even
control. Second, the PNCC Board agreed to pay Radstock ₱6.185 billion as a
compromise settlement ahead of all other creditors, including the Government
which is the biggest creditor.
The Dissenting Opinion further argues that since the PNCC is incorporated under
the Corporation Code, it has the power, through its Board of Directors, to
compromise just like any other private corporation organized under the
Corporation Code. Thus, the Dissenting Opinion states:
Not being a government corporation created by special law, PNCC does not owe
its creation to some charter or special law, but to the Corporation Code. Its powers
are enumerated in the Corporation Code and its articles of incorporation. As an
autonomous entity, it undoubtedly has the power to compromise, and to enter into
a settlement through its Board of Directors, just like any other private
corporation organized under the Corporation Code. To maintain otherwise is to
ignore the character of PNCC as a corporate entity organized under the
Corporation Code, by which it was vested with a personality and identity distinct
and separate from those of its stockholders or members. (Boldfacing and
underlining supplied)
The Dissenting Opinion is woefully wide off the mark. The PNCC is not "just
like any other private corporation" precisely because it is not a private corporation
but indisputably a government owned corporation. Neither is PNCC "an
autonomous entity" considering that PNCC is under the Department of Trade and
Industry, over which the President exercises control. To claim that PNCC is an
"autonomous entity" is to say that it is a lost command in the Executive branch,
a concept that violates the President's constitutional power of control over the
entire Executive branch of government.56
The government nominees in the PNCC Board, who practically compose the
entire PNCC Board, are public officers subject to the Anti-Graft and Corrupt
Practices Act, accountable to the Government and the Filipino people. To hold
that a corporation incorporated under the Corporation Code, despite its being
90.3% owned by the Government, is "an autonomous entity" that could solely
through its Board of Directors compromise, and transfer ownership of,
substantially all its assets to a private third party without the approval required
under the Administrative Code of 1987,57 is to invite the plunder of all such
government owned corporations.
The Dissenting Opinion’s claim that PNCC is an autonomous entity just like any
other private corporation is inconsistent with its assertion that Section 36(2) of
the Government Auditing Code is the governing law in determining PNCC's
power to compromise. Section 36(2) of the Government Auditing Code expressly
states that it applies to the governing bodies of "government-owned or
controlled corporations." The phrase "government-owned or controlled
corporations" refers to both those created by special charter as well as those
incorporated under the Corporation Code. Section 2, Article IX-D of the
Constitution provides:
SECTION 2. (1) The Commission on Audit shall have the power, authority, and
duty to examine, audit, and settle all accounts pertaining to the revenue and
receipts of, and expenditures or uses of funds and property, owned or held in trust
by, or pertaining to, the Government, or any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled corporations with
original charters, and on a post-audit basis: (a) constitutional bodies,
commissions and offices that have been granted fiscal autonomy under this
Constitution; (b) autonomous state colleges and universities; (c) other
government-owned or controlled corporations and their subsidiaries; and (d) such
non-governmental entities receiving subsidy or equity, directly or indirectly,
from or through the Government, which are required by law or the granting
institution to submit to such audit as a condition of subsidy or equity. However,
where the internal control system of the audited agencies is inadequate, the
Commission may adopt such measures, including temporary or special pre-audit,
as are necessary and appropriate to correct the deficiencies. It shall keep the
general accounts of the Government and, for such period as may be provided by
law, preserve the vouchers and other supporting papers pertaining thereto.
(2) The Commission shall have exclusive authority, subject to the limitations in
this Article, to define the scope of its audit and examination, establish the
techniques and methods required therefor, and promulgate accounting and
auditing rules and regulations, including those for the prevention and
disallowance of irregular, unnecessary, excessive, extravagant, or
unconscionable expenditures, or uses of government funds and properties.
(Emphasis supplied)
In explaining the extent of the jurisdiction of COA over government owned or
controlled corporations, this Court declared in Feliciano v. Commission on
Audit:58
The COA's audit jurisdiction extends not only to government "agencies or
instrumentalities," but also to "government-owned and controlled corporations
with original charters" as well as "other government-owned or controlled
corporations" without original charters.
xxxx
Petitioner forgets that the constitutional criterion on the exercise of COA's audit
jurisdiction depends on the government's ownership or control of a corporation.
The nature of the corporation, whether it is private, quasi-public, or public is
immaterial.
The Constitution vests in the COA audit jurisdiction over "government-owned
and controlled corporations with original charters," as well as "government-
owned or controlled corporations" without original charters. GOCCs with
original charters are subject to COA pre-audit, while GOCCs without original
charters are subject to COA post-audit. GOCCs without original charters refer to
corporations created under the Corporation Code but are owned or controlled by
the government. The nature or purpose of the corporation is not material in
determining COA's audit jurisdiction. Neither is the manner of creation of a
corporation, whether under a general or special law.
Clearly, the COA’s audit jurisdiction extends to government owned or controlled
corporations incorporated under the Corporation Code. Thus, the COA must
apply the Government Auditing Code in the audit and examination of the
accounts of such government owned or controlled corporations even though
incorporated under the Corporation Code. This means that Section 20(1), Chapter
IV, Subtitle B, Title I, Book V of the Administrative Code of 1987 on the power
to compromise, which superseded Section 36 of the Government Auditing Code,
applies to the present case in determining PNCC’s power to compromise. In fact,
the COA has been regularly auditing PNCC on a post-audit basis in accordance
with Section 2, Article IX-D of the Constitution, the Government Auditing Code,
and COA rules and regulations.
B. PNCC’s toll fees are public funds.
PD 1113 granted PNCC a 30-year franchise to construct, operate and maintain
toll facilities in the North and South Luzon Expressways. Section 1 of PD
111359 provides:
Section 1. Any provision of law to the contrary notwithstanding, there is hereby
granted to the Construction and Development Corporation of the Philippines
(CDCP), a corporation duly organized and registered under the laws of the
Philippines, hereinafter called the GRANTEE, for a period of thirty (30) years
from May 1, 1977 the right, privilege and authority to construct, operate and
maintain toll facilities covering the expressways from Balintawak (Station 9 +
563) to Carmen, Rosales, Pangasinan and from Nichols, Pasay City (Station 10
+ 540) to Lucena, Quezon, hereinafter referred to collectively as North Luzon
Expressway, respectively.
The franchise herein granted shall include the right to collect toll fees at such
rates as may be fixed and/or authorized by the Toll Regulatory Board hereinafter
referred to as the Board created under Presidential Decree No. 1112 for the use
of the expressways above-mentioned. (Emphasis supplied)
Section 2 of PD 1894,60 which amended PD 1113 to include in PNCC’s franchise
the Metro Manila expressway, also provides:
Section 2. The term of the franchise provided under Presidential Decree No. 1113
for the North Luzon Expressway and the South Luzon Expressway which is thirty
(30) years from 1 May 1977 shall remain the same; provided that, the franchise
granted for the Metro Manila Expressway and all extensions linkages, stretches
and diversions that may be constructed after the date of approval of this decree
shall likewise have a term of thirty (30) years commencing from the date of
completion of the project. (Emphasis supplied)
Based on these provisions, the franchise of the PNCC expired on 1 May 2007 or
thirty years from 1 May 1977.
PNCC, however, claims that under PD 1894, the North Luzon Expressway
(NLEX) shall have a term of 30 years from the date of its completion in 2005.
PNCC argues that the proviso in Section 2 of PD 1894 gave "toll road projects
completed within the franchise period and after the approval of PD No. 1894 on
12 December 1983 their own thirty-year term commencing from the date of the
completion of the said project, notwithstanding the expiry of the said franchise."
This contention is untenable.
The proviso in Section 2 of PD 1894 refers to the franchise granted for the Metro
Manila Expressway and all extensions linkages, stretches and diversions
constructed after the approval of PD 1894. It does not pertain to the NLEX
because the term of the NLEX franchise, "which is 30 years from 1 May
1977, shall remain the same," as expressly provided in the first sentence of the
same Section 2 of PD 1894. To construe that the NLEX franchise had a new term
of 30 years starting from 2005 glaringly conflicts with the plain, clear and
unequivocal language of the first sentence of Section 2 of PD 1894. That would
be clearly absurd.
There is no dispute that Congress did not renew PNCC’s franchise after its expiry
on 1 May 2007. However, PNCC asserts that it "remains a viable corporate entity
even after the expiration of its franchise under Presidential Decree No. 1113."
PNCC points out that the Toll Regulatory Board (TRB) granted PNCC a
"Tollway Operation Certificate" (TOC) which conferred on PNCC the authority
to operate and maintain toll facilities, which includes the power to collect toll
fees. PNCC further posits that the toll fees are private funds because they
represent "the consideration given to tollway operators in exchange for costs they
incurred or will incur in constructing, operating and maintaining the tollways."
This contention is devoid of merit.
With the expiration of PNCC’s franchise, the assets and facilities of PNCC were
automatically turned over, by operation of law, to the government at no cost.
Sections 2(e) and 9 of PD 1113 and Section 5 of PD 1894 provide:
Section 2 [of PD 1113]. In consideration of this franchise, the GRANTEE shall:
(e) Turn over the toll facilities and all equipment directly related thereto to the
government upon expiration of the franchise period without cost.
Section 9 [of PD 1113]. For the purposes of this franchise, the Government, shall
turn over to the GRANTEE (PNCC) not later than April 30, 1977 all physical
assets and facilities including all equipment and appurtenances directly related to
the operations of the North and South Toll Expressways: Provided, That, the
extensions of such Expressways shall also be turned over to GRANTEE upon
completion of their construction or of functional sections thereof: Provided,
However, That upon termination of the franchise period, said physical assets and
facilities including improvements thereon, together with equipment and
appurtenances directly related to their operations, shall be turned over to the
Government without any cost or obligation on the part of the latter. (Emphasis
supplied)
Section 5 [of PD No. 1894]. In consideration of this franchise, the GRANTEE
shall:
(a) Construct, operate and maintain at its own expense the Expressways; and
(b) Turn over, without cost, the toll facilities and all equipment, directly related
thereto to the Government upon expiration of the franchise period. (Emphasis
supplied)
The TRB does not have the power to give back to PNCC the toll assets and ASSOCIATE JUSTICE CARPIO:
facilities which were automatically turned over to the Government, by operation
of law, upon the expiration of the franchise of the PNCC on 1 May 2007. x x x My question is very simple x x x Is the income from these assets of the
Whatever power the TRB may have to grant authority to operate a toll facility or national government (interrupted)
to issue a "Tollway Operation Certificate," such power does not obviously DEAN AGABIN:
include the authority to transfer back to PNCC ownership of National
Government assets, like the toll assets and facilities, which have become National Yes, Your Honor.63
Government property upon the expiry of PNCC’s franchise. Such act by the TRB
xxxx
would repeal Section 5 of PD 1894 which automatically vested in the National
Government ownership of PNCC’s toll assets and facilities upon the expiry of ASSOCIATE JUSTICE CARPIO:
PNCC’s franchise. The TRB obviously has no power to repeal a law. Further, PD
1113, as amended by PD 1894, granting the franchise to PNCC, is a later law that So, it’s the government [that] decides whether it goes to the general fund or
must necessarily prevail over PD 1112 creating the TRB. Hence, the provisions another fund. [W]hat is that other fund? Is there another fund where revenues of
of PD 1113, as amended by PD 1894, are controlling. the government go?

The government’s ownership of PNCC's toll assets and facilities inevitably DEAN AGABIN:
results in the government’s ownership of the toll fees and the net income derived
It’s the same fund, Your Honor, except that (interrupted)
from these toll assets and facilities. Thus, the toll fees form part of the National
Government’s General Fund, which includes public moneys of every sort and ASSOCIATE JUSTICE CARPIO:
other resources pertaining to any agency of the government. 61 Even Radstock’s
counsel admits that the toll fees are public funds, to wit: So it goes to the general fund?

ASSOCIATE JUSTICE CARPIO: DEAN AGABIN:

Okay. Now, when the franchise of PNCC expired on May 7, 2007, under the Except that it can be categorized as a private fund in a commercial sense, and it
terms of the franchise under PD 1896, all the assets, toll way assets, equipment, can be categorized as a public fund in a Public Law sense.
etcetera of PNCC became owned by government at no cost, correct, under the
ASSOCIATE JUSTICE CARPIO:
franchise?
Okay. So we agree that, okay, it goes to the general fund. I agree with you, but
DEAN AGABIN:
you are saying it is categorized still as a private funds?
Yes, Your Honor.
DEAN AGABIN:
ASSOCIATE JUSTICE CARPIO:
Yes, Your Honor.
Okay. So this is now owned by the national government. [A]ny income from
ASSOCIATE JUSTICE CARPIO:
these assets of the national government is national government income, correct?
But it’s part of the general fund. Now, if it is part of the general fund, who has
DEAN AGABIN:
the authority to spend that money?
Yes, Your Honor.62
DEAN AGABIN:
xxxx
Well, the National Government itself.
ASSOCIATE JUSTICE CARPIO:
Who in the National Government, the Executive, Judiciary or Legislative?
DEAN AGABIN:
Well, the funds are usually appropriated by the Congress.
ASSOCIATE JUSTICE CARPIO:
x x x you mean to say there are exceptions that money from the general fund can
be spent by the Executive without going t[hrough] Congress, or xxx is [that] the
absolute rule?
DEAN AGABIN:
Well, in so far as the general fund is concerned, that is the absolute rule set aside
by the National Government.
ASSOCIATE JUSTICE CARPIO:
x x x you are saying this is general fund money - the collection from the assets[?]
DEAN AGABIN:
Yes.64 (Emphasis supplied)
Forming part of the General Fund, the toll fees can only be disposed of in
accordance with the fundamental principles governing financial transactions and
operations of any government agency, to wit: (1) no money shall be paid out of
the Treasury except in pursuance of an appropriation made by law, as expressly
mandated by Section 29(1), Article VI of the Constitution; and (2) government
funds or property shall be spent or used solely for public purposes, as expressly
mandated by Section 4(2) of PD 1445 or the Government Auditing Code. 65
Section 29(1), Article VI of the Constitution provides:
Section 29(1). No money shall be paid out of the Treasury except in pursuance
of an appropriation made by law.
The power to appropriate money from the General Funds of the Government
belongs exclusively to the Legislature. Any act in violation of this iron-clad rule
is unconstitutional.
Reinforcing this Constitutional mandate, Sections 84 and 85 of PD 1445 require
that before a government agency can enter into a contract involving the
expenditure of government funds, there must be an appropriation law for such
expenditure, thus:
Section 84. Disbursement of government funds.
1. Revenue funds shall not be paid out of any public treasury or depository except
in pursuance of an appropriation law or other specific statutory authority.
xxxx
Section 85. Appropriation before entering into contract.
1. No contract involving the expenditure of public funds shall be entered into
unless there is an appropriation therefor, the unexpended balance of which, free
of other obligations, is sufficient to cover the proposed expenditure.
xxxx
Section 86 of PD 1445, on the other hand, requires that the proper accounting
official must certify that funds have been appropriated for the purpose. 66 Section
87 of PD 1445 provides that any contract entered into contrary to the
requirements of Sections 85 and 86 shall be void, thus:
Section 87. Void contract and liability of officer. Any contract entered into
contrary to the requirements of the two immediately preceding sections shall be
void, and the officer or officers entering into the contract shall be liable to the
government or other contracting party for any consequent damage to the same
extent as if the transaction had been wholly between private parties. (Emphasis
supplied)
Applying Section 29(1), Article VI of the Constitution, as implanted in Sections
84 and 85 of the Government Auditing Code, a law must first be enacted by
Congress appropriating ₱6.185 billion as compromise money before payment to
Radstock can be made.67 Otherwise, such payment violates a prohibitory law and
thus void under Article 5 of the Civil Code which states that "[a]cts executed
against the provisions of mandatory or prohibitory laws shall be void, except
when the law itself authorizes their validity."
Indisputably, without an appropriation law, PNCC cannot lawfully pay ₱6.185
billion to Radstock. Any contract allowing such payment, like the Compromise
Agreement, "shall be void" as provided in Section 87 of the Government Auditing Significantly, Radstock’s counsel admits that an appropriation law is needed
Code. In Comelec v. Quijano-Padilla,68 this Court ruled: before PNCC can use toll fees to pay Radstock, thus:

Petitioners are justified in refusing to formalize the contract with PHOTOKINA.
Prudence dictated them not to enter into a contract not backed up by sufficient
appropriation and available funds. Definitely, to act otherwise would be a futile
exercise for the contract would inevitably suffer the vice of nullity. In Osmeña
vs. Commission on Audit, this Court held:
ASSOCIATE JUSTICE CARPIO:
Okay, I agree with you. Now, you are saying that money can be paid out of the
general fund only through an appropriation by Congress, correct? That’s what
you are saying.

The Auditing Code of the Philippines (P.D. 1445) further provides that no DEAN AGABIN:
contract involving the expenditure of public funds shall be entered into unless Yes, Your Honor.
there is an appropriation therefor and the proper accounting official of the agency
concerned shall have certified to the officer entering into the obligation that funds ASSOCIATE JUSTICE CARPIO:
have been duly appropriated for the purpose and the amount necessary to cover
I agree with you also. Okay, now, can PNCC xxx use this money to pay Radstock
the proposed contract for the current fiscal year is available for expenditure on
without Congressional approval?
account thereof. Any contract entered into contrary to the foregoing requirements
shall be VOID. DEAN AGABIN:
Clearly then, the contract entered into by the former Mayor Duterte was void Well, I believe that that may not be necessary. Your Honor, because earlier, the
from the very beginning since the agreed cost for the project (₱,368,920.00) was government had already decreed that PNCC should be properly paid for the
way beyond the appropriated amount (₱,419,180.00) as certified by the City reclamation works which it had done. And so (interrupted)
Treasurer. Hence, the contract was properly declared void and unenforceable in
COA's 2nd Indorsement, dated September 4, 1986. The COA declared and we ASSOCIATE JUSTICE CARPIO:
agree, that:
No. I am talking of the funds.
The prohibition contained in Sec. 85 of PD 1445 (Government Auditing Code) is
DEAN AGABIN:
explicit and mandatory. Fund availability is, as it has always been, an
indispensable prerequisite to the execution of any government contract involving And so it is like a foreign obligation.
the expenditure of public funds by all government agencies at all levels. Such
contracts are not to be considered as final or binding unless such a certification ASSOCIATE JUSTICE CARPIO:
as to funds availability is issued (Letter of Instruction No. 767, s. 1978).
Counsel, I'm talking of the general funds, collection from the toll fees. Okay. You
Antecedent of advance appropriation is thus essential to government liability on
said, they go to the general fund. You also said, money from the general fund can
contracts (Zobel vs. City of Manila, 47 Phil. 169). This contract being violative
be spent only if there is an appropriation law by Congress.
of the legal requirements aforequoted, the same contravenes Sec. 85 of PD 1445
and is null and void by virtue of Sec. 87. DEAN AGABIN:
Verily, the contract, as expressly declared by law, is inexistent and void ab initio. Yes, Your Honor.
This is to say that the proposed contract is without force and effect from the very
beginning or from its incipiency, as if it had never been entered into, and hence, There is no law.
cannot be validated either by lapse of time or ratification. (Emphasis supplied) DEAN AGABIN:
Yes, except that, Your Honor, this fund has not yet gone to the general fund. DEAN AGABIN:

ASSOCIATE JUSTICE CARPIO: No, Your Honor.

No. It’s being collected everyday. As of May 7, 2007, national government ASSOCIATE JUSTICE CARPIO:
owned those assets already. All those x x x collections that would have gone to
PNCC are now national government owned. It goes to the general fund. And any Cannot be.
body who uses that without appropriation from Congress commits malversation, DEAN AGABIN:
I tell you.
But I assume that there must be some portion of the collections which properly
DEAN AGABIN: pertain to PNCC.
That is correct, Your Honor, as long as it has already gone into the general fund. ASSOCIATE JUSTICE CARPIO:
ASSOCIATE JUSTICE CARPIO: If there is some portion that xxx may be [for] operating expenses of PNCC. But
Oh, you mean to say that it’s still being held now by the agent, PNCC. It has not that is not
been remitted to the National Government? DEAN AGABIN:
DEAN AGABIN: Even profit, Your Honor.
Well, if PNCC (interrupted) ASSOCIATE JUSTICE CARPIO:
ASSOCIATE JUSTICE CARPIO: Yeah, but that is not the six percent. Out of the six percent, that goes now to
But if (interrupted) PNCC, that’s entirely national government. But the National Government and the
PNCC can agree on service fees for collecting, to pay toll collectors.
DEAN AGABIN:
DEAN AGABIN:
If this is the share that properly belongs to PNCC as a private entity (interrupted)
Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO:
ASSOCIATE JUSTICE CARPIO:
No, no. I am saying that – You just agreed that all those collections now will go
to the National Government forming part of the general fund. If, somehow, PNCC But those are expenses. We are talking of the net income. It goes to the general
is holding this money in the meantime, it holds xxx it in trust, correct? Because fund. And it’s only Congress that can authorize that expenditure. Not even the
you said, it goes to the general fund, National Government. So it must be holding Court of Appeals can give its stamp of approval that it goes to Radstock, correct?
this in trust for the National Government. DEAN AGABIN:
DEAN AGABIN: Yes, Your Honor.69 (Emphasis supplied)
Yes, Your Honor. Without an appropriation law, the use of the toll fees to pay Radstock would
ASSOCIATE JUSTICE CARPIO: constitute malversation of public funds. Even counsel for Radstock expressly
admits that the use of the toll fees to pay Radstock constitutes malversation of
Okay. Can the person holding in trust use it to pay his private debt? public funds, thus:
ASSOCIATE JUSTICE CARPIO:
x x x As of May 7, 2007, [the] national government owned those assets already.
All those x x x collections that would have gone to PNCC are now national
government owned. It goes to the general fund. And any body who uses that
without appropriation from Congress commits malversation, I tell you.
DEAN AGABIN:
That is correct, Your Honor, as long as it has already gone into the general fund.
ASSOCIATE JUSTICE CARPIO:
Oh, you mean to say that it’s still being held now by the agent, PNCC. It has not
been remitted to the National Government?
DEAN AGABIN:
Well, if PNCC (interrupted)
ASSOCIATE JUSTICE CARPIO:
But if (interrupted)
DEAN AGABIN:
If this is the share that properly belongs to PNCC as a private entity (interrupted)
ASSOCIATE JUSTICE CARPIO:
No, no. I am saying that – You just agreed that all those collections now will go
to the National Government forming part of the general fund. If, somehow, PNCC
is holding this money in the meantime, it holds x x x it in trust, correct? Because
you said, it goes to the general fund, National Government. So it must be holding
this in trust for the National Government.
DEAN AGABIN:
Yes, Your Honor.70 (Emphasis supplied)
Indisputably, funds held in trust by PNCC for the National Government
cannot be used by PNCC to pay a private debt of CDCP Mining to Radstock,
otherwise the PNCC Board will be liable for malversation of public funds.
In addition, to pay Radstock ₱6.185 billion violates the fundamental public
policy, expressly articulated in Section 4(2) of the Government Auditing
Code,71 that government funds or property shall be spent or used solely for pubic
purposes, thus:
Section 4. Fundamental Principles. x x x (2) Government funds or property shall
be spent or used solely for public purposes. (Emphasis supplied)
There is no question that the subject of the Compromise Agreement is CDCP
Mining’s private debt to Marubeni, which Marubeni subsequently assigned to
Radstock. Counsel for Radstock admits that Radstock holds a private debt of
CDCP Mining, thus:
ASSOCIATE JUSTICE CARPIO:
So your client is holding a private debt of CDCP Mining, correct?
DEAN AGABIN:
Correct, Your Honor.72 (Emphasis supplied)
CDCP Mining obtained the Marubeni loans when CDCP Mining and PNCC (then
CDCP) were still privately owned and managed corporations. The Government
became the majority stockholder of PNCC only because government financial
institutions converted their loans to PNCC into equity when PNCC failed to pay
the loans. However, CDCP Mining have always remained a majority privately
owned corporation with PNCC owning only 13% of its equity as admitted by
former PNCC Chairman Arthur N. Aguilar and PNCC SVP Finance Miriam M.
Pasetes during the Senate hearings, thus:
SEN. OSMEÑA. x x x – I just wanted to know is CDCP Mining a 100 percent
subsidiary of PNCC?
MR. AGUILAR. Hindi ho. Ah, no.
SEN. OSMEÑA. If they’re not a 100 percent, why would they sign jointly and
severally? I just want to plug the loopholes.
MR. AGUILAR. I think it was – if I may just speculate. It was just common
ownership at that time.
SEN. OSMEÑA. Al right. Now – Also, the ...
MR. AGUILAR. Ah, 13 percent daw, your Honor.
SEN. OSMEÑA. Huh? Section 87 of PD 1445. And since the payment of the ₱6.185 billion pertains to
CDCP Mining’s private debt to Radstock, the Compromise Agreement is also
MR. AGUILAR. Thirteen percent ho. void for being contrary to the fundamental public policy that government funds
SEN. OSMEÑA. What’s 13 percent? or property shall be spent or used solely for public purposes, as provided in
Section 4(2) of the Government Auditing Code.
MR. AGUILAR. We owned ...
C. Radstock is not qualified to own land in the Philippines.
MS. PASETES. Thirteen percent of ...
Radstock is a private corporation incorporated in the British Virgin Islands. Its
SEN. OSMEÑA. PNCC owned ... office address is at Suite 14021 Duddell Street, Central Hongkong. As a foreign
corporation, with unknown owners whose nationalities are also unknown,
MS. PASETES. (Mike off) CDCP ...
Radstock is not qualified to own land in the Philippines pursuant to Section 7, in
SEN. DRILON. Use the microphone, please. relation to Section 3, Article XII of the Constitution. These provisions state:

MS. PASETES. Sorry. Your Honor, the ownership of CDCP of CDCP Basay
Mining ...
SEN. OSMEÑA. No, no, the ownership of CDCP. CDCP Mining, how many
percent of the equity of CDCP Mining was owned by PNCC, formerly CDCP?
MS. PASETES. Thirteen percent.
SEN. OSMEÑA. Thirteen. And as a 13 percent owner, they agreed to sign jointly
and severally?
MS. PASETES. Yes.
SEN. OSMEÑA. One-three?
So poor PNCC and CDCP got taken to the cleaners here. They sign for a 100
percent and they only own 13 percent.
x x x x73 (Emphasis supplied)
PNCC cannot use public funds, like toll fees that indisputably form part of the
General Fund, to pay a private debt of CDCP Mining to Radstock. Such payment
cannot qualify as expenditure for a public purpose. The toll fees are merely held
in trust by PNCC for the National Government, which is the owner of the toll
fees.
Considering that there is no appropriation law passed by Congress for the ₱6.185
billion compromise amount, the Compromise Agreement is void for being
contrary to law, specifically Section 29(1), Article VI of the Constitution and
Section. 3. Lands of the public domain are classified into agricultural, forest or
timber, mineral lands, and national parks. Agricultural lands of the public domain
may be further classified by law according to the uses to which they may be
devoted. Alienable lands of the public domain shall be limited to agricultural
lands. Private corporations or associations may not hold such lands of the public
domain except by lease, for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and not to exceed one hundred thousand
hectares in area. Citizens of the Philippines may lease not more than five hundred
hectares, or acquire not more than twelve hectares thereof by purchase,
homestead, or grant.
Taking into account the requirements of conservation, ecology, and development,
and subject to the requirements of agrarian reform, the Congress shall determine,
by law, the size of lands of the public domain which may be acquired, developed,
held, or leased and the conditions therefor.
xxxx
Section 7. Save in cases of hereditary succession, no private lands shall be
transferred or conveyed except to individuals, corporations, or associations
qualified to acquire or hold lands of the public domain.
The OGCC admits that Radstock cannot own lands in the Philippines. However,
the OGCC claims that Radstock can own the rights to ownership of lands in the
Philippines, thus:
ASSOCIATE JUSTICE CARPIO:
Under the law, a foreigner cannot own land, correct? So, if Radstock makes the assignment, it must own its rights, otherwise, it cannot
assign it, correct?
ATTY. AGRA:
ATTY. AGRA:
Yes, Your Honor.
Pursuant to the compromise agreement, once approved, yes, Your Honors.
ASSOCIATE JUSTICE CARPIO:
ASSOCIATE JUSTICE CARPIO:
Can a foreigner who xxx cannot own land assign the right of ownership to the
land? So, you are saying that Radstock can own the rights to ownership of the land?

ATTY. AGRA: ATTY. AGRA:

Again, Your Honor, at that particular time, it will be PNCC, not through Yes, Your Honors.
Radstock, that chain of events should be, there’s a qualified nominee
(interrupted) ASSOCIATE JUSTICE CARPIO:

ASSOCIATE JUSTICE CARPIO: Yes?

Yes, xxx you said, Radstock will assign the right of ownership to the qualified ATTY. AGRA:
assignee[.] So my question is, can a foreigner own the right to ownership of a The premise, Your Honor, you mentioned a while ago was, if this Court approves
land when it cannot own the land itself? said compromise (interrupted)
ATTY. AGRA: ASSOCIATE JUSTICE CARPIO:
The foreigner cannot own the land, Your Honor. No, no. Whether there is such a compromise agreement - - It’s an academic
ASSOCIATE JUSTICE CARPIO: question I am asking you, can a foreigner assign rights to ownership of a land in
the Philippines?
But you are saying it can own the right of ownership to the land, because you are
saying, the right of ownership will be assigned by Radstock. ATTY. AGRA:

ATTY. AGRA: Under the Compromise Agreement, Your Honors, these rights should be
respected.
The rights over the properties, Your Honors, if there’s a valid assignment made
to a qualified party, then the assignment will be made. ASSOCIATE JUSTICE CARPIO:

ASSOCIATE JUSTICE CARPIO: So, it can?

Who makes the assignment? ATTY. AGRA:

ATTY. AGRA: It can. Your Honor. But again, this right must, cannot be perfected or cannot be,
could not take effect.
It will be Radstock, Your Honor.
ASSOCIATE JUSTICE CARPIO:
ASSOCIATE JUSTICE CARPIO:
But if it cannot - - It’s not perfected, how can it assign? ASSOCIATE JUSTICE CARPIO:

ATTY. AGRA: Okay. May I (interrupted)

Not directly, Your Honors. Again, there must be a qualified nominee assigned by ATTY. AGRA:
Radstock.
Again, Your Honor, if the compromise agreement ended with a statement that
ASSOCIATE JUSTICE CARPIO: Radstock will be the owner of the property (interrupted)

It’s very clear, it’s an indirect way of selling property that is prohibited by law, ASSOCIATE JUSTICE CARPIO:
is it not?
Yeah. Unfortunately, it says, to a qualified assignee.
ATTY. AGRA:
ATTY. AGRA:
Again, Your Honor, know, believe this is a Compromise Agreement. This is a
dacion en pago. Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO: ASSOCIATE JUSTICE CARPIO:

So, dacion en pago is an exception to the constitutional prohibition.
ATTY. AGRA:
No, Your Honor. PNCC, will still hold on to the property, absent a valid
assignment of properties.
ASSOCIATE JUSTICE CARPIO:
But what rights will PNCC have over that land when it has already signed the
compromise? It is just waiting for instruction xxx from Radstock what to do with
it? So, it’s a trustee of somebody, because it does not, it cannot, [it] has no
dominion over it anymore? It’s just holding it for Radstock. So, PNCC becomes
a dummy, at that point, of Radstock, correct?
ATTY. AGRA:
No, Your Honor, I believe it (interrupted)
And at this point, when it is signed and execut[ed] and approved, PNCC has no
dominion over that land anymore. Who has dominion over it?
ATTY. AGRA:
Pending the assignment to a qualified party, Your Honor, PNCC will hold on to
the property.
ASSOCIATE JUSTICE CARPIO:
Hold on, but who x x x can exercise acts of dominion, to sell it, to lease it?
ATTY. AGRA:
Again, Your Honor, without the valid assignment to a qualified nominee, the
compromise agreement in so far as the transfer of these properties will not
become effective. It is subject to such condition. Your Honor. 74 (Emphasis
supplied)

ASSOCIATE JUSTICE CARPIO: There is no dispute that Radstock is disqualified to own lands in the Philippines.
Consequently, Radstock is also disqualified to own the rights to ownership of
Yeah, but it does not own the land, but it still holding the land in favor of the lands in the Philippines. Contrary to the OGCC’s claim, Radstock cannot own
other party to the Compromise Agreement the rights to ownership of any land in the Philippines because Radstock cannot
lawfully own the land itself. Otherwise, there will be a blatant circumvention of
ATTY. AGRA: the Constitution, which prohibits a foreign private corporation from owning land
Pursuant to the compromise agreement, that will happen. in the Philippines. In addition, Radstock cannot transfer the rights to ownership
of land in the Philippines if it cannot own the land itself. It is basic that an assignor
or seller cannot assign or sell something he does not own at the time the
ownership, or the rights to the ownership, are to be transferred to the assignee or
buyer.75
The third party assignee under the Compromise Agreement who will be
designated by Radstock can only acquire rights duplicating those which its
assignor (Radstock) is entitled by law to exercise. 76 Thus, the assignee can
acquire ownership of the land only if its assignor, Radstock, owns the land.
Clearly, the assignment by PNCC of the real properties to a nominee to be
designated by Radstock is a circumvention of the Constitutional prohibition
against a private foreign corporation owning lands in the Philippines. Such
circumvention renders the Compromise Agreement void.
D. Public bidding is required for
the disposal of government properties.
Under Section 79 of the Government Auditing Code, 77 the disposition
of government lands to private parties requires public bidding. 78 COA Circular
No. 89-926, issued on 27 January 1989, sets forth the guidelines on the disposal
of property and other assets of the government. Part V of the COA Circular
provides:
V. MODE OF DISPOSAL/DIVESTMENT: -
This Commission recognizes the following modes of disposal/divestment of
assets and property of national government agencies, local government units and
government-owned or controlled corporations and their subsidiaries, aside from
other such modes as may be provided for by law.
1. Public Auction
Conformably to existing state policy, the divestment or disposal of government
property as contemplated herein shall be undertaken primarily thru public
auction. Such mode of divestment or disposal shall observe and adhere to
established mechanics and procedures in public bidding, viz:
a. adequate publicity and notification so as to attract the greatest number of
interested parties; (vide, Sec. 79, P.D. 1445)
b. sufficient time frame between publication and date of auction;
c. opportunity afforded to interested parties to inspect the property or assets to be
disposed of;
d. confidentiality of sealed proposals;
e. bond and other prequalification requirements to guarantee performance; and
f. fair evaluation of tenders and proper notification of award.
It is understood that the Government reserves the right to reject any or all of the
tenders. (Emphasis supplied)
Under the Compromise Agreement, PNCC shall dispose of substantial parcels of
land, by way of dacion en pago, in favor of Radstock. Citing Uy v.
Sandiganbayan,79 PNCC argues that a dacion en pago is an exception to the
requirement of a public bidding.
PNCC’s reliance on Uy is misplaced. There is nothing in Uy declaring that public
bidding is dispensed with in a dacion en pago transaction. The Court explained
the transaction in Uy as follows:
We do not see any infirmity in either the MOA or the SSA executed between
PIEDRAS and respondent banks. By virtue of its shareholdings in OPMC,
PIEDRAS was entitled to subscribe to 3,749,906,250 class "A" and
2,499,937,500 class "B" OPMC shares. Admittedly, it was financially sound for
PIEDRAS to exercise its pre-emptive rights as an existing shareholder of OPMC
lest its proportionate shareholdings be diluted to its detriment. However,
PIEDRAS lacked the necessary funds to pay for the additional subscription.
Thus, it resorted to contract loans from respondent banks to finance the payment
of its additional subscription. The mode of payment agreed upon by the parties
was that the payment would be made in the form of part of the shares subscribed
to by PIEDRAS. The OPMC shares therefore were agreed upon by the parties to
be equivalent payment for the amount advanced by respondent banks. We see the
wisdom in the conditions of the loan transaction. In order to save PIEDRAS
and/or the government from the trouble of selling the shares in order to raise
funds to pay off the loans, an easier and more direct way was devised in the form
of the dacion en pago agreements.
Moreover, we agree with the Sandiganbayan that neither PIEDRAS nor the
government sustained any loss in these transactions. In fact, after deducting the
shares to be given to respondent banks as payment for the shares, PIEDRAS stood
to gain about 1,540,781,554 class "A" and 710,550,000 class "B" OPMC shares
virtually for free. Indeed, the question that must be asked is whether or not
PIEDRAS, in the exercise of its pre-emptive rights, would have been able to
acquire any of these shares at all if it did not enter into the financing agreements
with the respondent banks.80
Suffice it to state that in Uy, neither PIEDRAS81 nor the government suffered any
loss in the dacion en pago transactions, unlike here where the government stands
to lose at least ₱6.185 billion worth of assets.
Besides, a dacion en pago is in essence a form of sale, which basically involves
a disposition of a property. In Filinvest Credit Corp. v. Philippine Acetylene, Co.,
Inc.,82 the Court defined dacion en pago in this wise:
Dacion en pago, according to Manresa, is the transmission of the ownership of a
thing by the debtor to the creditor as an accepted equivalent of the performance
of obligation. In dacion en pago, as a special mode of payment, the debtor offers
another thing to the creditor who accepts it as equivalent of payment of an
outstanding debt. The undertaking really partakes in one sense of the nature of
sale, that is, the creditor is really buying the thing or property of the debtor,
payment for which is to be charged against the debtor's debt.As such, the essential
elements of a contract of sale, namely, consent, object certain, and cause or
consideration must be present. In its modern concept, what actually takes place
in dacion en pago is an objective novation of the obligation where the thing
offered as an accepted equivalent of the performance of an obligation is
considered as the object of the contract of sale, while the debt is considered as
the purchase price. In any case, common consent is an essential prerequisite, be
it sale or innovation to have the effect of totally extinguishing the debt or
obligation.83 (Emphasis supplied)
E. PNCC must follow rules on preference of credit.
Radstock is only one of the creditors of PNCC. Asiavest is PNCC’s judgment
creditor. In its Board Resolution No. BD-092-2000, PNCC admitted not only its
debt to Marubeni but also its debt to the National Government 84 in the amount
of ₱36 billion.85 During the Senate hearings, PNCC admitted that it owed the
Government ₱36 billion, thus:
SEN. OSMEÑA. All right. Now, second question is, the management of PNCC
also recognize the obligation to the national government of 36 billion. It is part
of the board resolution.
MS. OGAN. Yes, sir, it is part of the October 20 board resolution.
SEN. OSMEÑA. All right. So if you owe the national government 36 billion and
you owe Marubeni 10 billion, you know, I would just declare bankruptcy and let
an orderly disposition of assets be done. What happened in this case to the claim,
the 36 billion claim of the national government? How was that disposed of by the
PNCC? Mas malaki ang utang ninyo sa national government, 36 billion. Ang
gagawin ninyo, babayaran lahat ang utang ninyo sa Marubeni without any assets
left to satisfy your obligations to the national government. There should have
been, at least, a pari passu payment of all your obligations, 'di ba?
MS. PASETES. Mr. Chairman...
SEN. OSMEÑA. Yes.
MS. PASETES. PNCC still carries in its books an equity account called equity
adjustments arising from transfer of obligations to national government - - 5.4
billion - - in addition to shares held by government amounting to 1.2 billion.
SEN. OSMEÑA. What is the 36 billion?
THE CHAIRMAN. Ms. Pasetes...
SEN. OSMEÑA. Wait, wait, wait.
THE CHAIRMAN. Baka ampaw yun eh.
SEN. OSMEÑA. Teka muna. What is the 36 billion that appear in the resolution
of the board in September 2000 (sic)? This is the same resolution that recognizes,
acknowledges and confirms PNCC's obligations to Marubeni. And subparagraph
(a) says "Government of the Philippines, in the amount of 36,023,784,000 and
change. And then (b) Marubeni Corporation in the amount of 10,743,000,000.
So, therefore, in the same resolution, you acknowledged that had something like
P46.7 billion in obligations. Why did PNCC settle the 10 billion and did not
protect the national government's 36 billion? And then, number two, why is it
now in your books, the 36 billion is now down to five? If you use that ratio, then
Marubeni should be down to one.
MS. PASETES. Sir, the amount of 36 billion is principal plus interest and
penalties.
SEN. OSMEÑA. And what about Marubeni? Is that just principal only?
MS. PASETES. Principal and interest.
SEN. OSMEÑA. So, I mean, you know, it's equal treatment. Ten point seven
billion is principal plus penalties plus interest, hindi ba?
MS. PASETES. Yes, sir. Yes, Your Honor.
SEN. OSMEÑA. All right. So now, what you are saying is that you gonna pay
Marubeni 6 billion and change and the national government is only recognizing
5 billion. I don't think that's protecting the interest of the national government at
all.86
In giving priority and preference to Radstock, the Compromise Agreement is
certainly in fraud of PNCC’s other creditors, including the National Government,
and violates the provisions of the Civil Code on concurrence and preference of
credits.
This Court has held that while the Corporation Code allows the transfer of all or
substantially all of the assets of a corporation, the transfer should not prejudice
the creditors of the assignor corporation.87 Assuming that PNCC may transfer all
or substantially all its assets, to allow PNCC to do so without the consent of its
creditors or without requiring Radstock to assume PNCC’s debts will defraud the
other PNCC creditors88 since the assignment will place PNCC’s assets beyond
the reach of its other creditors.89 As this Court held in Caltex (Phil.), Inc. v.
PNOC Shipping and Transport Corporation:90
While the Corporation Code allows the transfer of all or substantially all the
properties and assets of a corporation, the transfer should not prejudice the
creditors of the assignor. The only way the transfer can proceed without prejudice
to the creditors is to hold the assignee liable for the obligations of the assignor.
The acquisition by the assignee of all or substantially all of the assets of the
assignor necessarily includes the assumption of the assignor's liabilities, unless
the creditors who did not consent to the transfer choose to rescind the transfer on
the ground of fraud. To allow an assignor to transfer all its business, properties
and assets without the consent of its creditors and without requiring the assignee
to assume the assignor's obligations will defraud the creditors. The assignment
will place the assignor's assets beyond the reach of its creditors. (Emphasis
supplied)
Also, the law, specifically Article 138791 of the Civil Code, presumes that there
is fraud of creditors when property is alienated by the debtor after judgment has
been rendered against him, thus:
Alienations by onerous title are also presumed fraudulent when made by persons
against whom some judgment has been rendered in any instance or some writ of
attachment has been issued. The decision or attachment need not refer to the
property alienated, and need not have been obtained by the party seeking
rescission. (Emphasis supplied)
As stated earlier, Asiavest is a judgment creditor of PNCC in G.R. No. 110263
and a court has already issued a writ of execution in its favor. Thus, when PNCC
entered into the Compromise Agreement conveying several prime lots in favor
of Radstock, by way of dacion en pago, there is a legal presumption that such
conveyance is fraudulent under Article 1387 of the Civil Code. 92 This
presumption is strengthened by the fact that the conveyance has virtually left
PNCC’s other creditors, including the biggest creditor – the National
Government - with no other asset to garnish or levy.
Notably, the presumption of fraud or intention to defraud creditors is not just
limited to the two instances set forth in the first and second paragraphs of Article
1387 of the Civil Code. Under the third paragraph of the same article, "the design
to defraud creditors may be proved in any other manner recognized by the law of
evidence." In Oria v. Mcmicking,93 this Court considered the following instances
as badges of fraud:
1. The fact that the consideration of the conveyance is fictitious or is inadequate.
2. A transfer made by a debtor after suit has begun and while it is pending against
him.
3. A sale upon credit by an insolvent debtor.
4. Evidence of large indebtedness or complete insolvency.
5. The transfer of all or nearly all of his property by a debtor, especially when he
is insolvent or greatly embarrassed financially.
6. The fact that the transfer is made between father and son, when there are
present other of the above circumstances.
7. The failure of the vendee to take exclusive possession of all the property.
(Emphasis supplied)
Among the circumstances indicating fraud is a transfer of all or nearly all of the
debtor’s assets, especially when the debtor is greatly embarrassed financially.
Accordingly, neither a declaration of insolvency nor the institution of insolvency
proceedings is a condition sine qua non for a transfer of all or nearly all of a
debtor’s assets to be regarded in fraud of creditors. It is sufficient that a debtor is
greatly embarrassed financially.
In this case, PNCC’s huge negative net worth - at least ₱6 billion as expressly
admitted by PNCC’s counsel during the oral arguments, or ₱14 billion based on
the 2006 COA Audit Report - necessarily translates to an extremely embarrassing
financial situation. With its huge negative net worth arising from unpaid billions
of pesos in debt, PNCC cannot claim that it is financially stable. As a
consequence, the Compromise Agreement stipulating a transfer in favor of
Radstock of substantially all of PNCC’s assets constitutes fraud. To legitimize
the Compromise Agreement just because there is still no judicial declaration of
PNCC’s insolvency will work fraud on PNCC’s other creditors, the biggest
creditor of which is the National Government. To insist that PNCC is very much
liquid, given its admitted huge negative net worth, is nothing but denial of the
truth. The toll fees that PNCC collects belong to the National Government.
Obviously, PNCC cannot claim it is liquid based on its collection of such toll
fees, because PNCC merely holds such toll fees in trust for the National
Government. PNCC does not own the toll fees, and such toll fees do not form
part of PNCC’s assets.
PNCC owes the National Government ₱36 billion, a substantial part of which
constitutes taxes and fees, thus:
SEN. ROXAS. Thank you, Mr. Chairman.
Mr. PNCC Chairman, could you describe for us the composition of your debt of
about five billion – there are in thousands, so this looks like five and half billion.
Current portion of long-term debt, about five billion. What is this made of?
MS. PASETES. The five billion is composed of what is owed the Bureau of
Treasury and the Toll Regulatory Board for concession fees that’s almost
three billion and another 2.4 billion owed Philippine National Bank.
SEN. ROXAS. So, how much is the Bureau of Treasury?
MS. PASETES. Three billion.
SEN. ROXAS. Three – Why do you owe the Bureau of Treasury three billion?
MS. PASETES. That represents the concession fees due Toll Regulatory Board
principal plus interest, Your Honor.
x x x x94 (Emphasis supplied)
In addition, PNCC’s 2006 Audit Report by COA states as follows:
TAX MATTERS
The Company was assessed by the Bureau of Internal Revenue (BIR) of its
deficiencies in various taxes. However, no provision for any liability has been
made yet in the Company’s financial statements.
• 1980 deficiency income tax, deficiency contractor’s tax and deficiency
documentary stamp tax assessments by the BIR totaling ₱212.523 Million.
xxxx
• Deficiency business tax of ₱64 Million due the Belgian Consortium, PNCC’s
partner in its LRT Project.
• 1992 deficiency income tax, deficiency value-added tax and deficiency
expanded withholding tax of ₱1.04 Billion which was reduced to ₱709 Million
after the Company’s written protest.
xxxx
• 2002 deficiency internal revenue taxes totaling ₱72.916 Million.
x x x x.95 (Emphasis supplied)
Clearly, PNCC owes the National Government substantial taxes and fees
amounting to billions of pesos.
The ₱36 billion debt to the National Government was acknowledged by the
PNCC Board in the same board resolution that recognized the Marubeni loans.
Since PNCC is clearly insolvent with a huge negative net worth, the government
enjoys preference over Radstock in the satisfaction of PNCC’s liability arising
from taxes and duties, pursuant to the provisions of the Civil Code on
concurrence and preference of credits. Articles 2241,96 224297 and 224398 of the
Civil Code expressly mandate that taxes and fees due the National Government
"shall be preferred" and "shall first be satisfied" over claims like those arising
from the Marubeni loans which "shall enjoy no preference" under Article 2244.99
However, in flagrant violation of the Civil Code, the PNCC Board favored
Radstock over the National Government in the order of credits. This would strip
PNCC of its assets leaving virtually nothing for the National Government. This
action of the PNCC Board is manifestly and grossly disadvantageous to the
National Government and amounts to fraud.
During the Senate hearings, Senator Osmeña pointed out that in the Board
Resolution of 20 October 2000, PNCC acknowledged its obligations to the
National Government amounting to ₱36,023,784,000 and to Marubeni
amounting to ₱10,743,000,000. Yet, Senator Osmeña noted that in the PNCC
books at the time of the hearing, the ₱36 billion obligation to the National
Government was reduced to ₱5 billion. PNCC’s Miriam M. Pasetes could not
properly explain this discrepancy, except by stating that the ₱36 billion includes
the principal plus interest and penalties, thus:
SEN. OSMEÑA. Teka muna. What is the 36 billion that appear in the resolution
of the board in September 2000 (sic)? This is the same resolution that recognizes,
acknowledges and confirms PNCC's obligations to Marubeni. And subparagraph
(a) says "Government of the Philippines, in the amount of 36,023,784,000 and
change. And then (b) Marubeni Corporation in the amount of 10,743,000,000.
So, therefore, in the same resolution, you acknowledged that had something like
P46.7 billion in obligations. Why did PNCC settle the 10 billion and did not
protect the national government's 36 billion? And then, number two, why is it
now in your books, the 36 billion is now down to five? If you use that ratio, then
Marubeni should be down to one.
MS. PASETES. Sir, the amount of 36 billion is principal plus interest and
penalties.
SEN. OSMEÑA. And what about Marubeni? Is that just principal only?
MS. PASETES. Principal and interest.
SEN. OSMEÑA. So, I mean, you know, it's equal treatment. Ten point seven
billion is principal plus penalties plus interest, hindi ba?
MS. PASETES. Yes, sir. Yes, Your Honor.
SEN. OSMEÑA. All right. So now, what you are saying is that you gonna pay
Marubeni 6 billion and change and the national government is only recognizing
5 billion. I don't think that's protecting the interest of the national government at
all.100
PNCC failed to explain satisfactorily why in its books the obligation to the
National Government was reduced when no payment to the National Government
appeared to have been made. PNCC failed to justify why it made it appear that
the obligation to the National Government was less than the obligation to
Marubeni. It is another obvious ploy to justify the preferential treatment given to
Radstock to the great prejudice of the National Government.
VI.
Supreme Court is Not Legitimizer of Violations of Laws
During the oral arguments, counsels for Radstock and PNCC admitted that the
Compromise Agreement violates the Constitution and existing laws. However,
they rely on this Court to approve the Compromise Agreement to shield their
clients from possible criminal acts arising from violation of the Constitution and
existing laws. In their view, once this Court approves the Compromise
Agreement, their clients are home free from prosecution, and can enjoy the
₱6.185 billion loot. The following exchanges during the oral arguments reveal
this view:
ASSOCIATE JUSTICE CARPIO:
If there is no agreement, they better remit all of that to the National Government.
They cannot just hold that. They are holding that [in] trust, as you said, x x x you
agree, for the National Government.
DEAN AGABIN:
Yes, that’s why, they are asking the Honorable Court to approve the compromise
agreement.
ASSOCIATE JUSTICE CARPIO:
We cannot approve that if the power to authorize the expenditure [belongs]
to Congress. How can we usurp x x x the power of Congress to authorize that
expenditure[?] It’s only Congress that can authorize the expenditure of
funds from the general funds.
DEAN AGABIN:
But, Your Honor, if the Honorable Court would approve of this compromise
agreement, I believe that this would be binding on Congress.
ASSOCIATE JUSTICE CARPIO:
Ignore the Constitutional provision that money shall be paid out of the
National Treasury only pursuant to an appropriation by law. You want us
to ignore that[?]
DEAN AGABIN:
Not really, Your Honor, but I suppose that Congress would have no choice,
because this is a final judgment of the Honorable Court. 101
In sum, the acts of the PNCC Board in (1) issuing Board Resolution Nos. BD-
092-2000 and BD-099-2000 expressly admitting liability for the Marubeni loans,
and (2) entering into the Compromise Agreement, constitute evident bad faith
and gross inexcusable negligence, amounting to fraud, in the management of
PNCC’s affairs. Being public officers, the government nominees in the PNCC
Board must answer not only to PNCC and its stockholders, but also to the Filipino
people for grossly mishandling PNCC’s finances.

xxxx Under Article 1409 of the Civil Code, the Compromise Agreement is "inexistent
and void from the beginning," and "cannot be ratified," thus:
ASSOCIATE JUSTICE CARPIO:
Art. 1409. The following contracts are inexistent and void from the beginning:
So, if Radstock makes the assignment, it must own its rights, otherwise, it cannot
assign it, correct? (1) Those whose cause, object or purpose is contrary to law, morals, good
customs, public order or public policy;
ATTY. AGRA:
xxx
Pursuant to the compromise agreement, once approved, yes, Your Honors.
(7) Those expressly prohibited or declared void by law.
ASSOCIATE JUSTICE CARPIO:
These contracts cannot be ratified. x x x. (Emphasis supplied)
So, you are saying that Radstock can own the rights to ownership of the land?
The Compromise Agreement is indisputably contrary to the Constitution, existing
ATTY. AGRA: laws and public policy. Under Article 1409, the Compromise Agreement is
expressly declared void and "cannot be ratified." No court, not even this Court,
Yes, Your Honors.
can ratify or approve the Compromise Agreement. This Court must perform its
ASSOCIATE JUSTICE CARPIO: duty to defend and uphold the Constitution, existing laws, and fundamental
public policy. This Court must not shirk in declaring the Compromise Agreement
Yes? inexistent and void ab initio.
ATTY. AGRA: WHEREFORE, we GRANT the petition in G.R. No. 180428. We SET ASIDE
the Decision dated 25 January 2007 and the Resolutions dated 12 June 2007 and
The premise, Your Honor, you mentioned a while ago was, if this Court approves
5 November 2007 of the Court of Appeals. We DECLARE (1) PNCC Board
said compromise (interrupted).102 (Emphasis supplied)
Resolution Nos. BD-092-2000 and BD-099-2000 admitting liability for the
This Court is not, and should never be, a rubber stamp for litigants hankering to Marubeni loans VOID AB INITIO for causing undue injury to the Government
pocket public funds for their selfish private gain. This Court is the ultimate and giving unwarranted benefits to a private party, constituting a corrupt practice
guardian of the public interest, the last bulwark against those who seek to plunder and unlawful act under Section 3(e) of the Anti-Graft and Corrupt Practices Act,
the public coffers. This Court cannot, and must never, bring itself down to the and (2) the Compromise Agreement between the Philippine National
level of legitimizer of violations of the Constitution, existing laws or public Construction Corporation and Radstock Securities Limited INEXISTENT AND
policy. VOID AB INITIO for being contrary to Section 29(1), Article VI and Sections 3
and 7, Article XII of the Constitution; Section 20(1), Chapter IV, Subtitle B, Title
Conclusion I, Book V of the Administrative Code of 1987; Sections 4(2), 79, 84(1), and 85
of the Government Auditing Code; and Articles 2241, 2242, 2243 and 2244 of
the Civil Code.

We GRANT the intervention of Asiavest Merchant Bankers Berhad in G.R. No.

178158 but DECLARE that Strategic Alliance Development Corporation has no
legal standing to sue.

SO ORDERED.

Notes.—There was no error nor grave abuse of discretion committed by the

Sandiganbayan in ruling that the execution of the Compromise Agreement was
tainted with fraud on the part of the private parties and in connivance with some
PCGG officials—fraud was perpetuated upon the Republic as the assessed or
market values of the properties offered for settlement had been concealed from
the reviewing authorities such as the PCGG En Banc and even the President of
the Republic. (Argana vs. Republic, 443 SCRA 184 [2004])

The right to travel does not mean the right to choose any vehicle in traversing a
toll way. (Mirasol vs. Department of Public Works and Highways, 490 SCRA
318 [2006])

Cases of unexplained wealth are similar to cases of bribery or dereliction of duty

and no reason why these two classes of cases cannot be excepted from the rule
making bank deposits confidential—and, undoubtedly, cases for plunder involve
unexplained wealth. (Ejercito vs. Sandiganbayan [Special Division], 509 SCRA
190 [2006]) Strategic Alliance Development Corporation vs. Radstock Securities
Limited, 607 SCRA 413, G.R. No. 178158 December 4, 2009
G.R. No. 130656. June 29, 2000.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARMANDO
REANZARES ** also known as ARMANDO RIANZARES, accused-
appellant.
Alibi; Requisites.—These attempts of the accused to discredit Gregorio
obviously cannot hold ground. Neither can they bolster his alibi. For alibi to be
believed it must be shown that (a) the accused was in another place at the time of
the commission of the offense, and (b) it was physically impossible for him to be
at the crime scene.
Criminal Law; Highway Robbery; Conviction for highway robbery requires
proof that several accused were organized for the purpose of committing it
indiscriminately.—Indeed the accused is guilty. But that the accused was guilty
of Highway Robbery with Homicide under PD 532 was erroneous. As held in a
number of cases, conviction for highway robbery requires proof that several
accused were organized for the purpose of committing it indiscriminately. There
is no proof in the instant case that the accused and his cohorts organized
themselves to commit highway robbery. Neither is there proof that they attempted
to commit similar robberies to show the “indiscriminate” perpetration thereof. On
the other hand, what the prosecution established was only a single act of robbery
against the particular persons of the Tactacan spouses. Clearly, this single act of
depredation is not what is contemplated under PD 532 as its objective is to deter
and punish lawless elements who commit acts of depredation upon persons and
properties of innocent and defenseless inhabitants who travel from one place to
another thereby disturbing the peace and tranquility of the nation and stunting the
economic and social progress of the people.
Criminal Procedure; Informations; In the interpretation of an information, what
controls is the description of the offense charged and not merely its
designation.—The accused should be held liable for the special complex crime
of robbery with homicide under Art.294 of the Revised Penal Code as amended
by RA 7659 as the allegations in the Information are enough to convict him
therefor. In the interpretation of an information, what controls is the description
of the offense charged and not merely its designation.
Witnesses; Damages; Judicial Notice; An ordinary witness cannot establish the
value of jewelry and the trial court can only take judicial notice of the value of
goods which is a matter of public knowledge or is capable of unquestionable
demonstration.—The amount of P2,500.00 as reimbursement for the Seiko
wristwatch taken from Gregorio Tactacan must be deleted in the absence of
receipts or any other competent evidence aside from the self-serving valuation
made by the prosecution. An ordinary witness cannot establish the value of
jewelry and the trial court can only take judicial notice of the value of goods
which is a matter of public knowledge or is capable of unquestionable
demonstration. The value of jewelry therefore does not fall under either category
of which the court can take judicial notice. People vs. Reanzares, 334 SCRA 624,
G.R. No. 130656 June 29, 2000
This case is with us on automatic review of the 26 May 1997 Decision 1 of the
Regional Trial Court of Tanauan, Batangas, finding accused ARMANDO
REANZARES also known as "Armando Rianzares" guilty of Highway Robbery
with Homicide under PD 5322 and sentencing him to the extreme penalty of
death. He was also ordered to pay the heirs of his victim Lilia
Tactacan P172,000.00 for funeral, burial and related expenses, P50,000.00 as
indemnity for death, P1,000.00 for the cash taken from her bag, and to reimburse
Gregorio Tactacan P2,500.00 for the Seiko wristwatch taken from him.
The facts, except as to the identity of accused Armando Reanzares, are
undisputed. Spouses Gregorio Tactacan and Lilia Tactacan owned a sari-
sari store in San Miguel, Sto. Tomas, Batangas. On 10 May 1994 at around 8:10
in the evening, the Tactacan spouses closed their store and left for home in
Barangay San Roque, Sto. Tomas, Batangas on board their passenger-type
jeepney. As Gregorio was maneuvering his jeep backwards from where it was
parked two (2) unidentified men suddenly climbed on board. His wife Lilia
immediately asked them where they were going and they answered that they were
bound for the town proper. When Lilia informed them that they were not going
to pass through the town proper, the two (2) said they would just get off at the
nearest intersection. After negotiating some 500 meters, one of the hitchhikers
pointed a .38 caliber revolver at Gregorio while the other poked a balisong at
Lilia's neck and ordered Gregorio to stop the vehicle. Two (2) other persons, one
of whom was later identified as accused Armando Reanzares, were seen waiting
for them at a distance. As soon as the vehicle stopped, the accused and his
companion approached the vehicle. Gregorio was then pulled from the driver's
seat to the back of the vehicle. They gagged and blindfolded him and tied his
hands and feet. They also took his Seiko wristwatch worth P2,500.00. The
accused then drove the vehicle after being told by one of them, "Sige i-drive mo
na."3
Gregorio did not know where they were headed for as he was blindfolded. After
several minutes, he felt the vehicle making a u-turn and stopped after ten (10)
minutes. During the entire trip, his wife kept uttering, "Maawa kayo sa
amin, marami kaming anak, kunin nyo na lahat ng gusto ninyo." Immediately
after the last time she uttered these words a commotion ensued and Lilia was
heard saying, "aray!" Gregorio heard her but could not do anything. After three
(3) minutes the commotion ceased. Then he heard someone tell him, "Huwag
kang kikilos diyan, ha," and left. Gregorio then untied his hands and feet,
removed his gag and blindfold and jumped out of the vehicle. The culprits were
all gone, including his wife. He ran to San Roque East shouting for help. 4
When Gregorio returned to the crime scene, the jeepney was still there. He went
to the drivers seat. There he saw his wife lying on the floor of the jeepney with
blood splattered all over her body. Her bag containing P1,200.00 was missing.
He brought her immediately to the C. P. Reyes Hospital where she was
pronounced dead on arrival.5
At the time of her death Lilia Tactacan was forty-eight (48) years old. According
to Gregorio, he was deeply depressed by her death; that he incurred funeral, burial
and other related expenses, and that his wife was earning P3,430.00 a month as a
teacher.6
Dr. Lily D. Nunes, Medical Health Officer of Sto. Tomas, Batangas, conducted
a post-mortem examination on the body of the victim. Her medieport disclosed
that the victim sustained eight (8) stab wounds on the chest and abdominal region
of the body. She testified that a sharp pointed object like a long knife could have
caused those wounds which must have been inflicted by more than one (1)
person, and that all those wounds except the non-penetrating one caused the
immediate death of the victim.7
Subsequently, two (2) Informations were filed against accused Armando
Reanzares and three (3) John Does in relation to the incident. The first was for
violation of PD 532 otherwise known as the Anti-Piracy and Anti-Highway
Robbery Law of 1974 for allegedly conspiring, with intent to gain and armed with
bladed weapons and a .38 caliber revolver, to rob and carry away one (1) Seiko
wristwatch owned by Gregorio Tactacan and P1,000.00 cash of Lilia Tactacan,
and on the occasion thereof, killed her. The second was for violation of RA
6539, An Act Preventing and Penalizing Carnapping, for taking away by means
of violence and intimidation of persons one (1) passenger-type jeepney with Plate
No. DBP 235 owned and driven by Gregorio Tactacan and valued
at P110,000.00. Only the accused Armando Reanzares was arrested. The other
three (3) have remained unidentified and at large.
The accused testified in his defense and claimed that he could not have
perpetrated the crimes imputed to him with three (3) others as he was in Barangay
Tagnipa, Garchitorena, Camarines Sur, for the baptism of his daughter Jessica
when the incident happened.8 His father, Jose Reanzares, corroborated his story.
Jose claimed that the accused borrowed P500.00 from him for the latter's trip to
Bicol although he could not say that he actually saw the accused leave for his
intended destination.9 To bolster the alibi of the accused, his brother Romeo
Reanzares also took the witness stand and alleged that he saw the accused off on
9 May 1994, the day before the incident. Romeo maintained that he accompanied
the accused to the bus stop that day and even helped the latter carry his things to
the bus. He however could not categorically state where and when the accused
alighted or that he in fact reached Bicol.10
On 26 May 1997 the trial court found the prosecutions evidence credible and
ruled that the alibi of the accused could not prevail over his positive identification
by complaining witness Gregorio Tactacan. The court a quo declared him guilty
of Highway Robbery with Homicide under PD 532 and sentenced him to death.
It further ordered him to pay the heirs of Lilia Tactacan P50,000.00 as indemnity
for death, P172,000.00 for funeral, burial and related expenses, and P1,000.00 for
the cash taken from her bag. The accused was also ordered to reimburse Gregorio
Tactacan P2,500.00 for the Seiko wristwatch taken from him.11 But the trial court
exonerated the accused from the charge of carnapping under RA 6539 for
insufficiency of evidence.
The accused insists before us that his conviction for Highway Robbery with
Homicide under PD 532 is erroneous as his guilt was not proved beyond
reasonable doubt. He claims that the testimony of private complainant Gregorio
Tactacan, who implicated him as one of the perpetrators of the crime, is
incredible. He maintains that Gregorio failed to identify him because when the
latter was questioned he stated that he did not know any of the culprits. He also
claims that in the publication of Hotline by Tony Calvento in People's
Tonight, Gregorio even asked the readers to help him identify the malefactors.
The trial court observed that Gregorio Tactacan testified in a categorical,
straightforward, spontaneous and frank manner, and was consistent on cross-
examination. Indeed, Gregorio might not have immediately revealed the name of
accused Armando Reanzares to the police authorities when he was first
investigated but the delay was not an indication of a fabricated charge and should
not undermine his credibility considering that he satisfactorily explained his
reasons therefor. According to him, he did not immediately tell the police about
the accused because he feared for the safety of his family as his neighbors told
him that they saw some people lurking around his house on the day of the
incident. Moreover, he was advised not to mention any names until after the
burial of his wife. No ill motive could be attributed to him for implicating the
accused. If at all, the fact that his wife died by reason of the incident even lends
credence to his testimony since his natural interest in securing the conviction of
the guilty would deter him from implicating persons other than the real culprits,
otherwise, those responsible for the perpetration of the crime would escape
prosecution.
To further undermine the credibility of Gregorio, the accused underscores
Gregorio's refusal to be subjected to a lie detector test. We cannot subscribe to
this contention as the procedure of ascertaining the truth by means of a lie
detector test has never been accepted in our jurisdiction; thus, any findings based
thereon cannot be considered conclusive.
Finally, the accused chides Gregorio for supposedly suppressing a very material
piece of evidence, i.e., the latter failed to present as witnesses a certain Renato
and his wife who allegedly saw the holduppers running away from the crime
scene. But this is only a disputable presumption under Sec. 3, par. (e), Rule 131,
of the Rules of Court on evidence, which does not apply in the present case as
the evidence allegedly omitted is equally accessible and available to the defense.
These attempts of the accused to discredit Gregorio obviously cannot hold
ground. Neither can they bolster his alibi. For alibi to be believed it must be
shown that (a) the accused was in another place at the time of the commission of
the offense, and (b) it was physically impossible for him to be at the crime
scene.12
In this case, the accused claims to have left for Bicol the day before the incident.
To prove this, he presented his father and brother but their testimonies did not
meet the requisite quantum to establish his alibi. While his father testified that
the accused borrowed money from him for his fare to Bicol for the baptism of a
daughter, he could not say whether the accused actually went to Bicol. As regards
the claim of Romeo, brother of the accused, that he accompanied the accused to
the bus stop on 9 May 1994 and even helped him with his things, seeing the
accused off is not the same as seeing him actually get off at his destination. Given
the circumstances of this case, it is possible for the accused to have alighted from
the bus before reaching Bicol, perpetrated the crime in the evening of 10 May
2000, proceeded to Bicol and arrived there on 12 May 2000 for his daughters
baptism.
Thus the trial court was correct in disregarding the alibi of the accused not only
because he was positively identified by Gregorio Tactacan but also because it
was not shown that it was physically impossible for him to be at the crime scene
on the date and time of the incident.
Indeed the accused is guilty. But that the accused was guilty of Highway Robbery
with Homicide under PD 532 was erroneous. As held in a number of cases,
conviction for highway robbery requires proof that several accused were
organized for the purpose of committing it indiscriminately. 13 There is no proof
in the instant case that the accused and his cohorts organized themselves to
commit highway robbery. Neither is there proof that they attempted to commit
similar robberies to show the "indiscriminate" perpetration thereof. On the other
hand, what the prosecution established was only a single act of robbery against
the particular persons of the Tactacan spouses. Clearly, this single act of
depredation is not what is contemplated under PD 532 as its objective is to deter
and punish lawless elements who commit acts of depredation upon persons and
properties of innocent and defenseless inhabitants who travel from one place to
another thereby disturbing the peace and tranquility of the nation and stunting the
economic and social progress of the people.
Consequently, the accused should be held liable for the special complex crime of
robbery with homicide under Art. 294 of the Revised Penal Code as amended by
RA 765914 as the allegations in the Information are enough to convict him
therefor. In the interpretation of an information, what controls is the description
of the offense charged and not merely its designation.15cräläwvirtualibräry
Article 294, par. (1), of the Revised Penal Code as amended punishes the crime
of robbery with homicide by reclusion perpetua to death. Applying Art. 63,
second par., subpar. 2, of the Revised Penal Code which provides that "[i]n all
cases in which the law prescribes a penalty composed of two indivisible penalties,
the following rules shall be observed in the application thereof: x x x 2. [w]hen
there are neither mitigating nor aggravating circumstances in the commission of
the deed, the lesser penalty shall be applied," the lesser penalty of reclusion
perpetua is imposed in the absence of any modifying circumstance.
As to the damages awarded by the trial court to the heirs of the victim, we sustain
the award of P50,000.00 as civil indemnity for the wrongful death of Lilia
Tactacan. In addition, the amount of P50,000.00 as moral damages is ordered.
Also, damages for loss of earning capacity of Lilia Tactacan must be granted to jewelry therefore does not fall under either category of which the court can take
her heirs. The testimony of Gregorio Tactacan, the victims husband, on the judicial notice.19cräläwvirtualibräry
earning capacity of his wife, together with a copy of his wifes payroll, is enough
to establish the basis for the award. The formula for determining the life WHEREFORE , the Decision appealed from is MODIFIED. Accused
expectancy of Lilia Tactacan, applying the American Expectancy Table of ARMANDO REANZARES also known as "Armando Rianzares" is found
Mortality, is as follows: 2/3 multiplied by (80 minus the age of the GUILTY beyond reasonable doubt of Robbery with Homicide under Art. 294 of
deceased).16 Since Lilia was 48 years of age at the time of her death, 17 then her the Revised Penal Code as amended and is sentenced to reclusion perpetua. He
life expectancy was 21.33 years. is ordered to pay the heirs of the victim P50,000.00 as indemnity for death,
another P50,000.00 for moral damages, P1,200.00 for actual
At the time of her death, Lilia was earning P3,430.00 a month as a teacher at the damages, P438,971.40 for loss of earning capacity, and P22,000.00 for funeral,
San Roque Elementaryhool so that her annual income was P41,160.00. From this burial and related expenses. Costs de oficio.
amount, 50% should be deducted as reasonable and necessary living expenses to
arrive at her net earnings. Thus, her net earning capacity was P438,971.40 SO ORDERED.
computed as follows: Net earning capacity equals life expectancy times gross
annual income less reasonable and necessary living expenses
Notes.—In interpreting an information, what controls is not the designation but
Net earning = Life expectancy x Gross annual reasonable
the description of &the offense charged. (People vs. Sandoval, 254 SCRA 436
income - necessary
[1996]) living
capacity (x) expenses
A finding of brigandage or highway robbery involves not just the locus of the
x = 2 (80-48) x [P41,160.00 P20,580.00]
crime or the fact that more than three (3) persons perpetrated it—it is essential to
-
...... 3 prove that the outlaws were purposely organized not just for one act of robbery
but for several indiscriminate commissions thereof. (Filoteo, Jr. vs.
= 21.33 x P20,580.00 Sandiganbayan, 263 SCRA 222 [1996]) People vs. Reanzares, 334 SCRA 624,
G.R. No. 130656 June 29, 2000
= P438,971.40

However, the award of P1,000.00 representing the cash taken from Lilia Tactacan
must be increased to P1,200.00 as this was the amount established by the
prosecution without objection from the defense. The award of P172,000.00 for
funeral, burial and related expenses must be reduced to P22,000.00 as this was
the only amount sufficiently substantiated.18 There was no other competent
evidence presented to support the original award.

The amount of P2,500.00 as reimbursement for the Seiko wristwatch taken from
Gregorio Tactacan must be deleted in the absence of receipts or any other
competent evidence aside from the self-serving valuation made by the
prosecution. An ordinary witness cannot establish the value of jewelry and the
trial court can only take judicial notice of the value of goods which is a matter of
public knowledge or is capable of unquestionable demonstration. The value of
G.R. Nos. 135695-96. October 12, 2000.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TOMAS
TUNDAG, accused-appellant.
Alibis and Denials; Alibi and denial hardly counts as a worthy and weighty
ground for exculpation in a trial involving an accused’s freedom and his life.—
Appellant’s defense of alibi and denial is negative and self-serving. It hardly
counts as a worthy and weighty ground for exculpation in a trial involving his
freedom and his life. Against the testimony of private complainant who testified
on affirmative matters, such defense is not only trite but pathetic. Denial is an
inherently weak defense, which becomes even weaker in the face of the positive
identification by the victim of the appellant as the violator of her honor. Indeed,
we find that private complainant was unequivocal in charging appellant with
ravishing her. The victim’s account of the rapes complained of was
straightforward, detailed, and consistent. Her testimony never wavered even after
it had been explained to her that her father could be meted out the death penalty
if found guilty by the court.
Criminal Law; Rape; In a prosecution for rape, the complainant’s credibility is
the single most important issue.—In a prosecution for rape, the complainant’s
credibility is the single most important issue. The determination of the credibility
of witnesses is primarily the function of the trial court. The rationale for this is
that the trial court has the advantage of having observed at first hand the
demeanor of the witnesses on the stand and, therefore, is in a better position to
form an accurate impression and conclusion. Absent any showing that certain
facts of value have clearly been overlooked, which if considered could affect the
result of the case, or that the trial court’s finding are clearly arbitrary, the
conclusions reached by the court of origin must be respected and the judgment
rendered affirmed.
Same; Same; Filing a case for incestuous rape is of such a nature that a daughter’s
accusation must be taken seriously—it goes against human experience that a girl
would fabricate a story which would drag herself as well as her family to a
lifetime of dishonor, unless that is the truth.—Such allegation of a family feud,
however, does not explain the charges away. Filing a case for incestuous rape is
of such a nature that a daughter’s accusation must be taken seriously. It goes
against human experience that a girl would fabricate a story which would drag
herself as well as her family to a lifetime of dishonor, unless that is the truth, for
it is her natural instinct to protect her honor. More so, where her charges could
mean the death of her own father, as in this case.
Same; Same; Qualified Rape; Elements.—Section 335 of the Revised Penal
Code, as amended by Section 11 of R.A. No. 7659, penalizes rape of a minor
daughter by her father as qualified rape and a heinous crime. In proving such
felony, the prosecution must allege and prove the elements of rape: (1) sexual
congress; (2) with woman; (3) by force or without her consent and, in order to
warrant the imposition of capital punishment, the additional elements that; (4) the
victim is under 18 years of age at the time of the rape and (5) the offender is a
parent of the victim.
Same; Same; Same; Judicial Notice; Words and Phrases; Judicial notice is the
cognizance of certain facts which judges may properly take and act on without
proof because they already know them.—Judicial notice is the cognizance of
certain facts which judges may properly take and act on without proof because
they already know them. Under the Rules of Court, judicial notice may either be
mandatory or discretionary.
Same; Same; Same; Same; In this case, judicial notice of the age of the victim is
improper, despite the defense counsel’s admission, thereof acceding to the
prosecution’s motion.—In this case, judicial notice of the age of the victim is
improper, despite the defense counsel’s admission thereof acceding to the
prosecution’s motion. As required by Section 3 of Rule 129, as to any other
matters such as age, a hearing is required before courts can take judicial notice of
such fact. Generally, the age of the victim may be proven by the birth or baptismal
certificate of the victim, or in the absence thereof, upon showing that said
documents were lost or destroyed, by other documentary or oral evidence
sufficient for the purpose.
Same; Same; Same; The minority of the victim must be proved with equal
certainty and clearness as the crime itself.—In several recent cases, we have
emphasized the need for independent proof of the age of the victim, aside from
testimonial evidence from the victim or her relatives. In People v. Javier, we
stressed that the prosecution must present independent proof of the age of the
victim, even though it is not contested by the defense. The minority of the victim
must be proved with equal certainty and clearness as the crime itself. In People
v. Cula, we reiterated that it is the burden of the prosecution to prove with
certainty the fact that the victim was below 18 when the rape was committed in
order to justify the imposition of the death penalty. Since the record of the case
was bereft of any independent evidence thereon, such as the victim’s duly
certified Certificate of Live Birth, accurately showing private complainant’s age,
appellant could not be convicted of rape in its qualified form. In People v. Veloso,
the victim was alleged to have been only 9 years of age at the time of the rape. It
held that the trial court was correct when it ruled that the prosecution failed to
prove the victim’s age other than through the testimony of her father and herself.
Same; Same; Same; The failure to sufficiently establish victim’s age by
independent proof is a bar to conviction for rape in its qualified form.—
Considering the statutory requirement in Section 335 of the Revised Penal Code
as amended by R.A. No. 7659 and R.A. No. 8353, we reiterate here what the
Court has held in Javier without any dissent, that the failure to sufficiently
establish victim’s age by independent proof is a bar to conviction for rape in its
qualified form. For, in the words of Melo, J., “independent proof of the actual
age of a rape victim becomes vital and essential so as to remove an ‘iota of doubt’
that the case falls under the qualifying circumstances” for the imposition of the
death penalty set by the law.
Same; Same; Same; The father-daughter relationship has been treated by
Congress in the nature of a special circumstance which makes the imposition of
the death penalty mandatory.—The award of exemplary damages separately is
also in order, but on a different basis and for a different amount. Appellant being
the father of the victim, a fact duly proved during trial, we find that the alternative
circumstance of relationship should be appreciated here as an aggravating
circumstance. Under Article 2230 of the New Civil Code, exemplary damages
may be imposed when the crime was committed with one or more aggravating
circumstances. Hence, we find an award of exemplary damages in the amount of
P25,000.00 proper. Note that generally, in rape cases imposing the death penalty,
the rule is that relationship is no longer appreciated as a generic aggravating
circumstance in view of the amendments introduced by R.A. Nos. 7659 and 8353.
The father-daughter relationship has been treated by Congress in the nature of a
special circumstance which makes the imposition of the death penalty mandatory.
However, in this case, the special qualifying circumstance of relationship was
proved but not the minority of the victim, taking the case out of the ambit of
mandatory death sentence. Hence, relationship can be appreciated as a generic
aggravating circumstance in this instance so that exemplary/damages are called
for. In rapes committed by fathers on their own daughters, exemplary damages
may be imposed to deter other fathers with perverse tendency or aberrant sexual
behavior from sexually abusing their own daughters. People vs. Tundag, 342
SCRA 704, G.R. Nos. 135695-96 October 12, 2000
For automatic review is the judgment of the Regional Trial Court of Mandaue
City, Branch 28, in Criminal Cases Nos.DU-6186 and DU-6203, finding
appellant Tomas Tundag guilty of two counts of incestuous rape and sentencing
him to death twice.
On November 18, 1997, private complainant Mary Ann Tundag filed with the
Mandaue City Prosecutor’s Office two separate complaints for incestuous rape.
The first complaint, docketed as Criminal Case No. DU-6186, alleged:
That on or about the 5th day of September, 1997, in the City of Mandaue,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, being the father of complainant MARY ANN TUNDAG, who is a 13-
year-old girl, with deliberate intent, did then and there wilfully, unlawfully and
feloniously have sexual intercourse with the said offended party against the
latter’s will.
CONTRARY TO LAW.1
The other, docketed as Criminal Case No. DU-6203, averred:
That on or about the 7th day of November, 1997, in the City of Mandaue,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, being the father of complainant MARY ANN TUNDAG, who is a 13-
year-old girl, with deliberate intent, did then and there wilfully, unlawfully and
feloniously have sexual intercourse with the said offended party against the
latter’s will.
CONTRARY TO LAW.2
Upon arraignment appellant, assisted by counsel de parte, pleaded "Not Guilty"
to the charges.
The two cases were consolidated and a joint trial ensued.
Appellant’s defense was bare denial. He claimed that private complainant had
fabricated the rape charges against him since he and his daughter, "had a quarrel
when he accordingly reprimanded her for going out whenever he was not at
home."3
Appellant did not present any witness to reinforce his testimony.
On August 31, 1998, the trial court rendered its decision, thus:
WHEREFORE, foregoing premises considered, Joint Judgment is hereby
rendered, to wit:
I. In Criminal Case No. DU-6186 -
a) Finding the herein accused TOMAS TUNDAG guilty beyond reasonable
doubt for the crime of rape, said accused is hereby sentenced to the penalty of
death;
b) To indemnify the offended party Mary Ann Tundag the following amounts:
(1) P50,000.00 by reason of the commission of the offense of rape upon her; and
(2) Another P50,000.00 as moral and exemplary damages under Article 2219 in
relation to Articles 2217 and 2230 of the New Civil Code for the pain and moral
shock suffered by her and for the commission of the crime of rape with one
qualifying aggravating circumstance; and
c) To pay the costs.
II. In Criminal Case No. DU-6203 -
a) Finding the herein accused TOMAS TUNDAG guilty beyond reasonable
doubt for the crime of rape, said accused is hereby sentenced to the penalty of
death;
b) To indemnify the offended party Mary Ann Tundag the following amounts:
(1) P50,000.00 by reason of the commission of the offense of rape upon her; and
(2) Another P50,000.00 as moral and exemplary damages under Article 2219 in
relation to Articles 2217 and 2230 of the New Civil Code for the pain and moral
shock suffered by her and for the commission of the crime of rape with one
qualifying aggravating circumstance; and
(3) To pay the costs.
SO ORDERED.4
In its judgment, the court below gave credence to complainant’s version of what
accused did to her.
The evidence for the prosecution as adduced during the trial on the merits clearly
shows that private complainant Mary Ann Tundag is a 13 year old girl who does
not know how to read and write and has an IQ of 76% which is a very low general
mental ability and was living with her father, the herein accused, at Galaxy
Compound, Mandaue City.
xxx
That on September 5, 1997 at about 10:00 o’clock in the evening, she was in the
house together with her father. But before she went to sleep, her father was
already lying down on the mat while herself (sic) just lied down at his head side
which was not necessarily beside him. However, when she was already sleeping,
she noticed that her father who was already undressed was beside her and was
embracing her. Then, he undressed her which she resisted but her father used a
knife and told her that he would kill her if she shouts and after that, he inserted
his penis into her vagina and told her not to shout or tell anyone. In effect, his
penis penetrated her genital, which made her vagina bleed and was very painful.
That when the penis of her father was already inserted in her vagina, her father
was all the time asking by saying (sic) : ‘Does it feel good?’ And at the same
time, he was laughing and further, told her that a woman who does not marry can
never enter heaven and he got angry with her when she contradicted his
statement.
That while the penis of her father was inside her vagina and (he) was humping
over her, she felt intense pain that she cried and told him to pull it out but did not
accede and in fact, said: ‘Why will I pull it out when it feels so good(?)’
That after removing his penis from her vagina and after telling her that she could
not go to heaven if she did not get married, her father just stayed there and
continued smoking while she cried.
That in the evening of November 7, 1997, she was at home washing the dishes
while her father was just smoking and squatting. That after she finished washing
the dishes, she lied (sic) down to sleep when her father embraced her and since
she does not like what he did to her, she placed a stool between them but he just
brushed it aside and laid down with her and was able to take her womanhood
again by using a very sharp knife which he was holding and was pointing it at the
right side of her neck which made her afraid.
That in the early morning of the following day, she left her father’s place and
went to her neighbor by the name of Bebie Cabahug and told her what had
happened to her, who, in turn, advised her to report the matter to the police, which
she did and accompanied by the policemen, she went to the Southern Islands
Hospital where she was examined and after her medical examination, she was
brought back by the police and was investigated by them." 5
Appellant’s claim that the complainant’s charges were manufactured did not
impress the trial court, which found him twice guilty of rape. Now before us,
appellant assails his double conviction, simply contending that:6
THE TRIAL COURT HAS COMMITTED AN ERROR IN NOT ABSOLVING
THE ACCUSED-APPELLANT OF THE CRIMES CHARGED IN THE
INFORMATIONS DESPITE THE PRESENCE OF REASONABLE DOUBT
TO EXCULPATE HIM OF THE SAME.
Appellant flatly denies that the incidents complained of ever took place. He
contends that on September 5, 1997, he was working as a watch repairman near
Gal’s Bakery in Mandaue City Market and went home tired and sleepy at around
11:00 o’clock that evening. On November 7, 1997, he claims he was at work. In
his brief, he argues that it was impossible for him to have raped his daughter
because when the incidents allegedly transpired, "he went to work and naturally,
being exhausted and tired, it is impossible for him to do such wrongdoings." 7
In a prosecution for rape, the complainant’s credibility is the single most
important issue.13 The determination of the credibility of witnesses is primarily
the function of the trial court. The rationale for this is that the trial court has the
advantage of having observed at first hand the demeanor of the witnesses on the
stand and, therefore, is in a better position to form an accurate impression and
conclusion.14 Absent any showing that certain facts of value have clearly been
overlooked, which if considered could affect the result of the case, or that the trial
court’s finding are clearly arbitrary, the conclusions reached by the court of origin
must be respected and the judgment rendered affirmed.15
Moreover, we note here that private complainant’s testimony is corroborated by
medical findings that lacerations were present in her hymen. The examination
conducted by Dr. Bessie Acebes upon the private complainant yielded the
following results:
Genitalia: grossly female

The Office of the Solicitor General disagrees with appellant and urges the Court Pubic Hairs: scanty
to affirm the trial court’s decision, with the recommendation that the award of
damages and indemnity ex delicto be modified to conform to prevailing Labia Majora: coaptated
jurisprudence. Labia Minora: -do-
Considering the gravity of the offense charged as a heinous crime and the Fourchette: U-shaped
irreversibility of the penalty of death imposed in each of these cases before us,
the Court leaves no stone unturned in its review of the records, including the Vestibule: pinkish
evidence presented by both the prosecution and the defense. Conviction must rest
Hymen: + old healed laceration at 3 and 9 o’clock position(s).
on nothing less than a moral certainty of guilt.8 But here we find no room to
disturb the trial court’s judgment concerning appellant’s guilt, because his Orifice: admits 2 fingers with ease
defense is utterly untenable.
Vagina:
Appellant’s defense of alibi and denial is negative and self-serving. It hardly
counts as a worthy and weighty ground for exculpation in a trial involving his Walls: pinkish
freedom and his life. Against the testimony of private complainant who testified
Ruganities: prominent
on affirmative matters,9 such defense is not only trite but pathetic. Denial is an
inherently weak defense, which becomes even weaker in the face of the positive Uterus: small
identification by the victim of the appellant as the violator of her honor.10 Indeed,
we find that private complainant was unequivocal in charging appellant with Cervix: closed
ravishing her. The victim’s account of the rapes complained of was
Discharges: Mucoid, minimal
straightforward, detailed, and consistent.11 Her testimony never wavered even
after it had been explained to her that her father could be meted out the death Smears:
penalty if found guilty by the court.12
Conclusions: sperm identification (-)
Gram staining of vaginal disc. 16
Dr. Acebes testified that her findings of healed hymenal lacerations in the
complainant’s private parts meant a history of sexual congress on her
part.17 According to her, the lacerations may have been caused by the entry of an
erect male organ into complainant’s genitals. The examining physician likewise
pointed out that previous coitus may be inferred from complainant’s U-shaped
fourchette since the fourchette of a female who has not yet experienced sexual
intercourse is V-shaped.18 While Dr. Acebes conceded under cross-examination,
that the existence of the datum "U-shape(d) fourchette does not conclusively and
absolutely mean that there was sexual intercourse or contact because it can be
caused by masturbation of fingers or other things," 19 nonetheless, the presence of
the hymenal lacerations tends to support private complainant’s claim that she was
raped by appellant.
Appellant next contends that his daughter pressed the rape charges against him
because she had quarreled with him after he had castigated her for misbehavior.
He stresses that the prosecution did not rebut his testimony regarding his quarrel
or misunderstanding with private complainant. He urges us to consider the
charges filed against him as the result of his frequent castigation of her delinquent
behavior.20
Such allegation of a family feud, however, does not explain the charges away.
Filing a case for incestuous rape is of such a nature that a daughter’s accusation
must be taken seriously. It goes against human experience that a girl would
fabricate a story which would drag herself as well as her family to a lifetime of
dishonor, unless that is the truth, for it is her natural instinct to protect her
honor.21 More so, where her charges could mean the death of her own father, as
in this case.
Appellant likewise points out that it was very unlikely for him to have committed
the crimes imputed to him considering that he and his wife had ten children to
attend to and care for. This argument, however, is impertinent and immaterial.
Appellant was estranged from his wife, and private complainant was the only
child who lived with him.22 As pointed out by the Solicitor General, appellant
was thus "free to do as he wished to satisfy his bestial lust on his daughter." 23
Nor does appellant’s assertion that private complainant has some psychological
problems and a low IQ of 76 in any way favor his defense. These matters did not
affect the credibility of her testimony that appellant raped her twice. We note that
the victim understood the consequences of prosecuting the rape charges against
her own father, as shown by the following testimony of the victim on cross-
examination:
Q : Were you informed that if, and when your father will be found guilty, your
father will be sentenced to death?
A : Yes.
Q : Until now you wanted that your father will be sentenced by death?
A (Witness nodding.)
xxx
Q : I will inform you, Miss Witness, that you have filed two cases against your
father and in case your father would be found guilty, two death sentences will be
imposed against him?
A: Yes.
Q: With that information, do you still want this case would proceed?
A: I want this to proceed.24
Indeed, appellant is guilty. But is the penalty of death imposed on him correct?
Section 335 of the Revised Penal Code, as amended by Section 11 of R.A. No.
7659,25 penalizes rape of a minor daughter by her father as qualified rape 26 and a
heinous crime. In proving such felony, the prosecution must allege and prove the
elements of rape: (1) sexual congress; (2) with woman; (3) by force or without
her consent27 and in order to warrant the imposition of capital punishment, the
additional elements that: (4) the victim is under 18 years of age at the time of the
rape and (5) the offender is a parent of the victim.28
In this case, it was sufficiently alleged and proven that the offender was the
victim’s father.29 But the victim’s age was not properly and sufficiently proved
beyond reasonable doubt. She testified that she was thirteen years old at the time
of the rapes. However, she admitted that she did not know exactly when she was
born because her mother did not tell her. She further said that her birth certificate
was likewise with her mother. In her own words, the victim testified - 30
COURT TO WITNESS
Q: When were you born?
A: I do not know.
Q: You do not know your birthday?
A: My mama did not tell me exactly when I asked her.
COURT: Proceed.
FISCAL PEREZ: For our failure to secure the Birth Certificate Your Honor, may
we just request for judicial notice that the victim here is below 18 years old.
ATTY. SURALTA: Admitted. …
Judicial notice is the cognizance of certain facts which judges may properly take
and act on without proof because they already know them. 31 Under the Rules of
Court, judicial notice may either be mandatory or discretionary. Section 1 of Rule
129 of the Rules of Court provides when court shall take mandatory judicial
notice of facts -
SECTION 1. Judicial notice, when mandatory. - A court shall take judicial notice
without the introduction of evidence, of the existence and territorial extent of
states, their political history, forms of government and symbols of nationality, the
law of nations, the admiralty and maritime courts of the world and their seals, the
political constitution and history of the Philippines, the official acts of the
legislative, executive and judicial departments of the Philippines, the laws of
nature, the measure of time, and the geographical divisions.
Section 2 of Rule 129 enumerates the instances when courts may take
discretionary judicial notice of facts -
SEC. 2. Judicial notice, when discretionary. - A court may take judicial notice of
matters which are of public knowledge, or are capable of unquestionable
demonstration or ought to be known to judges because of their judicial functions.
Thus, it can be considered of public knowledge and judicially noticed that the
scene of the rape is not always nor necessarily isolated or secluded for lust is no
respecter of time or place. The offense of rape can and has been committed in
places where people congregate, e.g. inside a house where there are occupants, a
five (5) meter room with five (5) people inside, or even in the same room which
the victim is sharing with the accused’s sister.32
The Court has likewise taken judicial notice of the Filipina’s inbred modesty and
shyness and her antipathy in publicly airing acts which blemish her honor and
virtue.33
On the other hand, matters which are capable of unquestionable demonstration
pertain to fields of professional and scientific knowledge. For example, in People
v. Alicante,34 the trial court took judicial notice of the clinical records of the
attending physicians concerning the birth of twin baby boys as "premature" since
one of the alleged rapes had occurred 6 to 7 months earlier.
As to matters which ought to be known to judges because of their judicial
functions, an example would be facts which are ascertainable from the record of
court proceedings, e.g. as to when court notices were received by a party.
With respect to other matters not falling within the mandatory or discretionary
judicial notice, the court can take judicial notice of a fact pursuant to the
procedure in Section 3 of Rule 129 of the Rules of Court which requires that -
SEC. 3. Judicial notice, when hearing necessary. - During the trial, the court, on
its own initiative, or on request of a party, may announce its intention to take
judicial notice of any matter and allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court, on its own
initiative or on request of a party, may take judicial notice of any matter and allow
the parties to be heard thereon if such matter is decisive of a material issue in the
case.
In this case, judicial notice of the age of the victim is improper, despite the
defense counsel’s admission, thereof acceding to the prosecution’s motion. As
required by Section 3 of Rule 129, as to any other matters such as age, a hearing
is required before courts can take judicial notice of such fact. Generally, the age
of the victim may be proven by the birth or baptismal certificate of the victim, or
in the absence thereof, upon showing that said documents were lost or destroyed,
by other documentary or oral evidence sufficient for the purpose.
Thus, in People v. Rebancos, 172 SCRA 426 (1989), the victim was below 12
and we found that the rape committed was statutory rape. The mother testified
that her daughter was born on October 26, 1974, and so was only 9 years old at
the time of the rape on February 12, 1984. Although no birth certificate was
presented because the victim’s birth had allegedly not been registered, her
baptismal certificate was duly presented. Hence, we ruled that the mother’s
testimony coupled with the presentation of the baptismal certificate was sufficient
to establish that the victim was below 12 at the time of the rape.
However, in People v. Vargas, 257 SCRA 603 (1996), we ruled that appellant
can only be convicted of simple rape, and not statutory rape, because of failure
of the prosecution to prove the minority of the victim, who was allegedly 10 years
old at the time of the rape.1âwphi1 The prosecution failed to present either the
birth or baptismal certificate of the victim. Also there was no showing that the
said documents were lost or destroyed to justify their non-presentation. We held
that testimony of the victim and her aunt were hearsay, and that it was not correct
for the trial court to judge the age of the victim by her appearance.
In several recent cases, we have emphasized the need for independent proof of
the age of the victim, aside from testimonial evidence from the victim or her
relatives. In People v. Javier,35 we stressed that the prosecution must present
independent proof of the age of the victim, even though it is not contested by the
defense. The minority of the victim must be proved with equal certainty and
clearness as the crime itself. In People v. Cula,36 we reiterated that it is the burden
of the prosecution to prove with certainty the fact that the victim was below 18
when the rape was committed in order to justify the imposition of the death
penalty. Since the record of the case was bereft of any independent evidence
thereon, such as the victim’s duly certified Certificate of Live Birth, accurately
showing private complainant’s age, appellant could not be convicted of rape in
its qualified form. In People v. Veloso,37 the victim was alleged to have been only
9 years of age at the time of the rape. It held that the trial court was correct when
it ruled that the prosecution failed to prove the victim’s age other than through
the testimony of her father and herself.
Considering the statutory requirement in Section 335 of the Revised Penal Code
as amended by R.A. No. 7659 and R.A. No. 8353, we reiterate here what the
Court has held in Javier without any dissent, that the failure to sufficiently
establish victim’s age by independent proof is a bar to conviction for rape in its
qualified form. For, in the words of Melo, J., "independent proof of the actual
age of a rape victim becomes vital and essential so as to remove an ‘iota of doubt’
that the case falls under the qualifying circumstances" for the imposition of the
death penalty set by the law.
In this case, the first rape was committed on September 5, 1997 and is therefore
governed by the death penalty law, R.A. 7659. The penalty for the crime of
simple rape or rape in its unqualified form under Art. 335 of the Revised Penal
Code, as amended by Sec. 11 of R.A. 7659, is reclusion perpetua. The second
rape was committed on November 7, 1997, after the effectivity of R.A. 8353, also
known as the Anti-Rape Law of 1997, which took effect on October 22, 1997.
The penalty for rape in its unqualified form remains the same.
As to civil indemnity, the trial court correctly awarded P50,000.00 for each count
of rape as civil indemnity. However, the award of another P50,000.00 as "moral
and exemplary damages under Article 2219 in relation to Articles 2217 and 2230
of the Civil Code" for each count is imprecise. In rape cases, the prevailing
jurisprudence permits the award of moral damages without need for pleading or
proof as to the basis thereof.38 Thus, pursuant to current jurisprudence, we award
the amount of P50,000.00 as moral damages for each count of rape.
The award of exemplary damages separately is also in order, but on a different
basis and for a different amount. Appellant being the father of the victim, a fact
duly proved during trial, we find that the alternative circumstance of relationship
should be appreciated here as an aggravating circumstance. Under Article 2230
of the New Civil Code, exemplary damages may be imposed when the crime was
committed with one or more aggravating circumstances. Hence, we find an award
of exemplary damages in the amount of P25,000.00 proper. Note that generally,
in rape cases imposing the death penalty, the rule is that relationship is no longer
appreciated as a generic aggravating circumstance in view of the amendments
introduced by R.A. Nos. 7659 and 8353. The father-daughter relationship has
been treated by Congress in the nature of a special circumstance which makes the
imposition of the death penalty mandatory.39 However, in this case, the special
qualifying circumstance of relationship was proved but not the minority of the
victim, taking the case out of the ambit of mandatory death sentence. Hence,
relationship can be appreciated as a generic aggravating circumstance in this
instance so that exemplary damages are called for. In rapes committed by fathers
on their own daughters, exemplary damages may be imposed to deter other
fathers with perverse tendency or aberrant sexual behavior from sexually abusing
their own daughters.40
WHEREFORE, the judgment of the Regional Trial Court of Mandaue City,
Branch 28, in Criminal Case Nos. DU-6186 and DU-6203, is hereby MODIFIED
as follows: appellant Tomas Tundag is found guilty of two (2) counts of simple
rape; and for each count, sentenced to reclusion perpetua and ordered to pay the
victim the amount of P50,000.00 as indemnity, P50,000.00 as moral damages,
and P25,000.00 as exemplary damages.
No pronouncement as to costs.
SO ORDERED.

Notes.—The Supreme Court takes judicial cognizance of the fact that in rural
areas in the Philippines, young ladies are strictly required to act with
circumspection and prudence, and that great caution is observed so that their
reputations shall remain untainted. (People vs. Godoy, 250 SCRA 676 [1995])

An action to cancel a person’s Birth Certificate for being allegedly void ab initio
does not prescribe, and the prescriptive period set forth in Article 170 of the
Family Code does not apply. (Babiera vs. Catotal, 333 SCRA 487 [2000])

A duly certified certificate of live birth accurately showing the complainant’s age
or some other official document or record such as a school record, has been
recognized as competent evidence to prove the age of the victim. (People vs.
Tabanggay, 334 SCRA 575 [2000]) People vs. Tundag, 342 SCRA 704, G.R.
Nos. 135695-96 October 12, 2000
G.R. No. 114776. February 2, 2000.*
MENANDRO B. LAUREANO, petitioner, vs. COURT OP APPEALS AND
SINGAPORE AIRLINES LIMITED, respondents.
Actions; Conflict of Laws; The party who claims the applicability of a foreign
law has the burden of proof, and where said party has failed to discharge the
burden, Philippine law applies.—At the outset, we find it necessary to state our
concurrence on the assumption of jurisdiction by the Regional Trial Court of
Manila, Branch 9. The trial court rightly ruled on the application of Philippine
law, thus: “Neither can the Court determine whether the termination of the
plaintiff is legal under the Singapore Laws because of the defendant’s failure to
show which specific laws of Singapore Laws apply to this case. As substantially
discussed in the preceding paragraphs, the Philippine Courts do not take judicial
notice of the laws of Singapore. The defendant that claims the applicability of the
Singapore Laws to this case has the burden of proof. The defendant has failed to
do so. Therefore, the Philippine law should be applied.”
Same; Labor Law; Prescription; Illegal Dismissals; In illegal dismissal, it is
settled, that the ten-year prescriptive period fixed in Article 1144 of the Civil
Code may not be invoked, for the Civil Code is a law of general application, while
the prescriptive period fixed in Article 292 of the Labor Code is a special law
applicable to claims arising from employee-employer relations.—What rules on
prescription should apply in cases like this one has long been decided by this
Court. In illegal dismissal, it is settled, that the ten-year prescriptive period fixed
in Article 1144 of the Civil Code may not be invoked by petitioners, for the Civil
Code is a law of general application, while the prescriptive period fixed in Article
292 of the Labor Code [now Article 291] is a SPECIAL LAW applicable to
claims arising from employee-employer relations.
Same; Same; Same; Although the commencement of a civil action stops the
running of the statute of prescription or limitations, its dismissal or voluntary
abandonment by plaintiff leaves the parties in exactly the same position as though
no action had been commenced at all.—Petitioner claims that the running of the
prescriptive period was tolled when he filed his complaint for illegal dismissal
before the Labor Arbiter of the National Labor Relations Commission. However,
this claim deserves scant consideration; it has no legal leg to stand on. In Olympia
International, Inc. vs. Court of Appeals, we held that “although the
commencement of a civil action stops the running of the statute of prescription
or limitations, its dismissal or voluntary abandonment by plaintiff leaves the
parties in exactly the same position as though no action had been commenced at
all.”
Same; Same; Same; Contracts; It is a settled rule that contracts have the force of
law between the parties.—As to whether petitioner’s separation from the
company due to retrenchment was valid, the appellate court found that the
employment contract of petitioner allowed for pre-termination of employment.
We agree with the Court of Appeals when it said, “It is a settled rule that contracts
have the force of law between the parties. From the moment the same is perfected,
the parties are bound not only to the fulfillment of what has been expressly
stipulated but also to all consequences which, according to their nature, may be
in keeping with good faith, usage and law. Thus, when plaintiff-appellee accepted
the offer of employment, he was bound by the terms and conditions set forth in
the contract, among others, the right of mutual termination by giving three
months written notice or by payment of three months salary. Such provision is
clear and readily understandable, hence, there is no room for interpretation.”
Laureano vs. Court of Appeals, 324 SCRA 414, G.R. No. 114776 February 2,
2000
This petition for review on certiorari under Rule 45 of the Rules of Court seeks
to reverse the Decision of the Court of Appeals, dated October 29, 1993, in C.A.
G.R. No. CV 34476, as well as its Resolution dated February 28, 1994, which
denied the motion for reconsideration.
The facts of the case as summarized by the respondent appellate court are as
follows:
Sometime in 1978, plaintiff [Menandro B. Laureano, herein petitioner], then
Director of Flight Operations and Chief Pilot of Air Manila, applied for
employment with defendant company [herein private respondent] through its
Area Manager in Manila.
On September 30, 1978, after the usual personal interview, defendant wrote to
plaintiff, offering a contract of employment as an expatriate B-707 captain for an
original period of two (2) years commencing on January 21, 1978. Plaintiff
accepted the offer and commenced working on January 20, 1979. After passing
the six-month probation period, plaintiffs appointment was confirmed effective
July 21, 1979. (Annex "B", p. 30, Rollo).
On July 21, 1979, defendant offered plaintiff an extension of his two-year
contract to five (5) years effective January 21, 1979 to January 20, 1984 subject
to the terms and conditions set forth in the contract of employment, which the
latter accepted (Annex "C" p. 31, Rec.).
During his service as B-707 captain, plaintiff on August 24, 1980, while in
command of a flight, committed a noise violation offense at the Zurich Airport,
for which plaintiff apologized.(Exh. "3", p. 307, Rec.).
Sometime in 1980, plaintiff featured in a tail scraping incident wherein the tail of
the aircraft scraped or touched the runway during landing. He was suspended for
a few days until he was investigated by board headed by Capt. Choy. He was
reprimanded.
On September 25, 1981, plaintiff was invited to take a course of A-300
conversion training at Aeroformacion, Toulouse, France at dependant's expense.
Having successfully completed and passed the training course, plaintiff was
cleared on April 7, 1981, for solo duty as captain of the Airbus A-300 and
subsequently appointed as captain of the A-300 fleet commanding an Airbus A-
300 in flights over Southeast Asia. (Annexes "D", "E" and "F", pp. 34-38, Rec.).
Sometime in 1982, defendant, hit by a recession, initiated cost-cutting measures.
Seventeen (17) expatriate captains in the Airbus fleet were found in excess of the
defendant's requirement (t.s.n., July 6, 1988. p. 11). Consequently, defendant
informed its expatriate pilots including plaintiff of the situation and advised them
to take advance leaves. (Exh. "15", p. 466, Rec.)
Realizing that the recession would not be for a short time, defendant decided to
terminate its excess personnel (t.s.n., July 6, 1988, p. 17). It did not, however,
immediately terminate it's A-300 pilots. It reviewed their qualifications for
possible promotion to the B-747 fleet. Among the 17 excess Airbus pilots
reviewed, twelve were found qualified. Unfortunately, plaintiff was not one of
the twelve.
On October 5, 1982, defendant informed plaintiff of his termination effective
November 1, 1982 and that he will be paid three (3) months salary in lieu of three
months notice (Annex "I", pp. 41-42, Rec.). Because he could not uproot his
family on such short notice, plaintiff requested a three-month notice to afford him
time to exhaust all possible avenues for reconsideration and retention. Defendant
gave only two (2) months notice and one (1) month salary. (t.s.n., Nov. 12, 1987.
p. 25).
Aggrieved, plaintiff on June 29, 1983, instituted a case for illegal dismissal before
the Labor Arbiter. Defendant moved to dismiss on jurisdiction grounds. Before
said motion was resolved, the complaint was withdrawn. Thereafter, plaintiff
filed the instant case for damages due to illegal termination of contract of services
before the court a quo (Complaint, pp. 1-10, Rec.).
Again, defendant on February 11, 1987 filed a motion to dismiss alleging inter
alia: (1) that the court has no jurisdiction over the subject matter of the case, and
(2) that Philippine courts have no jurisdiction over the instant case. Defendant
contends that the complaint is for illegal dismissal together with a money claim
arising out of and in the course of plaintiffs employment "thus it is the Labor
Arbiter and the NLRC who have the jurisdiction pursuant to Article 217 of the
Labor Code" and that, since plaintiff was employed in Singapore, all other aspects
of his employment contract and/or documents executed in Singapore. Thus,
defendant postulates that Singapore laws should apply and courts thereat shall
have jurisdiction. (pp. 50-69, Rec.).
In traversing defendant's arguments, plaintiff claimed that: (1) where the items
demanded in a complaint are the natural consequences flowing from a breach of
an obligation and not labor benefits, the case is intrinsically a civil dispute; (2)
the case involves a question that is beyond the field of specialization of labor
arbiters; and (3) if the complaint is grounded not on the employee's dismissal per
se but on the manner of said dismissal and the consequence thereof, the case falls
under the jurisdiction of the civil courts. (pp. 70-73, Rec.)
On March 23, 1987, the court a quo denied defendant's motion to dismiss (pp.
82-84, Ibid). The motion for reconsideration was likewise denied. (p. 95 ibid.)
On September 16, 1987, defendant filed its answer reiterating the grounds relied
upon in its motion to dismiss and further arguing that plaintiff is barred by laches,
waiver, and estoppel from instituting the complaint and that he has no cause of
action . (pp. 102-115)1
On April 10, 1991, the trial court handed down its decision in favor of plaintiff.
The dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of plaintiff Menandro
Laureano and against defendant Singapore Airlines Limited, ordering defendant
to pay plaintiff the amounts of
SIN$396,104.00, or its equivalent in Philippine currency at the current rate of
exchange at the time of payment, as and for unearned compensation with legal
interest from the filing of the complaint until fully paid;
SIN$154,742.00, or its equivalent in Philippine currency at the current rate of
exchange at the time of payment; and the further amounts of P67,500.00 as
consequential damages with legal interest from the filing of the complaint until
fully paid;
P1,000,000.00 as and for moral damages; P1,000,000.00 as and for exemplary
damages; and P100,000.00 as and for attorney's fees.
Costs against defendant.
SO ORDERED.2
Singapore Airlines timely appealed before the respondent court and raised the
issues of jurisdiction, validity of termination, estoppel, and damages.
On October 29, 1993, the appellate court set aside the decision of the trial court,
thus,
. . . In the instant case, the action for damages due to illegal termination was filed
by plaintiff-appellee only on January 8, 1987 or more than four (4) years after the
effectivity date of his dismissal on November 1, 1982. Clearly, plaintiff-
appellee's action has already prescribed.
WHEREFORE, the appealed decision is hereby REVERSED and SET ASIDE.
The complaint is hereby dismissed.
SO ORDERED.3
Petitioner's and Singapore Airlines' respective motions for reconsideration were
denied.
Now, before the Court, petitioner poses the following queries:
1. IS THE PRESENT ACTION ONE BASED ON CONTRACT WHICH
PRESCRIBES IN TEN YEARS UNDER ARTICLE 1144 OF THE NEW CIVIL
CODE OR ONE FOR DAMAGES ARISING FROM AN INJURY TO THE
RIGHTS OF THE PLAINTIFF WHICH PRESCRIBES IN FOUR YEARS
UNDER ARTICLE 1146 OF THE NEW CIVIL CODE?
2. CAN AN EMPLOYEE WITH A FIXED PERIOD OF EMPLOYMENT BE
RETRENCHED BY HIS EMPLOYER?
3. CAN THERE BE VALID RETRENCHMENT IF AN EMPLOYER MERELY
FAILS TO REALIZE THE EXPECTED PROFITS EVEN IF IT WERE NOT,
IN FACT, INCURRING LOSSES?
At the outset, we find it necessary to state our concurrence on the assumption of
jurisdiction by the Regional Trial Court of Manila, Branch 9. The trial court
rightly ruled on the application of Philippine law, thus:
Neither can the Court determine whether the termination of the plaintiff is legal
under the Singapore Laws because of the defendant's failure to show which
specific laws of Singapore Laws apply to this case. As substantially discussed in
the preceding paragraphs, the Philippine Courts do not take judicial notice of the
laws of Singapore. The defendant that claims the applicability of the Singapore
Laws to this case has the burden of proof. The defendant has failed to do so.
Therefore, the Philippine law should be applied.4
Respondent Court of Appeals acquired jurisdiction when defendant filed its
appeal before said court.5 On this matter, respondent court was correct when it
barred defendant-appellant below from raising further the issue of jurisdiction.6
Petitioner now raises the issue of whether his action is one based on Article 1144
or on Article 1146 of the Civil Code. According to him, his termination of
employment effective November 1, 1982, was based on an employment contract
which is under Article 1144, so his action should prescribe in 10 years as provided
for in said article. Thus he claims the ruling of the appellate court based on Article
1146 where prescription is only four (4) years, is an error. The appellate court
concluded that the action for illegal dismissal originally filed before the Labor
Arbiter on June 29, 1983, but which was withdrawn, then filed again in 1987
before the Regional Trial Court, had already prescribed.
In our view, neither Article 11447 nor Article 11468 of the Civil Code is here
pertinent. What is applicable is Article 291 of the Labor Code, viz:
Art. 291. Money claims. All money claims arising from employee-employer
relations accruing during the effectivity of this Code shall be filed within three
(3) years from the time the cause of action accrued; otherwise they shall be
forever barred.
xxx-xxx-xxx
What rules on prescription should apply in cases like this one has long been
decided by this Court. In illegal dismissal, it is settled, that the ten-year
prescriptive period fixed in Article 1144 of the Civil Code may not be invoked
by petitioners, for the Civil Code is a law of general application, while the
prescriptive period fixed in Article 292 of the Labor Code [now Article 291] is a
SPECIAL LAW applicable to claims arising from employee-employer relations.9
More recently in De Guzman vs. Court of Appeals,10 where the money claim was
based on a written contract, the Collective Bargaining Agreement, the Court held:
. . . The language of Art. 291 of the Labor Code does not limit its application only
to "money claims specifically recoverable under said Code" but covers all money
claims arising from an employee-employer relations" (Citing Cadalin v. POEA
Administrator, 238 SCRA 721, 764 [1994]; and Uy v. National Labor Relations
Commission, 261 SCRA 505, 515 [1996]). . . .
It should be noted further that Article 291 of the Labor Code is a special law
applicable to money claims arising from employer-employee relations; thus, it
necessarily prevails over Article 1144 of the Civil Code, a general law. Basic is
the rule in statutory construction that "where two statutes are of equal theoretical
application to a particular case, the one designed therefore should prevail."
(Citing Leveriza v. Intermediate Appellate Court, 157 SCRA 282,
294.) Generalia specialibus non derogant.11
In the light of Article 291, aforecited, we agree with the appellate court's
conclusion that petitioner's action for damages due to illegal termination filed
again on January 8, 1987 or more than four (4) years after the effective date of
his dismissal on November 1, 1982 has already prescribed.
In the instant case, the action for damages due to illegal termination was filed by
plaintiff-appelle only on January 8, 1987 or more than four (4) years after the
effectivity date of his dismissal on November 1, 1982. Clearly, plaintiff-
appellee's action has already prescribed.
We base our conclusion not on Article 1144 of the Civil Code but on which sets
the prescription period at three (3) years and which governs under this
jurisdiction.
Petitioner claims that the running of the prescriptive period was tolled when he
filed his complaint for illegal dismissal before the Labor Arbiter of the National
Labor Relations Commission. However, this claim deserves scant consideration;
it has no legal leg to stand on. In Olympia International, Inc., v. , Court of
Appeals, we held that "although the commencement of a civil action stops the
running of the statute of prescription or limitations, its dismissal or voluntary
abandonment by the plaintiff leaves in exactly the same position as though no
action had been commenced at all."12
Now, as to whether petitioner's separation from the company due to retrenchment
was valid, the appellate court found that the employment contract of petitioner
allowed for pre-termination of employment. We agree with the Court of Appeals
when it said,
It is a settled rule that contracts have the force of law between the parties. From
the moment the same is perfected, the parties are bound not only to the fulfillment
of what has been expressly stipulated but also to all consequences which,
according to their nature, may be in keeping with good faith, usage and law. Thus,
when plaintiff-appellee accepted the offer of employment, he was bound by the
terms and conditions set forth in the contract, among others, the right of mutual
termination by giving three months written notice or by payment of three months
salary. Such provision is clear and readily understandable, hence, there is no room
for interpretation.
xxx-xxx-xxx
Further, plaintiff-appellee's contention that he is not bound by the provisions of
the Agreement, as he is not a signatory thereto, deserves no merit. It must be
noted that when plaintiff-appellee's employment was confirmed, he applied for
membership with the Singapore Airlines Limited (Pilots) Association, the
signatory to the aforementioned Agreement. As such, plaintiff-appellee is
estopped from questioning the legality of the said agreement or any proviso
contained therein.13
Moreover, the records of the present case clearly show that respondent court's
decision is amply supported by evidence and it did not err in its findings,
including the reason for the retrenchment:
When defendant-appellant was faced with the world-wide recession of the airline
industry resulting in a slow down in the company's growth particularly in the
regional operation (Asian Area) where the Airbus 300 operates. It had no choice
but to adopt cost cutting measures, such as cutting down services, number of
frequencies of flights, and reduction of the number of flying points for the A-300
fleet (t.s.n., July 6, 1988, pp. 17-18). As a result, defendant-appellant had to lay
off A-300 pilots, including plaintiff-appellee, which it found to be in excess of
what is reasonably needed.14
All these considered, we find sufficient factual and legal basis to conclude that
petitioner's termination from employment was for an authorized cause, for which
he was given ample notice and opportunity to be heard, by respondent company.
No error nor grave abuse of discretion, therefore, could be attributed to
respondent appellate court.

ACCORDINGLY, the instant petition is DISMISSED. The decision of the Court

of Appeals in C.A. CV No. 34476 is AFFIRMED.

SO ORDERED.

Notes.—It is a time-honored principle that contracts are respected as the law

between the contracting parties.

The parties are charged with knowledge of the existing law at the time they enter
into a contract and at the time it is to become operative—and, a person is
presumed to be more knowledgeable about his own state law than his alien or
foreign contemporary. (Communication Materials and Design, Inc. vs. Court of
Appeals, 260 SCRA 673 [1996])

A manning agency cannot be faulted for complying with the applicable foreign
law. (Omanfil International Manpower Development Corporation vs. National
Labor Relations Commission, 300 SCRA 455 [1998]) Laureano vs. Court of
Appeals, 324 SCRA 414, G.R. No. 114776 February 2, 2000
G.R. Nos. 100901-08. July 16, 1998.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAILON
KULAIS, CARLOS FALCASANTOS @ “Commander Falcasantos,”
AWALON KAMLON HASSAN @ “Commander Kamlon,” MAJID
SAMSON @ “Commander Bungi,” JUMATIYA AMLANI DE
FALCASANTOS, NORMA SAHIDDAN DE KULAIS, SALVADOR
MAMARIL y MENDOZA, HADJIRUL PLASIN y ALIH, JAINUDDIN
HASSAN y AHMAD, IMAM TARUK ALAH y SALIH, JALINA HASSAN
DE KAMMING, FREDDIE MANUEL @ “Ajid” and several JOHN and
JANE DOES, accused. JAILON KULAIS, accused-appellant.
Criminal Law; Constitutional Law; Right of Confrontation; Judicial Notice; As a
general rule, courts should not take judicial notice of the evidence presented in
other proceedings, even if these have been tried or are pending in the same court,
or have been heard and are actually pending before the same judge.—True, as a
general rule, courts should not take judicial notice of the evidence presented in
other proceedings, even if these have been tried or are pending in the same court,
or have been heard and are actually pending before the same judge. This is
especially true in criminal cases, where the accused has the constitutional right to
confront and cross-examine the witnesses against him.
Same; Kidnapping; The fact that the victims were detained for only three hours
does not matter if said victims are public officers.—Victims Virginia San
Agustin-Gara, Monico Saavedra and Calixto Francisco were members of the
government monitoring team abducted by appellant’s group. The three testified
to the fact of kidnapping; however, they were not able to identify the appellant.
Even so, appellant’s identity as one of the kidnappers was sufficiently established
by Calunod, Bacarro and Perez, who were with Gara, Saavedra and Francisco
when the abduction occurred. That Gara, Saavedra and Francisco were detained
for only three hours does not matter. In People vs. Domasian, the victim was
similarly held for three hours, and was released even before his parents received
the ransom note. The accused therein argued that they could not be held guilty of
kidnapping as no enclosure was involved, and that only grave coercion was
committed, if at all. Convicting appellants of kidnapping or serious illegal
detention under Art. 267 (4) of the Revised Penal Code, the Court found that the
victim, an eight-year-old boy, was deprived of his liberty when he was restrained
from going home. The Court justified the conviction by holding that the offense
consisted not only in placing a person in an enclosure, but also in detaining or
depriving him, in any manner, of his liberty. Likewise, in People vs. Santos, the
Court held that since the appellant was charged and convicted under Article 267,
paragraph 4, it was not the duration of the deprivation of liberty which was
important, but the fact that the victim, a minor, was locked up.
Same; Witnesses; Alibi and Denial; Jurisprudence gives greater weight to the
positive narration of prosecution witnesses than to the negative testimonies of the
defense.—The appellant’s bare denial is a weak defense that becomes even
weaker in the face of the prosecution witnesses’ positive identification of him.
Jurisprudence gives greater weight to the positive narration of prosecution
witnesses than to the negative testimonies of the defense. Between positive and
categorical testimony which has a ring of truth to it on the one hand, and a bare
denial on the other, the former generally prevails. Jessica Calunod, Armando
Bacarro and Edilberto Perez testified in a clear, straightforward and frank
manner; and their testimonies were compatible on material points. Moreover, no
ill motive was attributed to the kidnap victims and none was found by this Court.
Same; Penalties; Life imprisonment is not synonymous with reclusion
perpetua.—The trial court erred when it sentenced the appellant to six terms of
life imprisonment. The penalty for kidnapping with ransom, under the Revised
Penal Code, is reclusion perpetua to death. Since the crimes happened in 1988,
when the capital penalty was proscribed by the Constitution, the maximum
penalty that could have been imposed was reclusion perpetua. Life imprisonment
is not synonymous with reclusion perpetua. Unlike life imprisonment, reclusion
perpetua carries with it accessory penalties provided in the Revised Penal Code
and has a definite extent or duration. Life imprisonment is invariably imposed for
serious offenses penalized by special laws, while reclusion perpetua is prescribed
in accordance with the Revised Penal Code. People vs. Kulais, 292 SCRA 551,
G.R. Nos. 100901-08 July 16, 1998
The trial court's erroneous taking of judicial notice of a witness' testimony in
another case, also pending before it, does not affect the conviction of the
appellant, whose guilt is proven beyond reasonable doubt by other clear,
convincing and overwhelming evidence, both testimonial and documentary. The
Court takes this occasion also to remind the bench and the bar that reclusion
perpetua is not synonymous with life imprisonment.
The Case
On August 22, 1990, five Informations for kidnapping for ransom (Crim. Case
Nos. 10060, 10061, 10062, 10063 and 10064) and three Informations for
kidnapping (Crim Case Nos. 10065, 10066 and 10067), all dated August 14,
1990, were filed 1 before the Regional Trial Court of Zamboanga City against
Carlos Falcasantos, Jailon Kulais, Jumatiya Amlani, Norma Sahiddan de Kulais,
Jalina Hassan de Kamming, 2 Salvador Mamaril, Hadjirul Plasin, Jaimuddin
Hassan, Imam 3 Taruk Alah, Freddie Manuel alias "Ajid," and several John and
Jane Does. The Informations for kidnapping for ransom, which set forth identical
allegations save for the names of the victims, read as follows:
That on or about the 12th day of December, 1988, in the City of Zamboanga,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, being all private individuals, conspiring and confederating together,
mutually aiding and assisting one another, with threats to kill the person of
FELIX ROSARIO [in Criminal Case No. 10060] 4 and for the purpose of
extorting ransom from the said Felix Rosario or his families or employer, did then
and there, wilfully, unlawfully and feloniously, KIDNAP the person of said Felix
Rosario, 5 a male public officer of the City Government of Zamboanga, who was
then aboard a Cimarron vehicle with plate No. SBZ-976 which was being
ambushed by the herein accused at the highway of Sitio Tigbao Lisomo,
Zamboanga City, and brought said Felix Rosario 6 to different mountainous
places of Zamboanga City and Zamboanga del Sur, where he was detained, held
hostage and deprived of his liberty until February 2, 1989, the day when he was
released only after payment of the ransom was made to herein accused, to the
damage and prejudice of said victim; there being present an aggravating
circumstance in that the aforecited offense was committed with the aid of armed
men or persons who insure or afford impunity.
The three Informations for kidnapping, also under Article 267 of the Revised
Penal Code, likewise alleged identical facts and circumstances, except the names
of the victims:
That on or about the 12th day of December, 1988, in the City of Zamboanga and
within the jurisdiction of this Honorable Court, the above-named accused, being
all private individuals, conspiring and confederating together, mutually aiding
and assisting one another, by means of threats and intimidation of person, did
then and there, wilfully, unlawfully and feloniously KIDNAP, take and drag
away and detain the person of MONICO SAAVEDRA Y LIMEN [Criminal Case
No. 10065] 7 a male public officer of the City Government of Zamboanga, against
his will, there being present an aggravating circumstance in that the aforecited
offense was committed with the aid of armed men or persons who insure or afford
impunity.
Of the twelve accused, only nine were apprehended, namely, Jailon Julais,
Jumatiya Amlani, Norma Sahiddan de Kulais, Salvador Mamaril Hadjirul Plasin,
Jainuddin Hassan, Imam Taruk Alah, Jalina Hassan and Freddie Manuel. 8
On their arraignment on September 13, 1990, all the accused pleaded not guilty.
Joint trial on the merits ensued. On April 8, 1991, Judge Pelagio S. Mandi
rendered the assailed 36-page Decision, the dispositive portion of which reads:
WHEREFORE, above premises and discussion taken into consideration, this
Court renders its judgment, ordering and finding:
1. FREDDIE MANUEL, alias "AJID" and IMAM TARUK ALAH y SALIH
[n]ot [g]uilty of the eight charges of [k]idnapping for [r]ansom and for
[k]idnapping, their guilt not having been proved beyond reasonable doubt.
Their immediate release from the City Jail, Zamboanga City is ordered, unless
detained for some other offense besides these 8 cases (Crim. Cases Nos. 10060-
10067).
2. JAINUDDIN HASSAN y AHMAD, JAILON KULAIS, SALVADOR
MAMARIL y MENDOZA and HADJIRUL PLASIN y ALIH [g]uilty as
principals by conspiracy in all these 8 cases for [k]idnapping for [r]ansom and
for [k]idnapping (Crim. Cases Nos. 10060-10067).
Their guilt is aggravated in that they committed the 8 offenses with the aid of
armed men who insured impunity. Therefore, the penalties imposed on them shall
be at their maximum period.
WHEREFORE, for the five charges of [k]idnapping for [r]ansom, and pursuant
to Art. 267 of the Revised Penal Code, five life imprisonments are imposed on
Jainuddin Hassan y Ahmad, Jailon Kulais, Salvador Mamaril y Mendoza and
Kadjirul Plasin y Alih (Crim. Cases Nos. 10060-10064).
For kidnapping Mrs. Virginia San Agustin-Gara, a female and public officer and
pursuant to Art. 267, Revised Penal Code (par. 4.), another life imprisonment is
imposed on Jainuddin Hassan y Ahmad, Jailon Kulais, Salvador Mamaril y
Mendoza and Hadjirul Plasin y Alih (Crim. Case No. 10066)
For kidnapping Monico Saavedra y Limen, and Calixto Francisco y Gaspar, and
their kidnapping not having lasted more than five days, pursuant to Art. 268,
Revised Penal Code, and the Indeterminate Sentence Law, the same four accused
- Jainuddin Hassan y Ahmad, Jailon Kulais, Salvador Mamaril y Mendoza and
Hadjirul Plasin y Alih - are sentenced to serve two (2) jail terms ranging from ten
To Jessica Calunod:
(10) years of prision mayor as minimum, to eighteen (18) years of reclusion
temporal as maximum (Crim. Cases Nos. 10065 and 10067).
One (1) Seiko wrist watchP P 250.00
3. JAMATIYA AMLANI DE FALCASANTOS [n]ot [g]uilty in the three
charges of [k]idnapping and she is acquitted of these charges. (Crim. Cases Nos.
10065, 10066 and 10067). One Bracelet P 2,400.00

But Jumatiya Amlani de Falcasantos is [g]uilty as accomplice in the five charges

of [k]idnapping for [r]ansom. One Shoulder Bag P 200.00

WHEREFORE, Jumatiya Amlani de Falcasantos is sentenced to serve five (5)

Cash P 200.00
imprisonments, ranging from TEN (10) YEARS of prision mayor as minimum
to EIGHTEEN (18) YEARS of reclusion temporal as maximum (Crim. Cases
Nos. 10060-1 0064). To Armado C. Bacarro:

4. NORMA SAHIDDAN DE KULAIS, 18 years old, and JALIHA HUSSIN

(charged as Jalina Hassan de Kamming), 15 years old, [n]ot [g]uilty in the three One (1) wrist watch P 800.00
charges for [k]idnapping and are, therefore, ACQUITTED of these three charges.
(Crim. Cases Nos. 10065, 10066 & 10067). One Necklace P 300.00
But Norma Sahiddan de Kulais and Jalina Hussin are found [g]uilty as
accomplices in the five charges for [k]idnapping for [r]ansom. Being miners, they One Calculator P 295.00
are entitled to the privileged mitigating circumstance of minority which lowers
the penalty imposable on them by one degree.
Eyeglasses P 500.00
WHEREFORE, Norma Sahiddan de Kulais and Jalina Hussin are sentenced to
serve five imprisonments ranging from SIX (6) YEARS of prision
One Steel Tape P 250.00
correccional as minimum to TEN YEARS AND ONE (1) DAY OF prision
mayor as maximum (Crim. Cases Nos. 10060-10064).
To Edilberto S. Perez:
Due to the removal of the suspension of sentences of youthful offenders
"convicted of an offense punishable by death or life" by Presidential Decree No.
1179 and Presidential Decree No. 1210 (of which [k]idnapping for [r]ansom is One (1) Rayban P 1,000.00
such an offense) the sentences on Norma Sahiddan de Kulais and Jaliha Hussin
de Kamming are NOT suspended but must be served by them. One Wrist WatchP P 1,800.00
Januddin Hassan, Jailon Kulais, Salvador Mamaril and Hadjirul Plasin are
sentenced further to return the following personal effects taken on December 12, Cash P 300.00
1988, the day of the kidnapping, or their value in money, their liability being
solidary.

To Virginia San Agustin-Gara:
One (1)Wrist Watch P 850.00
The benefit of Art. 29, Revised Penal Code, on preventive suspension, shall be
extended to those sentenced.
The cases against Majid Samson, alias "Commander Bungi" Awalon Kamlon
a.k.a. "Commander Kamlon" Carlos Falcasantos and several "John Does" and
Jane "Does" are ARCHIVED until their arrest.
Costs against the accused convicted.
SO ORDERED. 9
On May 7, 1991, Jailon Kulais, Jumatiya Amlani de Falcasantos, Norma
Sahiddan de Kulais and Jaliha Hussin filed their joint Notice of Appeal. 10 In a
letter dated February 6, 1997, the same appellants, except Jailon Kulais, withdrew
their appeal because of their application for "amnesty." In our March 19, 1997
Resolution, we granted their motion. Hence, only the appeal of Kulais remains
for the consideration of this Court. 11
The Facts
The Version of the Prosecution
The solicitor general summarized, in this wise, the facts as viewed by the People:
On December 12, 1988, a group of public officials from various government
agencies, organized themselves as a monitoring team to inspect government
projects in Zamboanga City. The group was composed of Virginia Gara, as the
head of the team; Armando Bacarro, representing the Commission on Audit;
Felix del Rosario, representing the non-government: Edilberto Perez,
representing the City Assessor's Office; Jessica Calunod and Allan Basa of the
City Budget Office and Monico Saavedra, the driver from the City Engineer's
Office. (p. 3, TSN, October 22, 1990.)
On that particular day, the group headed to the Lincomo Elementary School to
check on two of its classrooms. After inspecting the same, they proceeded to the
Talaga Footbridge. The group was not able to reach the place because on their
way, they were stopped by nine (9) armed men who pointed their guns at them
(p. 4, TSN, ibid.).
The group alighted from their Cimarron jeep where they were divested of their
personal belongings. They were then ordered to walk to the mountain by the
leader of the armed men who introduced himself as Commander Falcasantos (p.
5, TSN, ibid.).
While the group was walking in the mountain, they encountered government
troops which caused their group to be divided. Finally, they were able to regroup
themselves. Commander Kamlon with his men joined the others. (pp. 7-8,
TSN, ibid.).
The kidnappers held their captives for fifty-four (54) days in the forest. During
their captivity, the victims were able to recognize their captors who were at all
times armed with guns. The wives of the kidnappers performed the basic chores
like cooking. (pp. 9-10. TSN, ibid.)
Commander Falcasantos also ordered their victims to sign the ransom notes
which demanded a ransom of P100,000.00 and P14,000.00 in exchange for
twenty (20) sets of uniform. (p. 15, TSN, ibid.)
On February 3, 1989, at around 12:00 o'clock noontime, the victims were
informed that they would be released. They started walking until around 7:00
o'clock in the evening of that day. At around 12:00 o'clock midnight, the victims
were released after Commander Falcasantos and Kamlon received the ransom
money. (p. 19, TSN, ibid.) The total amount paid was P122,000.00. The same
was reached after several negotiations between Mayor Vitaliano Agan of
Zamboanga City and the representatives of the kidnappers. (pp. 2, 6, TSN, Nov.
11, 1990)
. . . 12
The prosecution presented fifteen witnesses, including some of the kidnap
victims themselves: Jessica Calunod, Armando Bacarro, Edilberto Perez,
Virginia San Agustin-Gara, Calixto Francisco, and Monico Saavedra.
The Version of the Defense
The facts of the case, according to the defense, are as follows: 13
On May 28, 1990, at about 10:00 o'clock in the morning, while weeding their
farm in Sinaburan, Zamboanga del Sur, accused-appellant Jumatiya Amlani was
picked up by soldiers and brought to a place where one army battalion was
stationed. Thereat, her five (5) co-accused, namely Salvador Mamaril, Hadjirul
Plasin, Jainuddin Hassin, Imam Taruk Alah and Freddie Manuel were already
detained. In the afternoon of the same day, appellants spouses Jailon Kulais and
Norma Sahiddan were brought to the battalion station and likewise detained
thereat. On May 30, 1990, the eight (8) accused were transported to Metrodiscom,
Zamboanga City. Here on the same date, they were joined by accused-appellant
Jaliha Hussin.
At the time Amlani was picked up by the military, she had just escaped from the
captivity of Carlos Falcasantos and company who in 1988 kidnapped and brought
her to the mountains. Against their will, she stayed with Falcasantos and his two
wives for two months, during which she slept with Falcasantos as aide of the
wives and was made to cook food, wash clothes, fetch water and run other errands
for everybody. An armed guard was assigned to watch her, so that, for sometime,
she had to bear the ill-treatment of Falcasantos' other wives one of whom was
armed. After about two months, while she was cooking and Falcasantos and his
two wives were bathing in the river, and while her guard was not looking, she
took her chance and made a successful dash for freedom. (TSN, January 29, 1992,
pp. 2-15)
Likewise a kidnap victim herself is accused-appellant Jaliha Hussin, who was
thirteen years old at the time (she was fifteen years old when the trial of the instant
cases commenced). She was kidnapped by Daing Kamming and brought to the
mountains where he slept with her. She stayed with him for less than a month
sleeping on forest ground and otherwise performing housekeeping errands for
Kamming and his men. She made good her escape during an encounter between
the group of Kamming and military troops. She hid in the bushes and came out
at Ligui-an where she took a "bachelor" bus in going back to her mother's house
at Pudos, Guiligan, Tungawan, Zamboanga del Sur. One day, at around 2:00
o'clock in the afternoon, while she was harvesting palay at the neighboring village
of Tigbalangao, military men picked her up to Ticbanuang where there was an
army battalion detachment. From Ticbawuang, she was brought to Vitali, then to
Metrodiscom, Zamboanga City, where on her arrival, she met all the other
accused for the first time except Freddie Manuel. (Ibid., pp. 16-21)
Another female accused is appellant Norma Sahiddan, a native of Sinaburan,
Tungawan, Zamboanga del Sur. At about 3:00 o'clock in the afternoon of a day
in May, while she and her husband were in their farm, soldiers arrested them. The
soldiers did not tell them why they were being arrested, neither were they shown
any papers. The two of them were just made to board a six by six truck. There
were no other civilians in the truck. The truck brought the spouses to the army
battalion and placed them inside the building where there were civilians and
soldiers. Among the civilians present were her six co-accused Hadjirul Plasin,
Salvador Mamaril, Jaimuddin Hassan, Ima[m] Taruk Alah, Freddie Manuel and
Jumatiya Amlani. That night, the eight of them were brought to Tictapul,
Zamboanga City; then to Vitali; and, finally, to the Metrodiscom, Zamboanga
City where they stayed for six days and six nights. On the seventh day, the
accused were brought to the City Jail, Zamboanga City. (TSN, January 30, 1991,
pp. 6-11)
The husband of Norma Sahiddan is Jailon Kulais who, as heretofore narrated,
was arrested with his wife the day the soldiers came to their farm on May 28,
1990. He has shared with his wife the ordeals that followed in the wake of their
arrest and in the duration of their confinement up to the present. (TSN, January
22, 1991 pp. 2-4).
The Trial Court's Ruling
The trial court found Appellant Kulais guilty of five counts of kidnapping for
ransom and one count of kidnapping a woman and public officer, for which
offenses it imposed upon him six terms of "life imprisonment." It also found him
guilty of two counts of slight illegal detention for the kidnapping of Monico
Saavedra and Calixto Francisco. The trial court ratiocinated as follows:
Principally, the issue here is one of credibility - both of the witnesses and their
version of what had happened on December 12, 1988, to February 3, 1989. On
this pivotal issue, the Court gives credence to [p]rosecution witnesses and their
testimonies. Prosecution evidence is positive, clear and convincing. No taint of
evil or dishonest motive was imputed or imputable to [p]rosecution witnesses. To
this Court, who saw all the witnesses testify, [p]rosecution witnesses testified
only because they were impelled by [a] sense of justice, of duty and of truth.
Contrarily, [d]efense evidence is weak, uncorroborated and consisted only of
alibis. The individual testimonies of the nine accused dwel[t] principally on what
happened to each of them on May 27, 28 and 29, 1990. None of the accused
explained where he or she was on and from December 12, 1988, to February 3,
1989, when [p]rosecution evidence show[ed] positively seven of the nine accused
were keeping the five or six hostages named by [p]rosecution evidence.
The seven accused positively identified to have been present during the course of
the captivity of the five kidnap-victims-complainants are: (1) Jumatiya Amlani;
(2) Jaliha Hussin; (3) Norma Sahiddan; (4) Jailon Kulais; (5) Hadjirul Plasin; (6)
Salvador Mamaril and (7) Jainuddin Hassan.
The two accused not positively identified are: Freddie Manuel alias "Ajid", and
Imam Taruk Alah. These two must, therefore, be declared acquitted based on
reasonable doubt.
The next important issue to be examined is: Are these seven accused guilty as
conspirators as charged in the eight Informations; or only as accomplices?
Prosecution evidence shows that the kidnapping group to which the seven
accused belonged had formed themselves into an armed band for the purpose of
kidnapping for ransom. This armed band had cut themselves off from established
communities, lived in the mountains and forests, moved from place to place in
order to hide their hostages. The wives of these armed band moved along with
their husbands, attending to their needs, giving them material and moral support.
These wives also attended to the needs of the kidnap victims, sleeping with them
or comforting them.
xxx xxx xxx
II The guilt of Jainuddin Hassan, Jailon Kulais, Salvador Mamaril and Hadjirul
Plasin. The Court holds these four men guilty as conspirators in the 8 cases of
kidnapping. Unlike the three women-accused, these male accused were armed.
They actively participated in keeping their hostages by fighting off the military
and CAFGUS, in transferring their hostages from place to place, and in guarding
the kidnap hostages. Salvador Mamaril and Jailon Kulais were positively
identified as among the nine armed men who had kidnapped the eight kidnap
victims on December 12, 1988.
The higher degree of participation found by the Court of the four accused is
supported by the rulings of our Supreme Court quoted below.
(1) The time-honored jurisprudence is that direct proof is not essential to prove
conspiracy. It may be shown by a number of infinite acts, conditions and
circumstances which may vary according to the purposes to be accomplished and
from which may logically be inferred that there was a common design,
understanding or agreement among the conspirators to commit the offense
charged. (People vs. Cabrera, 43 Phil 64; People vs. Carbonel, 48 Phil. 868.)
(2) The crime must, therefore, in view of the solidarity of the act and intent which
existed between the sixteen accused, be regarded as the act of the band or party
created by them, and they are all equally responsible for the murder in question.
(U.S. vs. Bundal, et. al. 3 Phil 89, 98.)
(3) When two or more persons unite to accomplish a criminal object, whether
through the physical volition of one, or all, proceeding severally or collectively,
each individual whose evil will actively contribute to the wrongdoing is in law
responsible for the whole, the same as though performed by himself alone.
(People vs. Peralta, et. al. 25 SCRA 759, 772 (1968).) 14
The Assigned Errors
The trial court is faulted with the following errors, viz:
I
The trial court erred in taking judicial notice of a material testimony given in
another case by Lt. Melquiades Feliciano, who allegedly was the team leader of
the government troops which allegedly captured the accused-appellants in an
encounter; thereby, depriving the accused-appellants their right to cross-examine
him.
II
On the assumption that Lt. Feliciano's testimony could be validly taken judicial
notice of, the trial court, nevertheless, erred in not disregarding the same for being
highly improbable and contradictory.
III
The trial court erred in finding that accused-appellants Jumatiya Amlani, Jaliha
Hussin and Norma Sahiddan provided Carlos Falcasantos, et. al., with material
and moral comfort, hence, are guilty as accomplices in all the kidnapping for
ransom cases.
IV
The trial court erred in denying to accused-appellant Jaliha Hussin and Norma
Sahiddan the benefits of suspension of sentence given to youth offenders
considering that they were minors at the time of the commission of the offense. 15
As earlier noted, Jumatiya Amlani, Jaliha Hussin and Norma Sahiddan had
withdrawn their appeal, and as such, the third and fourth assigned errors, which
pertain to them only, will no longer be dealt with. Only the following issues
pertaining to Appellant Jailon Kulais will be discussed: (1) judicial notice of other
pending cases, (2) sufficiency of the prosecution evidence, and (3) denial as a
defense. In addition, the Court will pass upon the propriety of the penalty imposed
by the trial court.
The Court's Ruling
The appeal is bereft of merit.
First Issue:
Judicial Notice and Denial of Due Process
Appellant Kulais argues that he was denied due process when the trial court took
judicial notice of the testimony given in another case by one Lt. Melquiades
Feliciano, who was the team leader of the government troops that captured him
and his purported cohorts. 16 Because he was allegedly deprived of his right to
cross-examine a material witness in the person of Lieutenant Feliciano, he
contends that the latter's testimony should not be used against him. 17
True, as a general rule, courts should not take judicial notice of the evidence
presented in other proceedings, even if these have been tried or are pending in
the same court, or have been heard and are actually pending before the same
judge. 18 This is especially true in criminal cases, where the accused has the
constitutional right to confront and cross-examine the witnesses against him.
Having said that, we note, however, that even if the court a quo did take judicial
notice of the testimony of Lieutenant Feliciano, it did not use such testimony in
deciding the cases against the appellant. Hence, Appellant Kulais was not denied
due process. His conviction was based mainly on the positive identification made
by some of the kidnap victims, namely, Jessica Calunod, Armando Bacarro and
Edilberto Perez. These witnesses were subjected to meticulous cross-
examinations conducted by appellant's counsel. At best, then, the trial court's
mention of Lieutenant Feliciano's testimony is a decisional surplusage which
neither affected the outcome of the case nor substantially prejudiced Appellant
Kulais.
Second Issue:
Sufficiency of Prosecution Evidence
Appellant was positively identified by Calunod, as shown by the latter's
testimony:
CP CAJAYON D MS:
Q And how long were you in the custody of these persons?
A We stayed with them for fifty-four days.
Q And during those days did you come to know any of the persons who were
with the group?
A We came to know almost all of them considering we stayed there for fifty-four
days.
Q And can you please name to us some of them or how you know them?
A For example, aside from Commander Falcasantos and Commander Kamlon we
came to know first our foster parents, those who were assigned to give us some
food.
Q You mean to say that the captors assigned you some men who will take care
of you?
A Yes.
Q And to whom were you assigned?
A To Ila Abdurasa.
Q And other than your foster [parents] or the parents whom you are assigned to,
who else did you come to know?
A Pagal and his wife; Tangkong and his wife Nana; the two (2) wives of
Commander Falcasantos - Mating and Janira - another brother in-law of
Commander Kamlon, Usman, the wife of Kamlon, Tira.
xxx xxx xxx
Q Now, you said that you were with these men for fifty-four days and you really
came to know them. Will you still be able to recognize these persons if you will
see the[m] again?
A Yes, ma'am. A Some of the armed men assigned who will be the host or who will be the one
[to] g[i]ve food to us.
Q Now will you look around this Honorable Court and see if any of those you
mentioned are here? Q [To] whom were you assigned?

A Yes, they are here. A I was assigned to a certain Tangkong and [his] wife Nana.

Q Some of them are here? xxx xxx xxx

A Some of them are here. Q Now, you said you were assigned to Tangkong and his wife. [D]o you
remember how he looks like?
xxx xxx xxx
A Yes.
Q Where is Tangkong? What is he wearing?
Q Now, will you please look around this Court and tell us if that said Tangkong
A White t-shirt with orange collar. (witness pointing.) He was one of those nine and his wife are here?
armed men who took us from the highway.
A Yes, ma'am.
RTC INTERPRETER:
Q Could you please point this Tangkong to us?
Witness pointed to a man sitting in court and when asked of his name, he gave
his name as JAILON KULAIS. A Witness pointed to a person in Court. [W]hen asked his name he identified
[himself] as Jailon Kulais.
CP CAJAYON D MS:
Q Why did you say his name is Tangkong? Where did you get that name?
Q Aside from being with the armed men who stopped the vehicle and made you
alight, what else was he doing while you were in their captivity? A Well, that is the name [by which he is] usually called in the camp.

A He was the foster parent of Armando Bacarro and the husband of Nana. xxx xxx xxx

COURT: ATTY. FABIAN (counsel for accused Kulais)

Q Who? Q When did you first meet Tangkong?

A Tangkong. A That was on December 11, because I remember he was the one who took us.

xxx xxx xxx 19 Q When you were questioned by the fiscal a while ago, you stated that Mr.
Mamaril was one of those who stopped the bus and took you to the hill and you
Likewise clear and straightforward was Bacarro's testimony pointing to appellant did not mention Tangkong?
as one of the culprits:
A I did not mention but I can remember his face.
FISCAL CAJAYON:
xxx xxx xxx
xxx xxx xxx

Q And what happened then?

Q And because Tangkong was always with you as your host even if he did not Q And among the 9 armed men who held you on your way to [the] Talaga
tell you that he [was] one of those who stopped you, you would not recognize Footbridge, you stated [that] one of them [was] Commander Falcasantos?
him?
A Yes.
A No, I can recognize him because he was the one who took my shoes.
Q Could you also recognize anyone of the accused in that group?
COURT:
A Yes.
Q Who?
Q Will you please identify?
A Tangkong, your Honor.
A That one, Tangkong. (The witness pointed to a man sitting in court who
xxx xxx xxx 20 identified himself as Jailon Kulais.)

Also straightforward was Ernesto Perez' candid narration: xxx xxx xxx

FISCAL CAJAYON: CROSS-EXAMINATION BY ATTY. FABIAN.

xxx xxx xxx Q You said Jailon Kulais was among those who guarded the camp?

Q Who else? FISCAL CAJAYON:

A The last man. Your Honor, please, he does not know the name of Julais, he used the word
Tangkong.
Q Did you come to know his name?
ATTY. FABIAN
A Only his nickname, Tangkong. (Witness pointed to a man in Court who
identified himself as Jailon Kulais.) Q You said Tangkong guarded you[. W]hat do you mean?

Q And what was Tangkong doing in the mountain?
A The same, guarding us.
CROSS-EXAMINATION BY ATTY. SAHAK.
Q Engr. Perez, you stated that you were ambushed by nine armed men on your
way from [the] Licomo to [the] Talaga Foot Bridge. [W]hat do you mean by
ambushed?
A I mean that they blocked our way and stopped.
Q They did not fire any shots?
A But they were pointing their guns at us.
A He guarded us like prisoners[. A]fter guarding us they have their time two
hours another will be on duty guarding us.
Q Where did you meet Tangkong?
A He was one of the armed men who kidnapped us.
xxx xxx xxx 21
It is evident from the foregoing testimonies of Calunod, Bacarro and Perez that
kidnapping or detention did take place: the five victims were held, against their
will, for fifty-three days from December 12, 1988 to February 2, 1989. It is also
evident that Appellant Kulais was a member of the group of armed men who
staged the kidnapping, and that he was one of those who guarded the victims
during the entire period of their captivity. His participation gives credence to the
conclusion of the trial court that he was a conspirator.
Kidnapping
for Ransom
That the kidnapping of the five was committed for the purpose of extorting
ransom is also apparent from the testimony of Calunod, who was quite emphatic
in identifying the accused and narrating the circumstances surrounding the
writing of the ransom letters.
CP CAJAYON D MS:
Q Now, you were in their captivity for 54 days and you said there were these
meetings for possible negotiation with the City Government. What do you mean
by this? What were you supposed to negotiate?
22
A Because they told us that they will be releasing us only after the terms.
Q And what were the terms? Did you come to know the terms?
A I came to know the terms because I was the one ordered by Commander
Falcasantos to write the letter, the ransom letter.
Q At this point of time, you remember how many letters were you asked to write
for your ransom?
A I could not remember as to how many, but I can identify them.
Q Why will you able to identify the same?
A Because I was the one who wrote it.
Q And you are familiar, of course, with your penmanship?
A Yes.
Q Now we have here some letters which were turned over to us by the Honorable
City Mayor Vitaliano Agan. 1,2,3,4,5 - there are five letters all handwritten.
COURT:
Original?
CP CAJAYON D MS:
Original, your Honor.
Q And we would like you to go over these and say, tell us if any of these were
the ones you were asked to write.
A (Witness going over [letters])
This one - 2 pages. This one - 2 pages. No more.
Q Aside from the fact that you identified your penmanship in these letters, what
else will make you remember that these are really the ones you wrote while there?
A The signature is there.
Q There is a printed name here[,] Jessica Calunod.
A And over it is a signature.
Q That is your signature?
A Yes, ma'am.
Q How about in the other letter, did you sign it also?
A Yes, there is the other signature.
Q There are names - other names here - Eddie Perez, Allan Basa, Armando
Bacarro, Felix Rosario, Jojie Ortuoste and there are signatures above the same.
Did you come up to know who signed this one?
A Those whose signatures there were signed by the persons. [sic].
Q And we have here at the bottom, Commander Kamlon Hassan, and there is the
signature above the same. Did you come to know who signed it?
A [It was] Commander Kamlon Hassan who signed that.
xxx xxx xxx
Q Jessica, I am going over this letter . . . Could you please read to us the portion
here which says the terms? . . .
A (Witness reading) "Mao ilang gusto nga andamun na ninyo ang kantidad nga
P100,000 ug P14,000 baylo sa 20 sets nga uniforms sa Biyernes (Pebrero 3,
1989). 23
INTERPRETER (Translation):
This is what they like you to prepare[:] the amount of P100,000.00 and
P14,000.00 in exchange [for] 20 sets of uniform on Friday, February 3, 1989.
xxx xxx xxx
Q Now you also earlier identified this other letter and this is dated January 21,
1988. 24 Now, could you please explain to us why it is dated January 21, 1988
and the other one Enero 31, 1989 or January 31, 1989?
A I did not realize that I placed 1989, 1988, but it was 1989.
Q January 21, 1989?
A Yes.
xxx xxx xxx
Q Now, in this letter, were the terms also mentioned?
Please go over this.
A (Going over the letter)
Yes, ma'am.
Q Could you please read it aloud to us?
A (Witness reading)
Gusto nila and P100,000.00 ng kapinan nu ug 20 sets nga completong uniformer
(7 colors marine type wala nay labot ang sapatos), tunga medium ug tunga large
size. 25
INTERPRETER:
They like the P100,000.00 and an addition of 20 sets of complete uniform (7
colors, marine-type not including the shoes), one half medium, one half large.
xxx xxx xxx
Q After having written these letters, did you come to know after [they were]
signed by your companions and all of you, do you know if these letters were sent?
If you know only.
A I would like to make it clear. The first letter was ordered to me by Falcasantos
to inform the City Mayor that initial as P500,000.00, and when we were already
- I was asked again to write, we were ordered to affix our signature to serve as
proof that all of us are alive. 26 [sic]
Calunod's testimony was substantially corroborated by both Armando
Bacarro 27 and Edilberto Perez. 28 The receipt of the ransom letters, the efforts
made to raise and deliver the ransom, and the release of the hostages upon
payment of the money were testified to by Zamboanga City Mayor Vitaliano
Agan 29 and Teddy Mejia. 30
The elements of kidnapping for ransom, as embodied in Article 267 of the
Revised Penal Code, 31 having been sufficiently proven, and the appellant, a
private individual, having been clearly identified by the kidnap victims, this
Court thus affirms the trial court's finding of appellant's guilt on five counts of
kidnapping for ransom.
Kidnapping of
Public Officers
Victims Virginia San Agustin-Gara, Monico Saavedra and Calixto Francisco
were members of the government monitoring team abducted by appellant's group.
The three testified to the fact of kidnapping; however, they were not able to
identify the appellant. Even so, appellant's identity as one of the kidnappers was
sufficiently established by Calunod, Bacarro and Perez, who were with Gara,
Saavedra and Francisco when the abduction occurred.
That Gara, Saavedra and Francisco were detained for only three hours 32 does nor
matter. In People vs. Domasian, 33 the victim was similarly held for three hours,
and was released even before his parents received the ransom note. The accused
therein argued that they could not be held guilty of kidnapping as no enclosure
was involved, and that only grave coercion was committed, if at all. 34 Convicting
appellants of kidnapping or serious illegal detention under Art. 267 (4) of the
Revised Penal Code, the Court found that the victim, an eight-year-old boy, was
deprived of his liberty when he was restrained from going home. The Court
justified the conviction by holding that the offense consisted not only in placing
a person in an enclosure, but also in detaining or depriving him, in any manner,
of his liberty. 35 Likewise, in People vs. Santos, 36 the Court held that since the
appellant was charged and convicted under Article 267, paragraph 4, it was not
the duration of the deprivation of liberty which was important, but the fact that
the victim, a minor, was locked up.
Thus, in the present case, the detention of Gara, Saavedra and Francisco for only
a few hours is immaterial. The clear fact is that the victims were public
officers 37 - Gara was a fiscal analyst for the City of Zamboanga, Saavedra
worked at the City Engineer's Office, and Francisco was a barangay councilman
at the time the kidnapping occurred. Appellant Kulais should be punished,
therefore, under Article 267, paragraph 4 of the Revised Penal Code, and not Art,
268, as the trial court held.
The present case is different from People vs. Astorga, 38 which held that the crime
committed was not kidnapping under Article 267, paragraph 4, but only grave
coercion. The appellant in that case had tricked his seven-year-old victim into
going with him to a place he alone knew. His plans, however, were foiled when
a group of people became suspicious and rescued the girl from him. The Court
noted that the victim's testimony and the other pieces of evidence did not indicate
that the appellant wanted to detain her, or that he actually detained her.
In the present case, the evidence presented by the prosecution indubitably
established that the victims were detained, albeit for a few hours. There is proof
beyond reasonable doubt that kidnapping took place, and that appellant was
a member of the armed group which abducted the victims.
Third Issue:
Denial and Alibi
The appellant's bare denial is a weak defense that becomes even weaker in the
face of the prosecution witnesses' positive identification of him. Jurisprudence
gives greater weight to the positive narration of prosecution witnesses than to the
negative testimonies of the defense. 39 Between positive and categorical
testimony which has a ring of truth to it on the one hand, and a bare denial on the
other, the former generally prevails. 40 Jessica Calunod, Armando Bacarro and
Edilberto Perez testified in a clear, straightforward and frank manner; and their
testimonies were compatible on material points. Moreover, no ill motive was
attributed to the kidnap victims and none was found by this Court.
We agree with the trial court's observation that the appellant did not meet the
charges against him head on. His testimony dwelt on what happened to him on
the day he was arrested and on subsequent days thereafter. Appellant did not
explain where he was during the questioned dates (December 12, 1988 to
February 3, 1989); neither did he rebut Calunod, Bacarro and Perez, when they
identified him as one of their kidnappers.
Reclusion Perpetua, Not Life Imprisonment
The trial court erred when it sentenced the appellant to six terms of life
imprisonment. The penalty for kidnapping with ransom, under the Revised Penal
Code, is reclusion perpetua to death. Since the crimes happened in 1988, when
the capital penalty was proscribed by the Constitution, the maximum penalty that
could have been imposed was reclusion perpetua. Life imprisonment is not
synonymous with reclusion perpetua. Unlike life imprisonment, reclusion
perpetua carries with it accessory penalties provided in the Revised Penal Code
and has a definite extent or duration. Life imprisonment is invariably imposed for
serious offenses penalized by special laws, while reclusion perpetua is
prescribed in accordance with the Revised Penal Code. 41
WHEREFORE, the conviction of Appellant Jailon Kulais as principal in five
counts of kidnapping for ransom and in three counts of kidnapping is
AFFIRMED, but the penalty imposed is hereby MODIFIED as follows:
Appellant is sentenced to five terms of reclusion perpetua, one for each of his
five convictions for kidnapping for ransom; and to three terms of reclusion
perpetua, one each for the kidnapping of Public Officers Virginia Gara, Monico
Saavedra and Calixto Francisco. Like the other accused who withdrew their
appeals, he is REQUIRED to return the personal effects, or their monetary value,
taken from the kidnap victims. Additionally, he is ORDERED to pay the amount
of P122,000 representing the ransom money paid to the kidnappers. Costs against
appellant.
SO ORDERED.
Notes--When the prosecution’s cause is weak, an accused’s alibi assumes
importance and becomes crucial in negating his criminal liability, and his alibi
should be considered for there are times where an accused has no other possible
defense but alibi, as that could really be the truth. (People vs. Adofina, 239 SCRA
67 [1994])
The exception to the right of confrontation contemplated by law covers only the
utilization of testimonies of absent witnesses made in previous proceedings, and
does not include utilization of previous decisions or judgments. (People vs. Ortiz-
Miyake, 279 SCRA 180 [1997]) People vs. Kulais, 292 SCRA 551, G.R. Nos.
100901-08 July 16, 1998
 RULE 129 Sec.4
JUDICIAL ADMISSION
G.R. No. 74336. April 7, 1997.
J. ANTONIO AGUENZA, petitioner, vs. METROPOLITAN BANK &
TRUST CO., VITALIADO P. ARRIETA, LILIA PEREZ, PATRICIO
PEREZ and THE INTERMEDIATE APPELLATE COURT, respondents.
Remedial Law; Pleadings and Practice; Rule that the allegations, statements, or
admissions contained in a pleading are conclusive as against the pleader is not an
absolute and inflexible rule and is subject to exceptions.—The general rule that
“the allegations, statements, or admissions contained in a pleading are conclusive
as against the pleader” is not an absolute and inflexible rule and is subject to
exceptions.
Same; Same; An admission in a pleading on which a party goes to trial may be
contradicted by showing that it was made by improvidence or mistake or that no
such admission was made.—In other words, an admission in a pleading on which
a party goes to trial may be contradicted by showing that it was made by
improvidence or mistake or that no such admission was made, i.e., “not in the
sense in which the admission was made to appear or the admission was taken out
of context.”
Same; Same; In the absence of such ratification or authority, such admission does
not bind the corporation.—In any event, assuming arguendo that the responsive
pleading did contain the aforesaid admission of corporate liability, the same may
not still be given effect at all. As correctly found by the trial court, the alleged
admission made in the answer by the counsel for Intertrade was “without any
enabling act or attendant ratification of corporate act,” as would authorize or even
ratify such admission. In the absence of such ratification or authority, such
admission does not bind the corporation.
Same; Same; Ratification can never be made on the part of the corporation by the
same persons who wrongfully assume the power to make the contract, but the
ratification must be by the officer as governing body having authority to make
such contract.—The respondent appellate court likewise adjudged Intertrade
liable because of the two letters emanating from the office of Mr. Arrieta which
the respondent court considered “as indicating the corporate liability of the
corporation.” These documents and admissions cannot have the effect of a
ratification of an unauthorized act. As we elucidated in the case of Vicente v.
Geraldez, “ratification can never be made on the part of the corporation by the
same persons who wrongfully assume the power to make the contract, but the
ratification must be by the officer as governing body having authority to make
such contract.” In other words, the unauthorized act of respondent Arrieta can
only be ratified by the action of the Board of Directors and/or petitioner Aguenza
jointly with private respondent Arrieta. Aguenza vs. Metropolitan Bank & Trust
Co., 271 SCRA 1, G.R. No. 74336 April 7, 1997
Before us is a petition for review on certiorari seeking the reversal of the
Decision1 of the Intermediate Appellate Court (now the Court of
Appeals)2 finding petitioner J. Antonio Aguenza liable under a continuing surety
agreement to pay private respondent Metropolitan Bank & Trust Company
(hereafter, Metrobank) a loan jointly obtained by the General Manager and a
bookkeeper of Intertrade a corporation of which petitioner is President and in
whose behalf petitioner had, in the past, obtained credit lines.
The following facts are not disputed:
On February 28, 1977, the Board of Directors of Intertrade, through a Board
Resolution, authorized and empowered petitioner and private respondent
Vitaliado Arrieta, Intertrade's President and Executive Vice-President,
respectively, to jointly apply for and open credit lines with private respondent
Metrobank. Pursuant to such authority, petitioner and private respondent Arrieta
executed several trust receipts from May to June, 1977, the aggregate value of
which amounted to P562,443.46, with Intertrade as the entrustee and private
respondent Metrobank as the entruster.
On March 14, 1977, petitioner and private respondent Arrieta executed a
Continuing Suretyship Agreement whereby both bound themselves jointly and
severally with Intertrade to pay private respondent Metrobank whatever
obligation Intertrade incurs, but not exceeding the amount P750,000.00.
In this connection, private respondent Metrobank's Debit Memo to Intertrade
dated March 22, 1978 showed full settlement of the letters of credit covered by
said trust receipts in the total amount P562,443.46.
On March 21, 1978, private respondents Arrieta and Lilia P. Perez, bookkeeper
in the employ of Intertrade, obtained P500,000.00 loan from private respondent
Metrobank. Both executed Promissory Note in favor or said bank in the amount
of P500,000,00. Under said note, private respondents Arrieta and Perez promised
to pay said amount, jointly and severally, in twenty five (25) equal installments
of P20,000.00 each starting on April 20, 1979 with interest of 18.704% per
annum, and in case of default, a further 8 % per annum.
Private respondents Arrieta and Perez defaulted in the payment of several
installments thus resulting in the entire obligation becoming due and demandable.
In 1979, private respondent Metrobank instituted suit against Intertrade,
Vitaliado Arrieta, Lilia Perez and her husband, Patricio Perez, to collect not only
the unpaid principal obligation, but also interests, fees and penalties, exemplary
damages, as well as attorney's fees and costs of suit.
More than a year after private respondent Metrobank filed its original complaint,
it filed an Amended Complaint dated August 30, 1980 for the sole purpose of
impleading petitioner as liable for the loan made by private respondents Arrieta
and Perez on March 21, 1978, notwithstanding the fact that such liability is being
claimed on account of a Continuing Suretyship Agreement dated March 14, 1977
executed by petitioner and private respondent Arrieta especifically to guarantee
the credit line applied for by and granted to, Intertrade, through petitioner and
private respondent Arrieta who were specially given authority by Intertrade on
February 28, 1977 to open credit lines with private respondent Metrobank. The
obligations incurred by Intertrade under such credit lines were completely paid
as evidenced by private respondent Metrobank's debit memo in the full amount
of P562,443.46.
After hearing on the merits, the trial court rendered its decision absolving
petitioner from liability and dismissing private respondent Metrobank's
complaint against him, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered as follows:
1) Declaring that the Promissory Note dated March 21, 1978, marked as Exhibit
A is the responsibility only of defendant Vitaliado P. Arrieta and Lilia P. Perez,
in their personal capacity and to the exclusion of defendant Intertrade and
Marketing Co., Inc.;
2) Ordering defendants Vitaliado P. Arrieta and Lilia P. Perez to pay, jointly and
severally, the plaintiff the sum of P1,062,898.92, due, of September 15, 1982,
plus interest, fees and penalties due from that date pursuant to the stipulations in
the promissory note until the whole obligations shall have been paid and finally
settled;
3) Ordering defendants Vitaliado P. Arrieta and Lilia Perez to pay, jointly and
severally, the plaintiff the sum of P44,000.00 by way of attorney's fees and other
litigation expenses, albeit there is no award for exemplary damages;
4) Declaring defendant Patricio Perez, as conjugal partner of defendant Lilia
Perez, as jointly and severally liable with her for what the latter is ordered to pay
per this Decision;
5) Dismissing this case insofar as defendants Intertrade and Marketing Co., Inc.
and J. Antonio Aguenza are concerned, although their respective counterclaims
against the plaintiff are also ordered dismissed.
Costs of suit shall be paid, jointly and severally, by defendant Vitaliado Arrieta
and Lilia Perez.
SO ORDERED.3
Private respondents Arrieta and spouses Perez appealed the foregoing decision to
the respondent Court of Appeals.
On February 11, 1986, respondent appellate court promulgated the herein
assailed decision, the dispositive portion of which reads:
WHEREFORE, the appealed decision is SET ASIDE and another one entered
ordering Intertrade & Marketing Co., Inc., and J. Antonio Aguenza, jointly and
severally:
1) to pay the Bank the principal of P440,000.00 plus its interest of 18.704% per
annum computed from April 15, 1979 until full payment;
2) to pay the Bank the sum equivalent to 8% of P440,000.00 as penalty, computed
from July 19, 1978 until full payment;
3) to pay the Bank the sum of P15,000.00 as attorney's fees.
The complaint is dismissed as against Lilia Perez, Patricio Perez and Vitaliado P.
Arrieta who are absolved from liability.
All counterclaims are dismissed.
Costs against Intertrade and Aguenza, jointly and severally.
SO ORDERED.
In setting aside the decision of the trial court, respondent Court of Appeals
ratiocinated such reversal in this wise:
No dispute exists as to the promissory note and the suretyship agreement. The
controversy centers on whether the note was a corporate undertaking and whether
the suretyship agreement covered the obligation in the note.
As far as Intertrade is concerned, it seems clear from its answer that the loan
evidenced by the note was a corporate liability. Paragraph 1.3 of the answer
admits ". . . defendant's obtention of the loan from the plaintiff . . ."; the
affirmative defenses admit default, and invoking the defense of usury, plead
adjustment of excessive interest which Intertrade refused to make.
On the basis of this admission, it is no longer in point to discuss, as the appealed
decision does, the question of the capacity in which Arrieta and Perez signed the
promissory note, Intertrade's admission of its corporate liability being admission
also that the signatories signed the note in a representative capacity. The Bank
itself gave corroboration with its insistence on Intertrade's liability under the note.
..
The stated purpose of the note is "operating capital." It cannot be contended that
the words "operating capital" refer to the capital requirements of Perez and
Arrieta. In the first place, it was not shown that they were in business for
themselves. Besides, Perez was only a bookkeeper of Intertrade with a salary of
P800.00 a month . . . Their combined resources would not have been sufficient
to justify a business loan of the note's magnitude. From these follows the only
logical conclusion: that Arrieta and the Perez spouses are not liable on the note.
The surety agreement presents a different problem.
There is no question that Aguenza signed the agreement . . . Its second paragraph
shows, typewritten in bold capitals, that the agreement was executed "for and in
consideration of any existing indebtedness to the Bank of INTERTRADE &
MARKETING COMPANY, INC." Nowhere in its entire text is it shown that its
execution was for the benefit of Perez or Arrieta.
Aguenza feigns ignorance of the promissory note and claims his knowledge of it
came only when he received summons. This is difficult to believe. As Intertrade's
first letter to the Bank . . . shows, the Board of Directors and principal
stockholders met to discuss the obligation. Aguenza was at the time president of
Intertrade and acting chairman of its board . . .
Aguenza also argues that the suretyship was executed to enable Intertrade to avail
of letters of credit to finance importations, which had all been paid in full, and
therefore the agreement was thereby terminated. Again, the agreement shows up
the fallacy of this argument. The document is boldly denominated
"CONTINUING SURETYSHIP," and paragraph VI thereof stipulates it to be a
continuing one, "to remain in force until written notice shall have been received
by the Bank that it has been revoked by the surety . . . " In other words, the option
to cancel, in writing, was given to the sureties; the evidence does not show any
written notice of such cancellation. . . .
And, the argument that the agreement was executed as security for letters of credit
that had already been paid is in itself confirmation that the suretyship was meant
to benefit Intertrade. The trust receipts . . . and the bills of exchange . . . are all in
the name of Intertrade.
The suretyship is both retrospective and prospective in its operation. Its wording
covers all obligations of Intertrade existing as of its date as well as those that may
exist thereafter. Hence, its coverage extends to the promissory note as well.4
Understandably, petitioner lost no time in bringing this case before us via a
petition for review on certiorari on the following grounds:
THE RESPONDENT COURT ERRED IN REVERSING AND [SETTING]
ASIDE THE FINDING OF THE TRIAL COURT THAT THE LOAN OF
P500,000.00 PROCURED 21 MARCH 1978 BY RESPONDENTS
VITALIADO ARRIETA AND LILIA PEREZ IS NOT A CORPORATE
LIABILITY OF RESPONDENT INTERTRADE AND THAT PETITIONER IS
NOT LIABLE THEREON UNDER THE "CONTINUING SURETYSHIP
AGREEMENT" DATED 4 MARCH 1977.
THE CONCLUSION OF THE RESPONDENT COURT THAT THE LOAN OF
P500,000.00 PROCURED 21 MARCH 1978 BY RESPONDENT VITALIADO
ARRIETA AND LILIA PEREZ IS A CORPORATE LIABILITY OF
RESPONDENT INTERTRADE AND CONSEQUENTLY RENDERING
PETITIONER LIABLE IN HIS PERSONAL CAPACITY AS A SURETY
UNDER THE "CONTINUING SURETYSHIP" OF 4 MARCH 1977, IS
GROSSLY ERRONEOUS AND PREMISED ON A MISAPPREHENSION OF
FACTS.
THE CONCLUSIONS AND CONSTRUCTION REACHED BY
RESPONDENT COURT FROM THE FACTS AND EVIDENCE OF RECORD,
ARE INCORRECT RESULTING IN AN ERRONEOUS DECISION
GRAVELY PREJUDICIAL TO THE SUBSTANTIAL RIGHTS OF
PETITIONER.5
The petition has merit,.
The principal reason for respondent appellate court's reversal of the trial court's
absolution of petitioner is its finding that the loan made by private respondent
Arrieta and Lilia Perez were admitted by Intertrade to be its own obligation.
After a careful scrutiny of the records, however, we find and we so rule that there
is neither factual nor legal basis for such a finding by respondent Appellate Court.
First, the general rule that "the allegations, statements, or admissions contained
in a pleading are conclusive as against the pleader" 6 is not an absolute and
inflexible rule7 and is subject to exceptions. Rule 129, Section 4, of the Rules of
Evidence, provides:
Sec. 4. Judicial admissions. — An admission, verbal or written, made by a party
in the course of the proceedings in the same case, does not require proof. The
admission may be contradicted only by showing that it was made through
palpable mistake or that no such admission was made. (Emphasis supplied).
In other words, an admission in a pleading on which a party goes to trial may be
contradicted by showing that it was made by improvidence or mistake or that no
such admission was made, i.e., "not in the sense in which the admission was made
to appear or the admission was taken out of context." 8
In the case at bench, we find that the respondent Court of Appeals committed an
error in appreciating the "Answer" filed by the lawyer of Intertrade as an
admission of corporate liability for the subject loan. A careful study of the
responsive pleading filed by Atty. Francisco Pangilinan, counsel for Intertrade,
would reveal that there was neither express nor implied admission of corporate
liability warranting the application of the general rule. Thus, the alleged judicial
admission may be contradicted and controverted because it was taken out of
context and no admission was made at all.
In any event, assuming arguendo that the responsive pleading did contain the
aforesaid admission of corporate liability, the same may not still be given effect
at all. As correctly found by the trial court, the alleged admission made in the
answer by the counsel for Intertrade was "without any enabling act or attendant
ratification of corporate act,"9 as would authorize or even ratify such admission.
In the absence of such ratification or authority, such admission does not bind the
corporation.
Second, the respondent appellate court likewise adjudged Intertrade liable
because of the two letters emanating from the office of Mr. Arrieta which the
respondent court considered "as indicating the corporate liability of the
corporation." 10 These documents and admissions cannot have the effect of a
ratification of an unauthorized act. As we elucidated in the case of Vicente
v. Geraldez, 11 "ratification can never be made on the part of the corporation by
the same persons who wrongfully assume the power to make the contract, but the
ratification must be by the officer as governing body having authority to make
such contract." In other words, the unauthorized act of respondent Arrieta can
only be ratified by the action of the Board of Directors and/or petitioner Aguenza
jointly with private respondent Arrieta.
We must emphasize that Intertrade has a distinct personality separate from its
members. The corporation transacts its business only through its officers or
agents. Whatever authority these officers or agents may have is derived from the
Board of Directors or other governing body unless conferred by the charter of the
corporation. An officer's power as an agent of the corporation must be sought
from the statute, charter, the by-laws, as in a delegation of authority to such
officer, or the acts of the Board of Directors formally expressed or implied from
a habit or custom of doing business. 12
Thirdly, we note that the only document to evidence the subject transaction was
the promissory note dated March 21, 1978 signed by private respondents Arrieta
and Lilia Perez. There is no indication in said document as to what capacity the
two signatories had in affixing their signatures thereon.
It is noted that the subject transaction is a loan contract for P500,000.00 under
terms and conditions which are stringent, if not onerous. The power to borrow
money is one of those cases where even a special power of attorney is
required. 13 In the instant case, them is invariably a need of an enabling act of the
corporation to be approved by its Board of Directors. As round by the trial court,
the records of this case is bereft of any evidence that Intertrade through its Board
of Directors, conferred upon Arrieta and Lilia Perez the authority to contract a
loan with Metrobank and execute the promissory note as a security therefor.
Neither a board resolution nor a stockholder's resolution was presented by
Metrobank to show that Arrieta and Lilia Perez were empowered by Intertrade to
execute the promissory note. 14
The respondents may argue that the actuation of Arrieta and Liliah Perez was in
accordance with the ordinary course of business usages and practices of
Intertrade. However, this contention is devoid of merit because the prevailing
practice in Intertrade was to explicitly authorize an officer to contract loans in
behalf of the corporation. This is evidenced by the fact that previous to the
controversy, the Intertrade Board of Directors, through a board resolution, jointly
empowered and authorized petitioner and respondent Arrieta to negotiate, apply
for, and open credit lines with Metrobank's. 15 The participation of these two was
mandated to be joint and not separate and individual.

In the case at bench, only respondent Arrieta, together with a bookkeeper of the
corporation, signed the promissory notes, without the participation and approval
of petitioner Aguenza. Moreover, the enabling corporate act on this particular
transaction has not been obtained. Neither has it been shown that any provision
of the charter or any other act of the Board of Directors exists to confer power on
the Executive Vice President acting alone and without the concurrence of its
President, to execute the disputed document. 16

Thus, proceeding from the premise that the subject loan was not the responsibility
of Intertrade, it follows that the undertaking of Arrieta and the bookkeeper was
not an undertaking covered by the Continuing Suretyship Agreement. The rule is
that a contract of surety is never presumed; it must be express and cannot extend
to more than what is stipulated, 17 It is strictly construed against the creditor,
every doubt being resolved against enlarging the liability of the surety.

The present obligation incurred in subject contract of loan, as secured by the

Arrieta and Perez promissory note, is not the obligation of the corporation and
petitioner Aguenza, but the individual and personal obligation of private
respondents Arrieta and Lilia Perez.

WHEREFORE, the petition is GRANTED, and the questioned decision of the

Court of Appeals 18 dated February 11, 1986 is REVERSED and SET ASIDE.
The judgment of the trial court dated February 29, 1984 is hereby REINSTATED.

No Costs.

SO ORDERED.
G.R. No. 87434. August 5, 1992
PHILIPPINE AMERICAN GENERAL INSURANCE CO., INC. and
TAGUM PLASTICS, INC., petitioners, vs. SWEET LINES, INC., DAVAO
VETERANS ARRASTRE AND PORT SERVICES, INC. and HON.
COURT OF APPEALS, respondents.
Remedial Law; Civil Procedure; Actionable documents; Bills of lading can be
categorized as actionable documents which under the Rules must be properly
pleaded either as causes of action or defenses, and the genuineness and due
execution of which are deemed admitted unless specifically denied under oath by
the adverse party.—As petitioners are suing upon SLI’s contractual obligation
under the contract of carriage as contained in the bills of lading, such bills of
lading can be categorized as actionable documents which under the Rules must
be properly pleaded either as causes of action or defenses, and the genuineness
and due execution of which are deemed admitted unless specifically denied under
oath by the adverse party. The rules on actionable documents cover and apply to
both a cause of action or defense based on said documents.
Same; Same; Same; Judicial admissions; Judicial admissions, verbal or written,
made by the parties in the pleadings or in the course of the trial or other
proceedings in the same case are conclusive, no evidence being required to prove
the same, and cannot be contradicted unless shown to have been made through
palpable mistake or that no such admission was made.—Petitioners’ failure to
specifically deny the existence, much less the genuineness and due execution, of
the instruments in question amounts to an admission. Judicial admissions, verbal
or written, made by the parties in the pleadings or in the course of the trial or
other proceedings in the same case are conclusive, no evidence being required to
prove the same, and cannot be contradicted unless shown to have been made
through palpable mistake or that no such admission was made. Moreover, when
the due execution and genuineness of an instrument are deemed admitted because
of the adverse party’s failure to make a specific verified denial thereof, the
instrument need not be presented formally in evidence for it may be considered
an admitted fact.
Same; Same; Same; Negative Pregnant; Negative pregnant is a denial pregnant
with the admission of the substantial facts in the pleading responded to which are
not squarely denied.—Even granting that petitioners’ averment in their reply
amounts to a denial, it has the procedural earmarks of what in the law on
pleadings is called a negative pregnant, that is, a denial pregnant with the
admission of the substantial facts in the pleading responded to which are not
squarely denied. It is in effect an admission of the averment it is directed to. Thus,
while petitioners objected to the validity of such agreement for being contrary to
public policy, the existence of the bills of lading and said stipulations were
nevertheless impliedly admitted by them.
Same; Same; Same; Formal offer of evidence; The non-inclusion of the
controverted bills of lading in the formal offer of evidence cannot be considered
a fatal procedural lapse as would bar respondent carrier from raising the defense
of prescription.—We find merit in respondent court’s comments that petitioners
failed to touch on the matter of the non-presentation of the bills of lading in their
brief and earlier on in the appellate proceedings in this case, hence it is too late
in the day to now allow the litigation to be overturned on that score, for to do so
would mean an over-indulgence in technicalities. Hence, for the reasons already
advanced, the non-inclusion of the controverted bills of lading in the formal offer
of evidence cannot, under the facts of this particular case, be considered a fatal
procedural lapse as would bar respondent carrier from raising the defense of
prescription. Petitioners’ feigned ignorance of the provisions of the bills of
lading, particularly on the time limitations for filing a claim and for commencing
a suit in court, as their excuse for non-compliance therewith does not deserve
serious attention.
Same; Same; Right of action; The right of action does not arise until the
performance of all conditions precedent to the action and may be taken away by
the running of the statute of limitations, through estoppel, or by other
circumstances which do not affect the cause of action.—It bears restating that a
right of action is the right to pre-sently enforce a cause of action, while a cause
of action, while a cause of action consists of the operative facts which give rise
to such right of action. The right of action does not arise until the performance of
all conditions precedent to the action and may be taken away by the running of
the statute of limitations, through estoppel, or by other circumstances which do
not affect the cause of action. Performance or fulfillment of all conditions
precedent upon which a right of action depends must be sufficiently alleged,
considering that the burden of proof to show that a party has a right of action is
upon the person initiating the suit.
Maritime Commerce; Contract of Shipment; Notice of loss or injury to the goods;
Notice of loss or injury protects the carrier by affording it an opportunity to make
an investigation of a claim while the matter is fresh and easily investigated so as
to safeguard itself from false and fraudulent claim.—More particularly, where
the contract of shipment contains a reasonable requirement of giving notice of
loss of or injury to the goods, the giving of such notice is a condition precedent
to the action for loss or injury or the right to enforce the carrier’s liability. Such
requirement is not an empty formalism. The fundamental reason or purpose of
such a stipulation is not to relieve the carrier from just liability, but reasonably to
inform it that the shipment has been damaged and that it is charged with liability
therefor, and to give it an opportunity to examine the nature and extent of the
injury. This protects the carrier by affording it an opportunity to make an
investigation of a claim while the matter is fresh and easily investigated so as to
safeguard itself from false and fraudulent claims.
Same; Same; Same; Remedial Law; Civil Procedure; Action; Prescription; The
findings of respondent court as supported by petitioner’s formal offer of evidence
in the court below show that the claim was filed with Sweet Lines Incorporated
only on April 28, 1978, way beyond the period provided in the bills of lading and
violative of the contractual provision, the inevitable loss of which is the loss of
petitioner’s remedy or right to sue.—The shipment in question was discharged
into the custody of the consignee on May 15, 1977, and it was from this date that
petitioners’ cause of action accrued, with thirty (30) days therefrom within which
to file a claim with the carrier for any loss or damage which may have been
suffered by the cargo and thereby perfect their right of action. The findings of
respondent court as supported by petitioners’ formal offer of evidence in the court
below show that the claim was filed with SLI only on April 28, 1978, way beyond
the period provided in the bills of lading and violative of the contractual
provision, the inevitable consequence of which is the loss of petitioners’ remedy
or right to sue. Even the filing of the complaint on May 12, 1978 is of no remedial
or practical consequence, since the time limits for the filing thereof whether
viewed as a condition precedent or as a prescriptive period, would in this case be
productive of the same result, that is, that petitioners had no right of action to
begin with or, at any rate, their claim was time-barred.
Same; Same; Notice of claim under Art. 366 of the Code of Commerce; Non-
compliance with the requirement of filing a notice of claim under Art. 366 of the
Code of Commerce does not affect the consignee’s right of action against the
carrier.—As explained above, the shortened period for filing suit is not
unreasonable and has in fact been generally recognized to be a valid business
practice in the shipping industry. Petitioners’ advertence to the Court’s holding
in the Southern Lines case, supra, is futile as what was involved was a claim for
refund of excess payment. We ruled therein that non-compliance with the
requirement of filing a notice of claim under Article 366 of the Code of
Commerce does not affect the consignee’s right of action against the carrier
because said requirement applies only to cases for recovery of damages on
account of loss of or damage to cargo, not to an action for refund of overpayment,
and on the further consideration that neither the Code of Commerce nor the bills
of lading therein provided any time limitation for suing for refund of money paid
in excess, except only that it be filed within a reasonable time.
Same; Remedial Law; Venue of action; Contract of adhesion; Contracts of
adhesion wherein one party imposes a ready-made form of contract on the other
are contracts not entirely prohibited.—The ruling in Sweet Lines categorizing the
stipulated limitation on venue of action provided in the subject bill of lading as a
contract of adhesion and, under the circumstances therein, void for being contrary
to public policy is evidently likewise unavailing in view of the discrete
environmental facts involved and the fact that the restriction therein was
unreasonable. In any case, Ong Yiu vs. Court of Appeals, et al., instructs us that
“contracts of adhesion wherein one party imposes a ready-made form of contract
on the other x x x are contracts not entirely prohibited. The one who adheres to
the contract is in reality free to reject it entirely; if he adheres he gives his
consent.” In the present case, not even an allegation of ignorance of a party
excuses non-compliance with the contractual stipulations since the responsibility
for ensuring full comprehension of the provisions of a contract of carriage
devolves not on the carrier but on the owner, shipper, or consignee as the case
may be. Philippine American General Insurance Co., Inc. vs. Sweet Lines, Inc.,
212 SCRA 194, G.R. No. 87434 August 5, 1992
A maritime suit 1 was commenced on May 12, 1978 by herein Petitioner
Philippine American General Insurance Co., Inc. (Philamgen) and Tagum
Plastics, Inc. (TPI) against private respondents Sweet Lines, Inc. (SLI) and Davao
Veterans Arrastre and Port Services, Inc. (DVAPSI), along with S.C.I. Line (The
Shipping Corporation of India Limited) and F.E. Zuellig, Inc., as co-defendants
in the court a quo, seeking recovery of the cost of lost or damaged shipment plus
exemplary damages, attorney's fees and costs allegedly due to defendants'
negligence, with the following factual backdrop yielded by the findings of the
court below and adopted by respondent court:
It would appear that in or about March 1977, the vessel SS "VISHVA YASH"
belonging to or operated by the foreign common carrier, took on board at Baton
Rouge, LA, two (2) consignments of cargoes for shipment to Manila and later for
transhipment to Davao City, consisting of 600 bags Low Density Polyethylene
631 and another 6,400 bags Low Density Polyethylene 647, both consigned to
the order of Far East Bank and Trust Company of Manila, with arrival notice to
Tagum Plastics, Inc., Madaum, Tagum, Davao City. Said cargoes were covered,
respectively, by Bills of Lading Nos. 6 and 7 issued by the foreign common
carrier (Exhs. E and F). The necessary packing or Weight List (Exhs. A and B),
as well as the Commercial Invoices (Exhs. C and D) accompanied the shipment.
The cargoes were likewise insured by the Tagum Plastics Inc. with plaintiff
Philippine American General Insurance Co., Inc., (Exh. G).
In the course of time, the said vessel arrived at Manila and discharged its cargoes
in the Port of Manila for transhipment to Davao City. For this purpose, the foreign
carrier awaited and made use of the services of the vessel called M/V "Sweet
Love" owned and operated by defendant interisland carrier.
Subject cargoes were loaded in Holds Nos. 2 and 3 of the interisland carrier.
These were commingled with similar cargoes belonging to Evergreen Plantation
and also Standfilco.
On May 15, 1977, the shipment(s) were discharged from the interisland carrier
into the custody of the consignee. A later survey conducted on July 8, 1977, upon
the instance of the plaintiff, shows the following:
Of the cargo covered by Bill of Lading No. 25 or (2)6, supposed to contain 6,400
bags of Low Density Polyethylene 647 originally inside 160 pallets, there were
delivered to the consignee 5,413 bags in good order condition. The survey shows
shortages, damages and losses to be as follows:
Undelivered/Damaged bags as tallied during discharge from vessel-173 bags;
undelivered and damaged as noted and observed whilst stored at the pier-699
bags; and shortlanded-110 bags (Exhs. P and P-1).
Of the 600 bags of Low Density Polyethylene 631, the survey conducted on the
same day shows an actual delivery to the consignee of only 507 bags in good
order condition. Likewise noted were the following losses, damages and
shortages, to wit:
Undelivered/damaged bags and tally sheets during discharge from vessel-17
bags.
Undelivered and damaged as noted and observed whilst stored at the pier-66
bags; Shortlanded-10 bags.
Therefore, of said shipment totalling 7,000 bags, originally contained in 175
pallets, only a total of 5,820 bags were delivered to the consignee in good order
condition, leaving a balance of 1,080 bags. Such loss from this particular
shipment is what any or all defendants may be answerable to (sic).
As already stated, some bags were either shortlanded or were missing, and some
of the 1,080 bags were torn, the contents thereof partly spilled or were
fully/partially emptied, but, worse, the contents thereof contaminated with
foreign matters and therefore could no longer serve their intended purpose. The
position taken by the consignee was that even those bags which still had some
contents were considered as total losses as the remaining contents were
contaminated with foreign matters and therefore did not (sic) longer serve the
intended purpose of the material. Each bag was valued, taking into account the
customs duties and other taxes paid as well as charges and the conversion value
then of a dollar to the peso, at P110.28 per bag (see Exhs. L and L-1 M and O). 2
Before trial, a compromise agreement was entered into between petitioners, as
plaintiffs, and defendants S.C.I. Line and F.E. Zuellig, upon the latter's payment
of P532.65 in settlement of the claim against them. Whereupon, the trial court in
its order of August 12, 1981 3 granted plaintiffs' motion to dismiss grounded on
said amicable settlement and the case as to S.C.I. Line and F.E. Zuellig was
consequently "dismissed with prejudice and without pronouncement as to costs."
The trial court thereafter rendered judgment in favor of herein petitioners on this
dispositive portion:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff Philippine
General American Insurance Company Inc. and against the remaining
defendants, Sweet Lines Inc. and Davao Veterans Arrastre Inc. as follows:
Defendant Sweet Lines, Inc. is ordered to pay said plaintiff the sum of
P34,902.00, with legal interest thereon from date of extrajudicial demand on
April 28, 1978 (Exh. M) until fully paid;
Defendant Sweet Lines Inc. and Davao Veterans Arrastre and (Port) Services Inc.
are directed to pay jointly and severally, the plaintiff the sum of P49,747.55, with
legal interest thereon from April 28, 1978 until fully paid;
Each of said defendants are ordered to pay the plaintiffs the additional sum of
P5,000 is reimbursable attorney's fees and other litigation expenses;
Each of said defendants shall pay one-fourth (1/4) costs. 4
Due to the reversal on appeal by respondent court of the trial court's decision on
the ground of prescription, 5 in effect dismissing the complaint of herein
petitioners, and the denial of their motion for reconsideration, 6 petitioners filed
the instant petition for review on certiorari, faulting respondent appellate court
with the following errors: (1) in upholding, without proof, the existence of the
so-called prescriptive period; (2) granting arguendo that the said prescriptive
period does exist, in not finding the same to be null and void; and (3)
assuming arguendo that the said prescriptive period is valid and legal, in failing
to conclude that petitioners substantially complied therewith. 7
Parenthetically, we observe that herein petitioners are jointly pursuing this case,
considering their common interest in the shipment subject of the present
controversy, to obviate any question as to who the real party in interest is and to
protect their respective rights as insurer and insured. In any case, there is no
impediment to the legal standing of Petitioner Philamgen, even if it alone were
to sue herein private respondents in its own capacity as insurer, it having been
subrogated to all rights of recovery for loss of or damage to the shipment insured
under its Marine Risk Note No. 438734 dated March 31, 1977 8 in view of the
full settlement of the claim thereunder as evidenced by the subrogation
receipt 9 issued in its favor by Far East Bank and Trust Co., Davao Branch, for
the account of petitioner TPI.
Upon payment of the loss covered by the policy, the insurer's entitlement to
subrogation pro tanto, being of the highest equity, equips it with a cause of action
against a third party in case of contractual breach. 10 Further, the insurer's
subrogatory right to sue for recovery under the bill of lading in case of loss of or
damage to the cargo is jurisprudentially upheld. 11 However, if an insurer, in the
exercise of its subrogatory right, may proceed against the erring carrier and for
all intents and purposes stands in the place and in substitution of the consignee, a
fortiori such insurer is presumed to know and is just as bound by the contractual
terms under the bill of lading as the insured.
On the first issue, petitioners contend that it was error for the Court of Appeals
to reverse the appealed decision on the supposed ground of prescription when
SLI failed to adduce any evidence in support thereof and that the bills of lading
said to contain the shortened periods for filing a claim and for instituting a court
action against the carrier were never offered in evidence. Considering that the
existence and tenor of this stipulation on the aforesaid periods have allegedly not
been established, petitioners maintain that it is inconceivable how they can
possibly comply therewith. 12 In refutation, SLI avers that it is standard practice
in its operations to issue bills of lading for shipments entrusted to it for carriage
and that it in fact issued bills of lading numbered MD-25 and MD-26 therefor
with proof of their existence manifest in the records of the case. 13 For its part,
DVAPSI insists on the propriety of the dismissal of the complaint as to it due to
petitioners' failure to prove its direct responsibility for the loss of and/or damage
to the cargo. 14
On this point, in denying petitioner's motion for reconsideration, the Court of
Appeals resolved that although the bills of lading were not offered in evidence,
the litigation obviously revolves on such bills of lading which are practically the
documents or contracts sued upon, hence, they are inevitably involved and their
provisions cannot be disregarded in the determination of the relative rights of the
parties thereto. 15
Respondent court correctly passed upon the matter of prescription, since that
defense was so considered and controverted by the parties. This issue may
accordingly be taken cognizance of by the court even if not inceptively raised as
a defense so long as its existence is plainly apparent on the face of relevant
pleadings. 16 In the case at bar, prescription as an affirmative defense was
seasonably raised by SLI in its answer, 17 except that the bills of lading
embodying the same were not formally offered in evidence, thus reducing the
bone of contention to whether or not prescription can be maintained as such
defense and, as in this case, consequently upheld on the strength of mere
references thereto.
As petitioners are suing upon SLI's contractual obligation under the contract of
carriage as contained in the bills of lading, such bills of lading can be categorized
as actionable documents which under the Rules must be properly pleaded either
as causes of action or defenses, 18 and the genuineness and due execution of
which are deemed admitted unless specifically denied under oath by the adverse
party. 19 The rules on actionable documents cover and apply to both a cause of
action or defense based on said documents. 20
In the present case and under the aforestated assumption that the time limit
involved is a prescriptive period, respondent carrier duly raised prescription as
an affirmative defense in its answer setting forth paragraph 5 of the pertinent bills
of lading which comprised the stipulation thereon by parties, to wit:
5. Claims for shortage, damage, must be made at the time of delivery to consignee
or agent, if container shows exterior signs of damage or shortage. Claims for non-
delivery, misdelivery, loss or damage must be filed within 30 days from accrual.
Suits arising from shortage, damage or loss, non-delivery or misdelivery shall be
instituted within 60 days from date of accrual of right of action. Failure to file
claims or institute judicial proceedings as herein provided constitutes waiver of
claim or right of action. In no case shall carrier be liable for any delay, non-
delivery, misdelivery, loss of damage to cargo while cargo is not in actual custody
of carrier. 21
In their reply thereto, herein petitioners, by their own assertions that —
2. In connection with Pars. 14 and 15 of defendant Sweet Lines, Inc.'s Answer,
plaintiffs state that such agreements are what the Supreme Court considers as
contracts of adhesion (see Sweet Lines, Inc. vs. Hon. Bernardo Teves, et al., G.R.
No. L-37750, May 19, 1978) and, consequently, the provisions therein which are
contrary to law and public policy cannot be availed of by answering defendant as
valid defenses. 22
thereby failed to controvert the existence of the bills of lading and the aforequoted
provisions therein, hence they impliedly admitted the same when they merely
assailed the validity of subject stipulations.
Petitioners' failure to specifically deny the existence, much less the genuineness
and due execution, of the instruments in question amounts to an admission.
Judicial admissions, verbal or written, made by the parties in the pleadings or in
the course of the trial or other proceedings in the same case are conclusive, no
evidence being required to prove the same, and cannot be contradicted unless
shown to have been made through palpable mistake or that no such admission
was made. 23 Moreover, when the due execution and genuineness of an
instrument are deemed admitted because of the adverse party's failure to make a
specific verified denial thereof, the instrument need not be presented formally in
evidence for it may be considered an admitted fact. 24
Even granting that petitioners' averment in their reply amounts to a denial, it has
the procedural earmarks of what in the law on pleadings is called a negative
pregnant, that is, a denial pregnant with the admission of the substantial facts in
the pleading responded to which are not squarely denied. It is in effect an
admission of the averment it is directed to. 25 Thus, while petitioners objected to
the validity of such agreement for being contrary to public policy, the existence
of the bills of lading and said stipulations were nevertheless impliedly admitted
by them.
We find merit in respondent court's comments that petitioners failed to touch on
the matter of the non-presentation of the bills of lading in their brief and earlier
on in the appellate proceedings in this case, hence it is too late in the day to now
allow the litigation to be overturned on that score, for to do so would mean an
over-indulgence in technicalities. Hence, for the reasons already advanced, the
non-inclusion of the controverted bills of lading in the formal offer of evidence
cannot, under the facts of this particular case, be considered a fatal procedural
lapse as would bar respondent carrier from raising the defense of prescription.
Petitioners' feigned ignorance of the provisions of the bills of lading, particularly
on the time limitations for filing a claim and for commencing a suit in court, as
their excuse for non-compliance therewith does not deserve serious attention.
It is to be noted that the carriage of the cargo involved was effected pursuant to
an "Application for Delivery of Cargoes without Original Bill of Lading" issued
on May 20, 1977 in Davao City 26 with the notation therein that said application
corresponds to and is subject to the terms of bills of lading MD-25 and MD-26.
It would be a safe assessment to interpret this to mean that, sight unseen,
petitioners acknowledged the existence of said bills of lading. By having the
cargo shipped on respondent carrier's vessel and later making a claim for loss on
the basis of the bills of lading, petitioners for all intents and purposes accepted
said bills. Having done so they are bound by all stipulations contained
therein. 27 Verily, as petitioners are suing for recovery on the contract, and in fact
even went as far as assailing its validity by categorizing it as a contract of
adhesion, then they necessarily admit that there is such a contract, their
knowledge of the existence of which with its attendant stipulations they cannot
now be allowed to deny.
On the issue of the validity of the controverted paragraph 5 of the bills of lading
above quoted which unequivocally prescribes a time frame of thirty (30) days for
filing a claim with the carrier in case of loss of or damage to the cargo and sixty
(60) days from accrual of the right of action for instituting an action in court,
which periods must concur, petitioners posit that the alleged shorter prescriptive
period which is in the nature of a limitation on petitioners' right of recovery is
unreasonable and that SLI has the burden of proving otherwise, citing the earlier
case of Southern Lines, Inc. vs. Court of Appeals, et al. 28 They postulate this on
the theory that the bills of lading containing the same constitute contracts of
adhesion and are, therefore, void for being contrary to public policy, supposedly
pursuant to the dictum in Sweet Lines, Inc. vs. Teves, et al. 29
Furthermore, they contend, since the liability of private respondents has been
clearly established, to bar petitioners' right of recovery on a mere technicality will
pave the way for unjust enrichment. 30 Contrarily, SLI asserts and defends the
reasonableness of the time limitation within which claims should be filed with
the carrier; the necessity for the same, as this condition for the carrier's liability
is uniformly adopted by nearly all shipping companies if they are to survive the
concomitant rigors and risks of the shipping industry; and the countervailing
balance afforded by such stipulation to the legal presumption of negligence under
which the carrier labors in the event of loss of or damage to the cargo. 31
It has long been held that Article 366 of the Code of Commerce applies not only
to overland and river transportation but also to maritime
transportation. 32 Moreover, we agree that in this jurisdiction, as viewed from
another angle, it is more accurate to state that the filing of a claim with the carrier
within the time limitation therefor under Article 366 actually constitutes a
condition precedent to the accrual of a right of action against a carrier for
damages caused to the merchandise. The shipper or the consignee must allege
and prove the fulfillment of the condition and if he omits such allegations and
proof, no right of action against the carrier can accrue in his favor. As the
requirements in Article 366, restated with a slight modification in the assailed
paragraph 5 of the bills of lading, are reasonable conditions precedent, they are
not limitations of action. 33 Being conditions precedent, their performance must
precede a suit for enforcement 34 and the vesting of the right to file spit does not
take place until the happening of these conditions. 35
Now, before an action can properly be commenced all the essential elements of
the cause of action must be in existence, that is, the cause of action must be
complete. All valid conditions precedent to the institution of the particular action,
whether prescribed by statute, fixed by agreement of the parties or implied by
law must be performed or complied with before commencing the action, unless
the conduct of the adverse party has been such as to prevent or waive performance
or excuse non-performance of the condition. 36
It bears restating that a right of action is the right to presently enforce a cause of
action, while a cause of action consists of the operative facts which give rise to
such right of action. The right of action does not arise until the performance of
all conditions precedent to the action and may be taken away by the running of
the statute of limitations, through estoppel, or by other circumstances which do
not affect the cause of action. 37 Performance or fulfillment of all conditions
precedent upon which a right of action depends must be sufficiently
alleged, 38 considering that the burden of proof to show that a party has a right of
action is upon the person initiating the suit. 39
More particularly, where the contract of shipment contains a reasonable
requirement of giving notice of loss of or injury to the goods, the giving of such
notice is a condition precedent to the action for loss or injury or the right to
enforce the carrier's liability. Such requirement is not an empty formalism. The
fundamental reason or purpose of such a stipulation is not to relieve the carrier
from just liability, but reasonably to inform it that the shipment has been damaged
and that it is charged with liability therefor, and to give it an opportunity to
examine the nature and extent of the injury. This protects the carrier by affording
it an opportunity to make an investigation of a claim while the matter is fresh and
easily investigated so as to safeguard itself from false and fraudulent claims. 40
Stipulations in bills of lading or other contracts of shipment which require notice
of claim for loss of or damage to goods shipped in order to impose liability on
the carrier operate to prevent the enforcement of the contract when not complied
with, that is, notice is a condition precedent and the carrier is not liable if notice
is not given in accordance with the stipulation, 41 as the failure to comply with
such a stipulation in a contract of carriage with respect to notice of loss or claim
for damage bars recovery for the loss or damage suffered. 42
On the other hand, the validity of a contractual limitation of time for filing the
suit itself against a carrier shorter than the statutory period therefor has generally
been upheld as such stipulation merely affects the shipper's remedy and does not
affect the liability of the carrier. In the absence of any statutory limitation and
subject only to the requirement on the reasonableness of the stipulated limitation
period, the parties to a contract of carriage may fix by agreement a shorter time
for the bringing of suit on a claim for the loss of or damage to the shipment than
that provided by the statute of limitations. Such limitation is not contrary to public
policy for it does not in any way defeat the complete vestiture of the right to
recover, but merely requires the assertion of that right by action at an earlier
period than would be necessary to defeat it through the operation of the ordinary
statute of limitations. 43
In the case at bar, there is neither any showing of compliance by petitioners with
the requirement for the filing of a notice of claim within the prescribed period nor
any allegation to that effect. It may then be said that while petitioners may
possibly have a cause of action, for failure to comply with the above condition
precedent they lost whatever right of action they may have in their favor or, token
in another sense, that remedial right or right to relief had prescribed. 44
The shipment in question was discharged into the custody of the consignee on
May 15, 1977, and it was from this date that petitioners' cause of action accrued,
with thirty (30) days therefrom within which to file a claim with the carrier for
any loss or damage which may have been suffered by the cargo and thereby
perfect their right of action. The findings of respondent court as supported by
petitioners' formal offer of evidence in the court below show that the claim was
filed with SLI only on April 28, 1978, way beyond the period provided in the
bills of lading 45 and violative of the contractual provision, the inevitable
consequence of which is the loss of petitioners' remedy or right to sue. Even the
filing of the complaint on May 12, 1978 is of no remedial or practical
consequence, since the time limits for the filing thereof, whether viewed as a
condition precedent or as a prescriptive period, would in this case be productive
of the same result, that is, that petitioners had no right of action to begin with or,
at any rate, their claim was time-barred.
What the court finds rather odd is the fact that petitioner TPI filed a provisional
claim with DVAPSI as early as June 14, 1977 46 and, as found by the trial court,
a survey fixing the extent of loss of and/or damage to the cargo was conducted
on July 8, 1977 at the instance of petitioners. 47 If petitioners had the opportunity
and awareness to file such provisional claim and to cause a survey to be
conducted soon after the discharge of the cargo, then they could very easily have
filed the necessary formal, or even a provisional, claim with SLI itself 48 within
the stipulated period therefor, instead of doing so only on April 28, 1978 despite
the vessel's arrival at the port of destination on May 15, 1977. Their failure to
timely act brings us to no inference other than the fact that petitioners slept on
their rights and they must now face the consequences of such inaction.
The ratiocination of the Court of Appeals on this aspect is worth reproducing:
xxx xxx xxx
It must be noted, at this juncture, that the aforestated time limitation in the
presentation of claim for loss or damage, is but a restatement of the rule
prescribed under Art. 366 of the Code of Commerce which reads as follows:
Art. 366. Within the twenty-four hours following the receipt of the merchandise,
the claim against the carrier for damage or average which may be found therein
upon opening the packages, may be made, provided that the indications of the
damage or average which gives rise to the claim cannot be ascertained from the
outside part of the packages, in which case the claims shall be admitted only at
the time of the receipt.
After the periods mentioned have elapsed, or the transportation charges have been
paid, no claim shall be admitted against the carrier with regard to the condition
in which the goods transported were delivered.
Gleanable therefrom is the fact that subject stipulation even lengthened the period
for presentation of claims thereunder. Such modification has been sanctioned by
the Supreme Court. In the case of Ong Yet (M)ua Hardware Co., Inc. vs. Mitsui
Steamship Co., Ltd., et al., 59 O.G. No. 17, p. 2764, it ruled that Art. 366 of the
Code of Commerce can be modified by a bill of lading prescribing the period of
90 days after arrival of the ship, for filing of written claim with the carrier or
agent, instead of the 24-hour time limit after delivery provided in the aforecited
legal provision.
Tested, too, under paragraph 5 of said Bill of Lading, it is crystal clear that the
commencement of the instant suit on May 12, 1978 was indeed fatally late. In
view of the express provision that "suits arising from
. . . damage or loss shall be instituted within 60 days from date of accrual of right
of action," the present action necessarily fails on ground of prescription.
In the absence of constitutional or statutory prohibition, it is usually held or
recognized that it is competent for the parties to a contract of shipment to agree
on a limitation of time shorter than the statutory period, within which action for
breach of the contract shall be brought, and such limitation will be enforced if
reasonable . . . (13 C.J.S. 496-497)
A perusal of the pertinent provisions of law on the matter would disclose that
there is no constitutional or statutory prohibition infirming paragraph 5 of subject
Bill of Lading. The stipulated period of 60 days is reasonable enough for
appellees to ascertain the facts and thereafter to sue, if need be, and the 60-day
period agreed upon by the parties which shortened the statutory period within
which to bring action for breach of contract is valid and binding. . . . (Emphasis
in the original text.) 49
As explained above, the shortened period for filing suit is not unreasonable and
has in fact been generally recognized to be a valid business practice in the
shipping industry. Petitioners' advertence to the Court's holding in the Southern
Lines case, supra, is futile as what was involved was a claim for refund of excess
payment. We ruled therein that non-compliance with the requirement of filing a
notice of claim under Article 366 of the Code of Commerce does not affect the
consignee's right of action against the carrier because said requirement applies
only to cases for recovery of damages on account of loss of or damage to cargo,
not to an action for refund of overpayment, and on the further consideration that
neither the Code of Commerce nor the bills of lading therein provided any time
limitation for suing for refund of money paid in excess, except only that it be filed
within a reasonable time.
The ruling in Sweet Lines categorizing the stipulated limitation on venue of
action provided in the subject bill of lading as a contract of adhesion and, under
the circumstances therein, void for being contrary to public policy is evidently
likewise unavailing in view of the discrete environmental facts involved and the
fact that the restriction therein was unreasonable. In any case, Ong Yiu vs. Court
of Appeals, et al., 50 instructs us that "contracts of adhesion wherein one party
imposes a ready-made form of contract on the other . . . are contracts not entirely
prohibited. The one who adheres to the contract is in reality free to reject it
entirely; if he adheres he gives his consent." In the present case, not even an
allegation of ignorance of a party excuses non-compliance with the contractual
stipulations since the responsibility for ensuring full comprehension of the
provisions of a contract of carriage devolves not on the carrier but on the owner,
shipper, or consignee as the case may be.
While it is true that substantial compliance with provisions on filing of claim for
loss of or damage to cargo may sometimes suffice, the invocation of such an
assumption must be viewed vis-a-vis the object or purpose which such a
provision seeks to attain and that is to afford the carrier a reasonable opportunity
to determine the merits and validity of the claim and to protect itself against
unfounded impositions. 51 Petitioners' would nevertheless adopt an adamant
posture hinged on the issuance by SLI of a "Report on Losses and Damages,"
dated May 15, 1977, 52 from which petitioners theorize that this charges private
respondents with actual knowledge of the loss and damage involved in the present
case as would obviate the need for or render superfluous the filing of a claim
within the stipulated period.
Withal, it has merely to be pointed out that the aforementioned report bears this
notation at the lower part thereof: "Damaged by Mla. labor upon unloading; B/L
noted at port of origin," as an explanation for the cause of loss of and/or damage
to the cargo, together with an iterative note stating that "(t)his Copy should be
submitted together with your claim invoice or receipt within 30 days from date
of issue otherwise your claim will not be honored."
Moreover, knowledge on the part of the carrier of the loss of or damage to the
goods deducible from the issuance of said report is not equivalent to nor does it
approximate the legal purpose served by the filing of the requisite claim, that is,
to promptly apprise the carrier about a consignee's intention to file a claim and
thus cause the prompt investigation of the veracity and merit thereof for its
protection. It would be an unfair imposition to require the carrier, upon discovery
in the process of preparing the report on losses or damages of any and all such
loss or damage, to presume the existence of a claim against it when at that time
the carrier is expectedly concerned merely with accounting for each and every
shipment and assessing its condition. Unless and until a notice of claim is
therewith timely filed, the carrier cannot be expected to presume that for every
loss or damage tallied, a corresponding claim therefor has been filed or is already
in existence as would alert it to the urgency for an immediate investigation of the
soundness of the claim. The report on losses and damages is not the claim referred
to and required by the bills of lading for it does not fix responsibility for the loss
or damage, but merely states the condition of the goods shipped. The claim
contemplated herein, in whatever form, must be something more than a notice
that the goods have been lost or damaged; it must contain a claim for
compensation or indicate an intent to claim. 53
Thus, to put the legal effect of respondent carrier's report on losses or damages,
the preparation of which is standard procedure upon unloading of cargo at the
port of destination, on the same level as that of a notice of claim by imploring
substantial compliance is definitely farfetched. Besides, the cited notation on the
carrier's report itself makes it clear that the filing of a notice of claim in any case
is imperative if carrier is to be held liable at all for the loss of or damage to cargo.
Turning now to respondent DVAPSI and considering that whatever right of
action petitioners may have against respondent carrier was lost due to their failure
to seasonably file the requisite claim, it would be awkward, to say the least, that
by some convenient process of elimination DVAPSI should proverbially be left
holding the bag, and it would be pure speculation to assume that DVAPSI is
probably responsible for the loss of or damage to cargo. Unlike a common carrier,
an arrastre operator does not labor under a presumption of negligence in case of
loss, destruction or deterioration of goods discharged into its custody. In other
words, to hold an arrastre operator liable for loss of and/or damage to goods
entrusted to it there must be preponderant evidence that it did not exercise due
diligence in the handling and care of the goods.
Petitioners failed to pinpoint liability on any of the original defendants and in this
seemingly wild goose-chase, they cannot quite put their finger down on when,
where, how and under whose responsibility the loss or damage probably
occurred, or as stated in paragraph 8 of their basic complaint filed in the court
below, whether "(u)pon discharge of the cargoes from the original carrying
vessel, the SS VISHVA YASH," and/or upon discharge of the cargoes from the
interisland vessel the MV "SWEET LOVE," in Davao City and later while in the
custody of defendant arrastre operator. 54
The testimony of petitioners' own witness, Roberto Cabato, Jr., Marine and
Aviation Claims Manager of petitioner Philamgen, was definitely inconclusive
and the responsibility for the loss or damage could still not be ascertained
therefrom:
Q In other words, Mr. Cabato, you only computed the loss on the basis of the
figures submitted to you and based on the documents like the survey certificate
and the certificate of the arrastre?
A Yes, sir.
Q Therefore, Mr. Cabato, you have no idea how or where these losses were
incurred?
A No, sir.
xxx xxx xxx
Q Mr. Witness, you said that you processed and investigated the claim involving
the shipment in question. Is it not a fact that in your processing and investigation
you considered how the shipment was transported? Where the losses could have
occurred and what is the extent of the respective responsibilities of the bailees
and/or carriers involved?
xxx xxx xxx
xxx xxx xxx
Q Mr. Witness, from the documents, namely, the survey of Manila Adjusters and
Surveyors Company, the survey of Davao Arrastre contractor and the bills of
lading issued by the defendant Sweet Lines, will you be able to tell the respective
liabilities of the bailees and/or carriers concerned?
A No, sir. (Emphasis ours.) 55
Neither did nor could the trial court, much less the Court of Appeals, precisely
establish the stage in the course of the shipment when the goods were lost,
destroyed or damaged. What can only be inferred from the factual findings of the
trial court is that by the time the cargo was discharged to DVAPSI, loss or damage
had already occurred and that the same could not have possibly occurred while
the same was in the custody of DVAPSI, as demonstrated by the observations of
the trial court quoted at the start of this opinion.
ACCORDINGLY, on the foregoing premises, the instant petition is DENIED and
the dismissal of the complaint in the court a quo as decreed by respondent Court
of Appeals in its challenged judgment is hereby AFFIRMED.
SO ORDERED.
Note.—Judicial admissions are conclusive and no evidence is required to prove
the same. (Solivio vs. Court of Appeals, 182 Philippine American General
Insurance Co., Inc. vs. Sweet Lines, Inc., 212 SCRA 194, G.R. No. 87434 August
5, 1992

A With respect to the shipment being transported, we have of course to get into
it in order to check whether the shipment coming in to this port is in accordance
with the policy condition, like in this particular case, the shipment was
transported to Manila and transhipped through an interisland vessel in accordance
with the policy. With respect to the losses, we have a general view where losses
could have occurred. Of course we will have to consider the different bailees
wherein the shipment must have passed through, like the ocean vessel, the
interisland vessel and the arrastre, but definitely at that point and time we cannot
determine the extent of each liability. We are only interested at that point and
time in the liability as regards the underwriter in accordance with the policy that
we issued.
G.R. No. 110020. September 25, 1998.
REPUBLIC OF THE PHILIPPINES, petitioner, vs. COURT OF
APPEALS, HON. LUIS BELLO, JR., Presiding Judge of RTC, Branch 16,
Laoag City, HAROLD M. HERNANDO, and SPOUSES ROLANDO V.
ABADILLA and SUSAN SAMONTE, respondents.
Remedial Law; Certiorari; The circumstances clearly demonstrate the trial
court’s bias and arbitrariness that should have warranted the setting aside of the
questioned order of dismissal for grave abuse of discretion under Rule 65 of the
Rules of Court.—Our careful study of the facts inevitably yields to the conclusion
that the Regional Trial Court presided by Hon. Luis B. Bello, Jr. committed grave
abuse of discretion not only in issuing its order dismissing petitioner’s complaint
in Civil Case No. 9934 on a starkly erroneous ground, but also it committed a
grossly irresponsible act of allowing respondent Hernando who was then under
suspension from the practice of law, to represent himself and his co-defendants
in the case. Also, as appearing from the records, after the lapse of the period to
file an answer on the part of respondents Hernando and the Quetulios, the trial
court set the case for pre-trial without formally ruling on petitioner’s motion to
declare them in default. Surprisingly, the trial court thereafter, allowed said
defendants to file their answer upon the latter’s verbal motion. This enabled
respondent Hernando to file his pleading “Comment/Answer/Motion to
Dismiss,” with certain annexes which were considered by the trial court as
actionable documents, despite the fact that petitioner was not a party thereto. All
these circumstances clearly demonstrate the trial court’s bias and arbitrariness
that should have warranted the setting aside of the questioned order of dismissal
for grave abuse of discretion under Rule 65 of the Rules of Court. Consequently,
petitioner’s original action for certiorari filed with respondent Court of Appeals
on October 8, 1992 to annul the trial court’s Order dated May 5, 1992 dismissing
petitioner’s complaint should have been given due course.
Same; Compromise; It is well-settled that a judicial compromise has the effect of
res judicata and is immediately executory and not appealable.—The Compromise
Agreement entered into by the petitioner and the Quetulio spouses in the
expropriation case, docketed as Civil Case No. 8396-XV, on January 24, 1985
was approved and adopted in toto by the Regional Trial Court of Laoag City,
Branch XV in its decision of January 31, 1985. The compromise agreement fixed
the amount of just compensation for the property at P1,454,859.00 which was, as
the records show, fully paid by petitioner as evidenced by the disbursement
vouchers (Annexes “D-1” to “D-12” to complaint). Said compromise agreement
had long become final and executory, before respondent Hernando allegedly
executed the “Affidavit of Revocation” unilaterally revoking the same on
November 29, 1985. It is well-settled that a judicial compromise has the effect of
res judicata and is immediately executory and not appealable unless a motion to
set aside the same is filed on the ground of fraud, mistake or duress, in which
event an appeal may be filed from an order denying the same. A court cannot set
aside a judgment based on compromise without having declared in an incidental
hearing that such a compromise is vitiated by any of the grounds for nullity
enumerated in Art. 2038 of the Civil Code. Consequently, it was utterly erroneous
for the trial court to rule that there was such a revocation of the judicially
approved Compromise Agreement.
Same; Documents; Failure to deny the genuineness and due execution of an
actionable document does not preclude a party from arguing against it by
evidence of fraud, mistake, compromise, payment, statute of limitations, estoppel
and want of consideration.—Nonetheless, assuming further that petitioner is a
party to the questioned instruments, still, the dismissal of its complaint by
respondent trial court was not correct. Petitioner’s alleged failure to deny under
oath the genuineness and due execution of the said instruments simply means that
it impliedly admitted their authenticity and due execution. Failure to deny the
genuineness and due execution of an actionable document does not preclude a
party from arguing against it by evidence of fraud, mistake, compromise,
payment, statute of limitations, estoppel and want of consideration. Neither does
it bar a party from raising the defense in his answer or reply and prove at the trial
that there is a mistake or imperfection in the writing, or that it does not express
the true agreement of the parties, or that the agreement is invalid or that there is
an intrinsic ambiguity in the writing.
For our consideration is a petition for review on certiorari impugning the
Decision dated February 8, 1993 and the Resolution dated April 27, 1993 of
respondent Court of Appeals in CA-G.R. SP No. 29460. 1
The relevant antecedents are as follows:
Sometime in December 1991, petitioner filed a complaint for rescission (of a deed
of sale), cancellation (of transfer certificates of title), reconveyance and damages
with prayer for issuance of a writ of preliminary injunction and of a temporary
restraining order, against the spouses Rolando Abadilla and Susan Samonte,
Harold M. Hernando, for himself and as attorney-in-fact of Apolinario, Serafin,
Dominica and Maria, all surnamed Quetulio, * and the Register of Deeds of
Laoag City, before the Regional Trial Court of Laoag City, Branch 16, docketed
as Civil Case No. 9934-16. It is alleged in the said complaint that sometime in
1984, the then Ministry of Public Works and Highways, in collaboration with the
then Ministry of Transportation and Communication filed an expropriation case
against Serafin, Apolinario, Dominica and Maria, all surnamed Quetulio,
involving two (2) parcels of land containing an aggregate area of ninety four
thousand nine hundred thirteen (94,913) square meters, for the construction of a
terminal building for international flights of the Laoag International Airport; that
said expropriation case was docketed as Civil Case No. 8396-XV and raffled to
RTC, Branch XV, Laoag City; that a compromise agreement was entered into in
the said case on January 24, 1985 whereby the parties agreed to fix the amount
of just compensation at One Million Four Hundred Fifty Four Thousand Eight
Hundred Fifty Nine pesos (P1,454,859.00); that a decision was rendered on
January 31, 1985 whereby the trial court approved and adopted in toto the said
compromise agreement; that disbursement vouchers in the amount agreed upon
were turned over to the Quetulios; that on November 29, 1985, Harold M.
Hernando executed an affidavit revoking the compromise agreement he signed
as attorney-in-fact of the Quetulios; that sometime in 1989, the Quetulios, again
represented by Harold M. Hernando, filed a petition for the issuance of another
owners' and co-owner's duplicate copy of TCT-T-1071 and OCT No. 0-145-L
before the RTC, Branch XIV of Laoag City; that said petition was granted on
April 18, 1989 and pursuant thereto, owner's duplicate copy of TCT No. T-1071
and on April 18, 1989 and pursuant thereto, owner's duplicate copy of TCT No.
T-1071 and OCT No. 0-145-L were issued; that Harold M. Hernando, as attorney-
in-fact of the Quetulios, sold the property in question to the spouses Rolando V.
Abadilla and Susan Samonte for and in consideration of the sum of One Million
Three Hundred Pesos (P1,000,300.00); that said second sale is null and void as
the lots in question are already owned by petitioner Republic; and that the
spouses-vendees acted in bad faith as they already had prior knowledge of the
first sale.
Accordingly, petitioner prayed that (1) the deed of sale by Harold M. Hernando
in favor of the spouses Abadilla be declared null and void; (2) TCT Nos T-21484
and T-21485 covering the lots in question issued in the name of the spouses
Abadilla be declared null and void; (3) the Register of Deeds of Laoag City be
directed to cancel the TCTs and reinstate the old ones; and (4) Harold M.
Hernando and the spouses Abadilla be made liable to pay P500,000.00 by way of
actual and punitive damages. 2
The spouses Abadilla filed their Answer in due time on January 28, 1992.
On February 14, 1992, petitioner filed a Reply to the spouses Abadilla's answer.
No answer was filed by respondents Hernando and the Quetulios within the 15-
day reglementary period to file a responsive pleading.
Meanwhile, the initial hearing for the instant case was set for February 27, 1992.
Said hearing was, however, postponed for no apparent reason. Nonetheless,
respondent Harold M. Hernando, who was then present in court, moved that (a)
he be granted the opportunity to formally appear as counsel for himself and his
co-defendants as he was then still serving a five (5) month suspension from the
practice of law for malpractice pursuant to the Resolution of this Court dated
October 17, 1991 in Administrative Case No. 1359 entitled Buted v.
Hernando 3 and (b) he be allowed to file an answer despite petitioner's oral
manifestation that he be declared in default for failure to file his answer within
the reglementary period. Both motions were granted by the trial court.
On February 28, 1992, respondent Hernando filed a pleading denominated as
"Comment/Answer/Motion to Dismiss" 4 praying for the dismissal of the
complaint on the basis of the "Affidavit of Revocation" executed by him on
November 29, 1985 cancelling the Compromise Agreement because Atty. Sixto
S. Pedro allegedly withheld ten (10) checks in the amount of P500,000.00 which
were supposed to be part of the consideration for the property expropriated; and
that Atty. Sixto S. Pedro, in his capacity as "Special Attorney" for the Ministry
of Public Works and Highways, Ilocos Norte, and representing the Republic of
the Philippines, had signed a Rescission of Compromise Agreement and the Deed
of Conveyance dated December 2, 1985 (in favor of the Abadilla spouses).
On May 5, 1992, the trial court issued an order dismissing the complaint
ratiocinating that:
As the plaintiff has not filed any reply/opposition or comment to the
comment/answer/motion to dismiss, said party is deemed to have admitted the
due execution and genuiness (sic) of the instruments which are exhibits 3 and 4
of the motion to dismiss, Sec, 8, Rule 8 of the Rules of Court. This is so as said
instruments which are exhibits 3 and 4 are copied verbatim as part of the pleading
of defendants Atty. Harold Hernando and Dominica Quetolio, Sec. 7, Rule 8 of
the New Rules of Court. Plaintiff having admitted the execution and genuiness
(sic) of the instruments, said patty has already abandoned its claim to the land in
suit or the claim of said party plaintiff has been extinguished. 5
Petitioner received a copy of the above-stated order on May 13, 1992.
On May 25, 1992, petitioner filed a Motion for Reconsideration of the order of
dismissal.
The motion was denied in an order received by petitioner on September 14, 1992.
On October 8, 1992, twenty-four (24) days after it received a copy of the order
denying its motion for reconsideration, petitioner filed a petition
for certiorari under Rule 65 of the Rules of Court before this Court, docketed as
G.R. No. 107229.
Per our Resolution dated October 12, 1992, G.R. No. 107229 was referred to the
Court of Appeals for appropriate action. Therein, G.R. No. 107229 was docketed
anew as CA-G.R. SP No. 29460.
On February 8, 1993, the Court of Appeals dismissed the said petition
for certiorari after treating the same as an ordinary appeal filed out of time.
According to the appellate court:
Considering that petitioner admittedly received a copy of the Order dated 04
September 1992 denying its Motion For Reconsideration on 14 September 1992,
the reglementary period within which to file an appeal therefrom expired on 29
September 1992.
The record discloses that the instant petition was filed on 08 October 1992.
Consequently, the questioned Order had attained finality at the time the petition
was filed. 6
A motion for reconsideration of said decision was denied on April 27, 1993.
Hence, the present petition for review on certiorari grounded on the following
issues, viz.:
I respondent Hernando to file his pleading "Comment/Answer/Motion to
Whether or not respondent Honorable Court of Appeals has decided a question
of substance, not theretofore determined by the Honorable Supreme Court or that
it has decided it in a way not in accord with law or with applicable decisions of
this Honorable Court, in denying due course to the petition in G.R. SP No. 29460,
purportedly on the ground that the 15-day reglementary period had already
elapsed despite patent showing on the face of the petition that it was filed
pursuant to Rule 65 of the Revised Rules of Court.
II
Whether or not respondent Honorable Court of Appeals has patently sanctioned
such departure by respondent Hon. Luis B. Bello, Jr., from the usual and accepted
course of judicial proceeding as he (Judge Bello) considered a mere affidavit as
an actionable document such that petitioner's failure to file an opposition or
comment to herein private respondent-Harold Hernando's pleading wherein said
affidavit was attached and copied, amounted to an admission of its due execution
and genuineness, being allegedly an actionable document, pursuant to Sec. 8,
Rule 8 of the Revised Rules of Court. 7
We grant the petition.
The threshold issue in this case is whether or not respondent Court of Appeals
committed reversible error in denying due course and dismissing CA-GR-SP No.
29460 for having been filed out of time.
Respondent Court of Appeals ruled that an ordinary appeal not a petition
for certiorari under Rule 65, was the proper remedy from the trial court's Order
of dismissal dated May 5, 1992 which has attained finality.
Our careful study of the facts inevitably yields to the conclusion that the Regional
Trial Court presided by Hon. Luis B. Bello, Jr. committed grave abuse of
discretion not only in issuing its order dismissing petitioner's complaint in Civil
Case No. 9934 on a starkly erroneous ground, but also it committed a grossly
irresponsible act of allowing respondent Hernando who was then under
suspension from the practice of law, to represent himself and his co-defendants
in the case. Also, as appearing from the records, after the lapse of the period to
file an answer on the part of respondents Hernando and the Quetulios, the trial
court set the case for pre-trial without formally ruling on petitioner's motion to
declare them in default. Surprisingly, the trial court thereafter, allowed said
defendants to file their answer upon the latter's verbal motion. This enabled
Dismiss," with certain annexes which were considered by the trial court as
actionable documents, despite the fact that petitioner was not a party thereto. All
these circumstances clearly demonstrate the trial court's bias and arbitrariness that
should have warranted the setting aside of the questioned order of dismissal for
grave abuse of discretion under Rule 65 of the Rules of Court. Consequently,
petitioner's original action for certiorari filed with respondent Court of Appeals
on October 8, 1992 to annul the trial court's Order dated May 5, 1992 dismissing
petitioner's complaint should have been given due course.
The Compromise Agreement entered into by the petitioner and the Quetulio
spouses in the expropriation case, docketed as Civil Case No. 8396-XV, on
January 24, 1985 was approved and adopted in toto by the Regional Trial Court
of Laoag City, Branch XV in its decision of January 31, 1985. The compromise
agreement fixed the amount of just compensation for the property at
P1,454,859.00 which was, as the records show, fully paid by petitioner as
evidenced by the disbursement vouchers (Annexes "D-1" to "D-12" to
complaint). 8 Said compromise agreement had long become final and executory,
before respondent Hernando allegedly executed the "Affidavit of Revocation"
unilaterally revoking the same on November 29, 1985. It is well-settled that a
judicial compromise has the effect of res judicata and is immediately executory
and not appealable unless a motion to set aside the same is filed on the ground of
fraud, mistake or duress, in which event an appeal may be filed from an order
denying the same. 9 A court cannot set aside a judgment based on compromise
without having declared in an incidental hearing that such a compromise is
vitiated by any of the grounds for nullity enumerated in Art. 2038 of the Civil
Code. Consequently, it was utterly erroneous for the trial court to rule that there
was such a revocation of the judicially approved Compromise Agreement.
Moreover, considering that petitioner is not a party to the annexes attached to the
Comment/Answer/Motion to Dismiss filed by respondent Hernando and the
Quetulios, the trial court had no legal basis in dismissing petitioner's complaint
in Civil Case No. 9934-16 on the ground that petitioner had admitted the due
execution and genuineness of said annexes consisting of the "Affidavit of
Revocation," and "Rescission of Compromise Agreement and Deed of
Conveyance."
Sec. 8 of Rule 8 of the Rules of Court provides:
Sec. 8. How to contest genuineness of such documents. - When an action or
defense is founded upon a written instrument, copied in or attached to the
corresponding pleading as provided in the preceding section, the genuineness and
due execution of the instrument shall be deemed admitted unless the adverse
party, under oath, specifically denies them, and sets forth what he claims to be
the facts; but this provision does not apply when the adverse party does not
appear to be a party to the instrument or when compliance with an order for an
inspection of the original instrument is refused. (Emphasis ours.)
While the signature of Atty. Sixto S. Pedro is found in both instruments, he could
not have, in any way, bound the petitioner thereto for total lack of authority from
the latter to enter into any agreement prejudicial to or in diminution of the rights
of the Government. It is to be noted that the "Affidavit of Revocation" executed
on November 29, 1985 by respondent Hernando repudiated the judgment by
compromise on the ground that Atty. Sixto S. Pedro, alleged Special Attorney of
the Ilocos Norte District of the Public Works, had withheld ten (10) checks in the
total mount of P500,000.00 which were part of the consideration for the property
subject of the Compromise Agreement. The document was signed by Atty. Pedro
with the words "acknowledged and my express conformity." Similarly, the
"Rescission of Compromise Agreement and Deed of Conveyance" was executed
by the Quetulios and signed by Atty. Pedro describing himself as "Special
Attorney of the NPWH I.N. Engineering District and representing the Republic
of the Philippines." Even granting hypothetically that Atty. Pedro was duly
designated as Special Attorney of the Office of the Solicitor General, and was
authorized to represent the Solicitor General at the hearings of the expropriation
case, it is still the Solicitor General who retains supervision and control of the
representation of the case and who has to approve actions involving withdrawal,
non-appeal and other matters which appear to compromise the interest of the
Government, not to mention that only notices of orders, resolutions and decisions
served on him will bind the Government. 10 The authority to enter into any
agreement or arrangement adversely affecting the rights and interests of the
Government cannot be assumed; it has to be established by him who asserts its
existence.
Nonetheless, assuming further that petitioner is a party to the questioned
instruments, still, the dismissal of its complaint by respondent trial court was not
correct. Petitioner's alleged failure to deny under oath the genuineness and due
execution of the said instruments simply means that it impliedly admitted their
authenticity and due execution. Failure to deny the genuineness and due
execution of an actionable document does not preclude a party from arguing
against it by evidence of fraud, mistake, compromise, payment, statute of
limitations, estoppel and want of consideration. 11 Neither does it bar a party from
raising the defense in his answer or reply and prove at the trial that there is a
mistake or imperfection in the writing, or that it does not express the true
agreement of the parties, or that the agreement is invalid or that there is an
intrinsic ambiguity in the writing. 12
Apart from the aforestated erroneous application of the law, the proceedings
conducted by the respondent judge were grievously tainted by the appearance of
respondent Hernando in the case despite his suspension at the time from the
practice of law.
As explicitly stated in the present petition as well as in the petition previously
filed in this case, docketed as G.R. No. 107229 which was referred to the Court
of Appeals for disposition, respondent RTC Judge Luis B. Bello, Jr. did not rule
on petitioner's oral motion to declare the Quetulios in default for not filing their
answer within the reglementary period. Instead, after the case was set for initial
hearing on February 27, 1992, the judge admitted the formal appearance of
respondent Hernando as counsel for himself and for his co-defendants and
allowed him to file an answer to the complaint. Evidently, when respondent
Hernando appeared before the trial court at the initial hearing of the case on
February 27, 1992, and when he filed the pleading denominated as
Comment/Answer/Motion to Dismiss, he was still under suspension from the
practice of law. A suspended lawyer, during his suspension, is certainly
prohibited from engaging in the practice of law 13 and if he does so, he may be
disbarred. The reason is that, his continuing to practice his profession during his
suspension constitutes a gross misconduct and a wilful disregard of the
suspension order, which should be obeyed though how erroneous it may be until
set aside. 14
avoid situations such as that obtaining in this case which involves a valuable
property.
WHEREFORE, the instant petition is hereby GRANTED. Civil Case No. 9934-
16 before the Regional Trial Court of Laoag City, Branch 16, is hereby
REINSTATED and the court a quo is ORDERED to proceed hearing the case
and resolve the same with dispatch.
SO ORDERED.
Note.—Although certiorari cannot be a substitute for a lapsed appeal, where a
rigid application of that rule will result in a manifest failure or miscarriage of
justice, the rule may be relaxed. (Mejares vs. Reyes, 254 SCRA 425 [1996])
Republic vs. Court of Appeals, 296 SCRA 171, G.R. No. 110020 September 25,
1998

While as a general rule, certiorari cannot be a substitute for a lapsed appeal,

however, where the rigid application of the rule will result in a manifest failure,
or miscarriage of justice, the rule may be relaxed. 15 Technicalities should be
disregarded if only to accord to the respective parties that which is due them.
Therefore, considering the broader and primordial interests of justice, particularly
when there is grave abuse of discretion as in the case at bar, an occasional
departure from the general rule that the extraordinary writ of certiorari cannot
substitute for a lost appeal is warranted. 16 In the instant case, we rule that
respondent court erred in not entertaining the special civil action
for certiorari (CA-G.R. SP No. 29460) before it, considering the patent
irregularity and grave abuse of discretion committed by the trial court in
dismissing petitioner's complaint, such that appeal therefrom was not an adequate
remedy in the ordinary course of law.

However, it has not escaped the attention of the Court that the petition in G.R.
No. 107229 was filed by the Office of the Solicitor General nine (9) days beyond
the reglementary period. Rules of procedure are intended to insure the orderly
administration of justice and the protection of the substantive rights of the parties
in judicial proceedings. Needless to state, Government lawyers assigned to the
case should have acted more scrupulously and sedulously in seeing to it that their
client's interests are protected by observing deadlines in filing of pleadings to
G.R. No. 111244. December 15, 1997.
ARTURO ALANO, petitioner, vs. THE HONORABLE COURT OF
APPEALS, HON. ENRICO A. LANZANAS, Presiding Judge, Regional
Trial Court, Manila, Branch 37, and ROBERTO CARLOS, respondents.
Actions; Criminal Procedure; Prejudicial Question Doctrine; Words and Phrases;
The doctrine of prejudicial question comes into play in a situation where a civil
action and a criminal action are both pending and there exists in the former an
issue which must be preemptively resolved before the criminal action may
proceed, because howsoever the issue raised in the civil action is resolved would
be determinative of the guilt or innocence of the accused in the criminal action.—
The doctrine of prejudicial question comes into play in a situation where a civil
action and a criminal action are both pending and there exists in the former an
issue which must be preemptively resolved before the criminal action may
proceed, because howsoever the issue raised in the civil action is resolved would
be determinative of the guilt or innocence of the accused in the criminal action.
In other words, if both civil and criminal cases have similar issues or the issue in
one is intimately related to the issues raised in the other, then a prejudicial
question would likely exist, provided the other element or characteristic is
satisfied.
Same; Same; Same; Evidence; Admissions; Stipulation of Facts; A stipulation of
facts by the parties in a criminal case is recognized as declarations constituting
judicial admissions, hence, binding upon the parties.—From the foregoing, there
is no question that a stipulation of facts by the parties in a criminal case is
recognized as declarations constituting judicial admissions, hence, binding upon
the parties and by virtue of which the prosecution dispensed with the introduction
of additional evidence and the defense waived the right to contest or dispute the
veracity of the statement contained in the exhibit.
Same; Same; Same; Same; Same; Same; Pre-Trial; The stipulation of facts stated
in a pre-trial order amounts to an admission by a party resulting in the waiver of
his right to present evidence on his behalf.—Accordingly, the stipulation of facts
stated in the pre-trial order amounts to an admission by the petitioner resulting in
the waiver of his right to present evidence on his behalf. While it is true that the
right to present evidence is guaranteed under the Constitution, this right may be
waived expressly or impliedly.
Same; Same; Same; Same; Same; Same; Since the suspension of the criminal
case due to a prejudicial question is only a procedural matter, the same is subject
to a waiver by virtue of the prior acts of the accused.—Since the suspension of
the criminal case due to a prejudicial question is only a procedural matter, the
same is subject to a waiver by virtue of the prior acts of the accused. After all,
the doctrine of waiver is made solely for the benefit and protection of the
individual in his private capacity, if it can be dispensed with and relinquished
without infringing on any public right and without detriment to the community at
large. Alano vs. Court of Appeals, 283 SCRA 269, G.R. No. 111244 December
15, 1997
Petitioner Arturo Alano has filed this petition for review of the decision 1 of the
Court of Appeals in CA-G.R. SP No. 28150 which affirmed in toto the order of
the Regional Trial Court of Manila, Branch 372 denying petitioners motion for
the suspension of proceeding of Criminal Case No. 90-84933, entitled People of
the Philippines vs. Arturo Alano as well as his motion for reconsideration.
Criminal Case No. 90-84933 is a prosecution for the crime of estafa. The
information3 alleges:
That on or about June 10, 1986, in the City of Manila, Philippines, the said
accused did then and there wilfully, unlawfully and feloniously defraud Roberto
S. Carlos in the following manner, to wit: the said accused, pretending to be still
the owner of a parcel of land with an area of 1,172 square meters, more or less,
located at Bicutan, Taguig, Metro Manila, covered by Tax Declaration No. 120-
004-00398, well knowing that he had previously sold the same to the said Roberto
S. Carlos for P30,000.00, sold the aforesaid property for the second time to one
Erlinda B. Dandoy for P87,900.00, thereby depriving the said Roberto S. Carlos
of his rightful ownership/possession of the said parcel of land, to the damage and
prejudice of the said Roberto S. Carlos in the aforesaid amount of P30,000.00,
Philippine currency.
Contrary to law.
Petitioner moved for the suspension of the criminal case on the ground that there
was a prejudicial question pending resolution in another case being tried in the
Regional Trial Court, National Capital Region, Pasig, Branch 68. The case,
docketed as Civil Case No. 55103 and entitled Roberto Carlos and Trinidad M.
Carlos v. Arturo Alano, et al., concerns the nullity of the sale and recovery of
possession and damages. In the aforementioned Civil Case, private respondent
filed a complaint against the petitioner seeking the annulment of the second sale
of said parcel of land made by the petitioner to a certain Erlinda Dandoy on the
premise that the said land was previously sold to them. In his answer, petitioner
contends that he never sold the property to the private respondents and that his
signature appearing in the deed of absolute sale in favor of the latter was a
forgery, hence, the alleged sale was fictitious and inexistent. At this juncture, it
is worth mentioning that the civil case was filed on March 1, 1985, five years
before June 19, 1990 when the criminal case for estafa was instituted.
On October 3, 1991, the trial court denied the petitioners motion as well as a
subsequent motion for reconsideration.
Aggrieved, petitioner filed a petition for certiorari and prohibition before the
Court of Appeals seeking the nullification of the assailed order.
On July 26, 1993,4 the Court of Appeals dismissed the petition for lack of merit,
the decretal portion of which reads:
WHEREFORE, finding no merit to the petition, the same is hereby DISMISSED,
with cost against petitioner.
Hence, this petition.
The only issue in this petition is whether the pendency of Civil Case No. 55103,
is a prejudicial question justifying the suspension of the proceedings in Criminal
Case No. 90-84933 filed against the petitioner.
Petitioner alleges that his signature appearing in the first deed of absolute sale in
favor of private respondent was a forgery, such that there was no second sale
covering the said parcel of land. Otherwise stated, if the Court in the said Civil
Case rules that the first sale to herein private respondent was null and void, due
to the forgery of petitioners signature in the first deed of sale, it follows that the
criminal case for estafa would not prosper.
While at first blush there seems to be merit in petitioners claim, we are compelled
to affirm the Court of Appeals findings.
The doctrine of prejudicial question comes into play in a situation where a civil
action and a criminal action are both pending and there exists in the former an
issue which must be preemptively resolved before the criminal action may
proceed, because howsoever the issue raised in the civil action is resolved such
resolution would be determinative of the guilt or innocence of the accused in the
criminal action.5 In other words, if both civil and criminal cases have similar
issues or the issue in one is intimately related to the issues raised in the other,
then a prejudicial question would likely exist, provided the other element or
characteristic is satisfied.6cräläwvirtualibräry
On the basis of the foregoing and a perusal of the facts obtaining in the case at
bar, the disposition of the issue raised need not unduly detain us. We have already
ruled that a criminal action for estafa (for alleged double sale of property) is a
prejudicial question to a civil action for nullity of the alleged deed of sale and the
defense of the alleged vendor is the forgery of his signature in the deed. 7
Notwithstanding the apparent prejudicial question involved, the Court of Appeals
still affirmed the Order of the trial court denying petitioners motion for the
suspension of the proceeding on the ground that petitioner, in the stipulation of
facts, had already admitted during the pre-trial order dated October 5, 1990 of the
criminal case the validity of his signature in the first deed of sale between him
and the private respondent, as well as his subsequent acknowledgment of his
signature in twenty-three (23) cash vouchers evidencing the payments made by
the private respondent. 8 Moreover, it was also noted by the Court of Appeals that
petitioner even wrote to the private respondent offering to refund whatever sum
the latter had paid.9
In this regard, the pre-trial provision on criminal procedure found in Rule 118 of
the Rules of Court provides:
Sec. 2. Pre-trial conference; subjects. x x x. The pre-trial conference shall
consider the following:
(a) Plea bargaining
(b)Stipulation of facts
From the foregoing, there is no question that a stipulation of facts by the parties
in a criminal case is recognized as declarations constituting judicial admissions,
hence, binding upon the parties10 and by virtue of which the prosecution
dispensed with the introduction of additional evidence and the defense waived
the right to contest or dispute the veracity of the statement contained in the
exhibit.11
Accordingly, the stipulation of facts stated in the pre-trial order amounts to an
admission by the petitioner resulting in the waiver of his right to present evidence
on his behalf. While it is true that the right to present evidence is guaranteed
under the Constitution,12 this right may be waived expressly or impliedly. 13
Since the suspension of the criminal case due to a prejudicial question is only a
procedural matter, the same is subject to a waiver by virtue of the prior acts of
the accused. After all, the doctrine of waiver is made solely for the benefit and
protection of the individual in his private capacity, if it can be dispensed with and
relinquished without infringing on any public right and without detriment to the
community at large.14

Accordingly, petitioners admission in the stipulation of facts during the pre-trial

of the criminal amounts to a waiver of his defense of forgery in the civil case.
Hence, we have no reason to nullify such waiver, it being not contrary to law,
public order, public policy, morals or good customs, or prejudicial to a third
person with a right recognized by law.15 Furthermore, it must be emphasized that
the pre-trial order was signed by the petitioner himself. As such, the rule that no
proof need be offered as to any facts admitted at a pre-trial hearing applies.16

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

Appeals dated July 26, 1993 is AFFIRMED. Costs against petitioner.

SO ORDERED.

Notes.—There is no prejudicial question where one case is administrative and the

other civil. (Ocampo vs. Buenaventura, 55 SCRA 267 [1974])

The rationale behind the principle of prejudicial question is to avoid two

conflicting decisions. (Tuanda vs. Sandiganbayan, 249 SCRA 342 [1995] Alano
vs. Court of Appeals, 283 SCRA 269, G.R. No. 111244 December 15, 1997
G.R. No. 119220. September 20, 1996 defendant of fact or facts pertinent to issues pending, in connection with proof of
other facts or circumstances, to prove guilt, but which is, of itself, insufficient to
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NILO SOLAYAO, authorize conviction.” From the above principles, this Court can infer that an
accused-appellant. admission in criminal cases is insufficient to prove beyond reasonable doubt the
Criminal Law; Illegal Possession of Firearm; Evidence; Essential elements to commission of the crime charged. People vs. Solayao, 262 SCRA 255, G.R. No.
prove the crime of illegal possession of firearm.—This Court, in the case of 119220 September 20, 1996
People v. Lualhati ruled that in crimes involving illegal possession of firearm, the
Accused-appellant Nilo Solayao was charged before the Regional Trial Court of
prosecution has the burden of proving the elements thereof, viz: (a) the existence
Naval, Biliran, Branch 16, with the crime of illegal possession of firearm and
of the subject firearm and (b) the fact that the accused who owned or possessed
ammunition 1 defined and penalized under Presidential Decree No. 1866.
it does not have the corresponding license or permit to possess the same.
The lone prosecution witness, SPO3 Jose Niño, narrated that at about 9:00 o'clock
Same; Same; Same; Search Warrant; The case at bar constitutes an instance
in the evening of July 9, 1992, with CAFGU members Teofilo Llorad, Jr. and
where a search and seizure may be effected without first making an arrest.—As
Cecilio Cenining, he went to Barangay Caulangohan, Caibiran, Biliran. They
with Posadas, the case at bar constitutes an instance where a search and seizure
were to conduct an intelligence patrol as required of them by their intelligence
may be effected without first making an arrest. There was justifiable cause to
officer to verify reports on the presence of armed persons roaming around the
“stop and frisk” accused-appellant when his companions fled upon seeing the
barangays of Caibiran. 2
government agents. Under the circumstances, the government agents could not
possibly have procured a search warrant first. From Barangay Caulangohan, the team of Police Officer Niño proceeded to
Barangay Onion where they met the group of accused-appellant Nilo Solayao
Same; Same; Same; Same; There was no violation of the constitutional guarantee
numbering five. The former became suspicious when they observed that the latter
against unreasonable searches and seizures.—Thus, there was no violation of the
were drunk and that accused-appellant himself was wearing a camouflage
constitutional guarantee against unreasonable searches and seizures. Nor was
uniform or a jungle suit. Accused-appellant's companions, upon seeing the
there error on the part of the trial court when it admitted the homemade firearm
government agents, fled. 3
as evidence.
Police Officer Niño told accused-appellant not to run away and introduced
Same; Same; Same; The absence of license and legal authority constitutes an
himself as "PC," after which he seized the dried coconut leaves which the latter
essential ingredient of the offense of illegal possession of firearm and every
was carrying and found wrapped in it a 49-inch long homemade firearm locally
ingredient or essential element of an offense must be shown by the prosecution
know as "latong." When he asked accused-appellant who issued him a license to
by proof beyond reasonable doubt.—Undoubtedly, it is the constitutional
carry said firearm or whether he was connected with the military or any
presumption of innocence that lays such burden upon the prosecution. The
intelligence group, the latter answered that he had no permission to possess the
absence of such license and legal authority constitutes an essential ingredient of
same. Thereupon, SPO3 Niño confiscated the firearm and turned him over to the
the offense of illegal possession of firearm, and every ingredient or essential
custody of the policemen of Caibiran who subsequently investigated him and
element of an offense must be shown by the prosecution by proof beyond
charged him with illegal possession of firearm. 4
reasonable doubt.
Accused-appellant, in his defense, did not contest the confiscation of the shotgun
Same; Same; Same; An admission in criminal cases is insufficient to prove
but averred that this was only given to him by one of his companions,
beyond reasonable doubt the commission of the crime charged.—By its very
Hermogenes Cenining, when it was still wrapped in coconut leaves. He claimed
nature, an “admission is the mere acknowledgment of a fact or of circumstances
that he was not aware that there was a shotgun concealed inside the coconut
from which guilt may be inferred, tending to incriminate the speaker, but not
leaves since they were using the coconut leaves as a torch. He further claimed
sufficient of itself to establish his guilt.” In other words, it is a “statement by
that this was the third torch handed to him after the others had been used
up. 5 Accused-appellant's claim was corroborated by one Pedro Balano that he
indeed received a torch from Hermogenes Cenining which turned out to be a
shotgun wrapped in coconut leaves. 6
On August 25, 1994, the trial court found accused-appellant guilty of illegal
possession of firearm under Section 1 of Presidential Decree No. 1866 and
imposed upon him the penalty of imprisonment ranging from reclusion
temporal maximum to reclusion perpetua. The trial court, having found no
mitigating but one aggravating circumstance of nighttime, sentenced accused-
appellant to suffer the prison term of reclusion perpetua with the accessory
penalties provided by law. 7 It found that accused-appellant did not contest the
fact that SPO3 Niño confiscated the firearm from him and that he had no permit
or license to possess the same. It hardly found credible accused-appellant's
submission that he was in possession of the firearm only by accident and that
upon reaching Barangay Onion, he followed four persons, namely, Hermogenes
Cenining, Antonio Sevillano, Willie Regir and Jovenito Jaro when he earlier
claimed that he did not know his companions. 8
Accused-appellant comes to this Court on appeal and assigns the following
errors:
I. The trial court erred in admitting in evidence the homemade firearm.
II. The trial court erred in appreciating the aggravating circumstance of nighttime
in the imposition of the maximum penalty against the accused-appellant. 9
This court, in the case of People v. Lualhati10 ruled that in crimes involving
illegal possession of firearm, the prosecution has the burden of proving the
elements thereof, viz: (a) the existence of the subject firearm and (b) the fact that
the accused who owned or possessed it does not have the corresponding license
or permit to possess the same.
In assigning the first error, accused-appellant argued that the trial court erred in
admitting the subject firearm in evidence as it was the product of an unlawful
warrantless search. He maintained that the search made on his person violated his
constitutional right to be secure in his person and effects against unreasonable
searches and seizures. Not only was the search made without a warrant but it did
not fall under any of the circumstances enumerated under Section 5, Rule 113 of
the 1985 Rules on Criminal Procedure which provides, inter alia:
A peace officer or a private person may, without a warrant, arrest a person when
in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense.
Hence, the search being unlawful, the homemade firearm confiscated from him
is inadmissible in evidence for being "the fruit of the poisonous
tree." 11 As such, the prosecution's case must necessarily fail and the accused-
appellant acquitted.
Accused-appellant's arguments follow the line of reasoning in People v. Cuizon,
et al. 12 where this Court declared: ". . . emphasis is to be laid on the fact that the
law requires that the search be incident to a lawful arrest, in order that the search
itself may likewise be considered legal. Therefore, it is beyond cavil that a lawful
arrest must precede the search of a person and his belongings. Were a search first
undertaken, then an arrest effected based on evidence produced by the search,
both such search and arrest would be unlawful, for being contrary to law."
Under the circumstances obtaining in this case, however, accused-appellant's
arguments are hardy tenable. He and his companions' drunken actuations aroused
the suspicion of SPO3 Niño's group, as well as the fact that he himself was attired
in a camouflage uniform or a jungle suit 13 and that upon espying the peace
officers, his companions fled. It should be noted that the peace officers were
precisely on an intelligence mission to verify reports that armed persons were
roaming around the barangays of Caibiran. 14
The circumstances in this case are similar to those obtaining in Posadas v. Court
of Appeals 15 where this Court held that "at the time the peace officers identified
themselves and apprehended the petitioner as he attempted to flee, they did not
know that he had committed, or was actually committing the offense of illegal
possession of firearm and ammunitions. They just suspended that he was hiding
something in the buri bag. They did not know what its contents were. The said
circumstances did not justify an arrest without a warrant."
This Court, nevertheless, ruled that the search and seizure in the Posadas case
brought about by the suspicious conduct of Posadas himself can be likened to a
"stop and frisk" situation. There was probable cause to conduct a search even
before an arrest could be made.
In the present case, after SPO3 Niño told accused-appellant not to run away, the
former identified himself as a government agents. 16 The peace officers did not
know that he had committed, or was actually committing, the offense of illegal
possession of firearm. Tasked with verifying the report that there were armed
men roaming in the barangays surrounding Caibiran, their attention was
understandably drawn to the group that had aroused their suspicion. They could
not have known that the object wrapped in coconut leaves which accused-
appellant was carrying hid a firearm.
As with Posadas, the case at bar constitutes an instance where a search and
seizure may be effected without first making an arrest. There was justifiable cause
to "stop and frisk" accused-appellant when his companions filed upon seeing the
government agents. Under the circumstances, the government agents could not
possibly have procured a search warrant first.
Thus, there was no violation of the constitutional guarantee against unreasonable
searches and seizures. Nor was there error on the part of the trial court when it
admitted the homemade firearm as evidence.
As to the question of whether or not the prosecution was able to prove the second
element, that is, the absence of a license or permit to possess the subject firearm,
this Court agrees with the Office of the Solicitor General which pointed out that
the prosecution failed to prove that accused-appellant lacked the necessary permit
or license to possess the subject firearm. 17
Undoubtedly, it is the constitutional presumption of innocence that lays such
burden upon the prosecution. The absence of such license and legal authority
constitutes an essential ingredient of the offense of illegal possession of firearm,
and every ingredient or essential element of an offense must be shown by the
prosecution by proof beyond reasonable doubt. 18
In People v. Tiozon, 19 this Court said:
It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758
could be invoked to support the view that it is incumbent upon a person charged
with illegal possession of a firearm to prove the issuance to him of a license to
possess the firearm, but we are of the considered opinion that under the provisions
of Section 2, Rule 131 of the Rules of Court which provide that in criminal cases
the burden of proof as to the offense charged lies on the prosecution and that a
negative fact alleged by the prosecution must be proven if "it is an essential
ingredient of the offense charged," the burden of proof was with the prosecution
in this case to prove that the firearm used by appellant in committing the offense
charged was not properly licensed.
It cannot be denied that the lack or absence of a license is an essential ingredient
of the offense of illegal possession of a firearm. The information filed against
appellant in Criminal Case No. 3558 of the lower court (now G.R. No. 27681)
specifically alleged that he had no "license or permit to possess" the .45 caliber
pistol mentioned therein. Thus it seems clear that it was the prosecution's duty
not merely to allege that negative fact but to prove it. This view is supported by
similar adjudicated cases. In U.S. vs. Tria, 17 Phil. 303, the accused was charged
with "having criminally inscribed himself as a voter knowing that he had none of
the qualifications required to be a voter. It was there held that the negative fact
of lack of qualification to be a voter was an essential element of the crime charged
and should be proved by the prosecution. In another case (People vs. Quebral. 68
Phil. 564) where the accused was charged with illegal practice of medicine
because he had diagnosed, treated and prescribed for certain diseases suffered by
certain patients from whom he received monetary compensation, without having
previously obtained the proper certificate of registration from the Board of
Medical Examiners, as provided in Section 770 of the Administrative Code, this
Court held that if the subject of the negative averment like, for instance, the act
of voting without the qualifications provided by law is an essential ingredient of
the offense charged, the prosecution has the burden of proving the same, although
in view of the difficulty of proving a negative allegation, the prosecution, under
such circumstance, need only establish a prima facie case from the best evidence
obtainable. In the case before Us, both appellant and the Solicitor General agree
that there was not even a prima facie case upon which to hold appellant guilty of
the illegal possession of a firearm. Former Chief Justice Moral upholds this view
as follows:
The mere fact that the adverse party has the control of the better means of proof
of the fact alleged, should not relieve the party making the averment of the burden
of proving it. This is so, because a party who alleges a fact must be assumed to
have acquired some knowledge thereof, otherwise he could not have alleged it.
Familiar instance of this is the case of a person prosecuted for doing an act or
carrying on a business, such as, the sale of liquor without a license. How could
the prosecution aver the want of a license if it had acquired no knowledge of that
fact? Accordingly, although proof of the existence or non-existence of such
license can, with more facility, be adduced by the defendant, it is nevertheless,
encumber upon the party alleging the want of the license to prove the allegation.
Naturally, as the subject matter of the averment is one which lies peculiarly
within the control or knowledge of the accused prima facie evidence thereof on
the part of the prosecution shall suffice to cast the onus upon him." (6 Moran,
Comments on the Rules of Court, 1963 edition, p. 8).
Finally, the precedents cited above have been crystallized as the present
governing case law on this question. As this Court summed up the doctrine
in People v. Macagaling: 20
We cannot see how the rule can be otherwise since it is the inescapable duty of
the prosecution to prove all the ingredients of the offense as alleged against the
accused in an information, which allegations must perforce include any negative
element provided by the law to integrate that offense. We have reiterated quite
recently the fundamental mandate that since the prosecution must allege all the
elements of the offense charged, then it must prove by the requisite quantum of
evidence all the elements it has thus alleged.
In the case at bar, the prosecution was only able to prove by testimonial evidence
that accused-appellant admitted before Police Officer Niño at the time that he
was accosted that he did not have any authority or license to carry the subject
firearm when he was asked if he had one. 21 In other words, the prosecution relied
on accused-appellant's admission to prove the second element.
Is this admission sufficient to prove beyond reasonable doubt the second element
of illegal possession of firearm which is that accused-appellant does not have the
corresponding license? Corollary to the above question is whether an admission
by the accused-appellant can take the place of any evidentiary means establishing
beyond reasonable doubt the fact averred in the negative in the pleading and
which forms an essential ingredient of the crime charged.
This Court answers both questions in the negative. By its very nature, an
"admission is the mere acknowledgment of a fact or of circumstance from which
guilt may be inferred, tending to incriminate the speaker, but not sufficient of
itself to establish his guilt." 22 In other words, it is a "statement by defendant of
fact or facts pertinent to issues pending, in connection with proof of other facts
or circumstances, to prove guilt, but which is, of itself, insufficient to authorize
conviction." 23 From the above principles, this Court can infer that an admission
in criminal cases is insufficient to prove beyond reasonable doubt the commission
of the crime charged.
Moreover, said admission is extra-judicial in nature. As such, it does not fall
under Section 4 of Rule 129 of the Revised Rules of Court which states:
An admission, verbal or written, made by a party in the course of the trial or other
proceedings in the same case does not require proof.
Not being a judicial admission, said statement by accused-appellant does not
prove beyond reasonable doubt the second element of illegal possession of
firearm. It does not even establish a prima facie case. It merely bolsters the case
for the prosecution but does not stand as proof of the fact of absence or lack of a
license.
This Court agrees with the argument of the Solicitor General that "while the
prosecution was able to establish the fact that the subject firearm was seized by
the police from the possession of appellant, without the latter being able to
present any license or permit to possess the same, such fact alone is not
conclusive proof that he was not lawfully authorized to carry such firearm. In
other words, such fact does not relieve the prosecution from its duty to establish
the lack of a license or permit to carry the firearm by clear and convincing
evidence, like a certification from the government agency concerned." 24
Putting it differently, "when a negative is averred in a pleading, or a plaintiff's
case depends upon the establishment of a negative, and the means of proving the
fact are equally within the control of each party, then the burden of proof is upon
the party averring the negative." 25
In this case, a certification from the Firearms and Explosives Unit of the
Philippine National Police that accused-appellant was not a licensee of a firearm
of any kind or caliber would have sufficed for the prosecution to prove beyond
reasonable doubt the second element of the crime of illegal possession of firearm.
In view of the foregoing, this Court sees no need to discuss the second assigned
error.
WHEREFORE, the assailed judgment of the court a quo is REVERSED and SET
ASIDE. Accused-appellant Nilo Solayao is hereby ACQUITTED for
insufficiency of evidence and ordered immediately released unless there are other
legal grounds for his continued detention, with cost de oficio.
SO ORDERED.
FACTUM PROBANDUM and FACTUM PROBANS
G.R. No. 89114. December 2, 1991
FRANCISCO S. TANTUICO, JR., petitioner, vs. REPUBLIC OF THE
PHILIPPINES, PRESIDENTIAL COMMISSION ON GOOD
GOVERNMENT, MATEO A.T. CAPARAS, AND THE
SANDIGANBAYAN, respondents.
Remedial Law; Pleadings and Practices; Nature of a complaint.—A complaint is
defined as a concise statement of the ultimate facts constituting the plaintiff ‘s
cause or causes of action. Like all other pleadings allowed by the Rules of Court,
the complaint shall contain in a methodical and logical form a plain, concise and
direct statement of the ultimate facts on which the plaintiff relies for his claim,
omitting the statement of mere evidentiary facts. Its office, purpose or function
is to inform the defendant clearly and definitely of the claims made against him
so that he may be prepared to meet the issues at the trial. The complaint should
inform the defendant of all the material facts on which the plaintiff relies to
support his demand; it should state the theory of a cause of action which forms
the bases of the plaintiffs claim of liability.
Same; Same; Same; Rules on pleading speak of two kinds of facts, the ultimate
facts and the evidentiary facts.—The rules on pleading speak of two (2) kinds of
facts: the first, the “ultimate facts”, and the second, the “evidentiary facts.”
Same; Same; Same; Same; Ultimate facts and evidentiary facts defined.—"The
term ‘ultimate facts’ as used in Sec. 3, Rule 3 of the Rules of Court, means the
essential facts constituting the plaintiffs cause of action. A fact is essential if it
cannot be stricken out, without leaving the statement of the cause of action
insufficient, x x x”, (Moran, Rules of Court, Vol. 1,1963 ed., p. 213). “Ultimate
facts are important and substantial facts which either directly form the basis of
the primary right and duty, or which directly make up the wrongful acts or
omissions of the defendant. The term does not refer to the details of probative
matter or particulars of evidence by which these material elements are to be
established. It refers to principal, determinate, constitutive facts, upon the
existence of which, the entire cause of action rests.” while the term “evidentiary
fact” has been denned in the following tenor: “Those facts which are necessary
for determination of the ultimate facts; they are the premises upon which
conclusions of ultimate facts are based. Womack v. Industrial Comm., 168 Colo.
364, 451 P.2d 761, 764. Facts which furnish evidence of existence of some other
fact.”
Same; Same; Same; Bill of Particulars; Where the allegations of the complaint
are vague, indefinite or in the form of conclusions, the proper recourse would be
not a motion to dismiss but a motion for a bill of particulars.—Where the
complaint states ultimate facts that constitute the three (3) essential elements of
a cause of action, namely: (1) the legal right of the plaintiff, (2) the correlative
obligation of the defendant, and (3) the act or omission of the defendant in
violation of said legal right, the complaint states a cause of action, otherwise, the
complaint must succumb to a motion to dismiss on that ground of failure to state
a cause of action. However, where the allegations of the complaint are vague,
indefinite, or in the form of conclusions, the proper recourse would be, not a
motion to dismiss, but a motion for a bill of particulars.
Same; Same; Same; Same; Allegations in the complaint are deficient in that they
merely articulate conclusions of law and presumptions unsupported by factual
premises.—The allegations in the complaint, above-referred to, pertaining to
petitioner are, therefore, deficient in that they merely articulate conclusions of
law and presumptions unsupported by factual premises. Hence, without the
particulars prayed for in petitioner’s motion for a bill of particulars, it can be said
the petitioner can not intelligently prepare his responsive pleading and for trial.
Same; Same; Same; Same; Same; The particulars prayed for are not evidentiary
in nature.—Furthermore, the particulars prayed for, such as, names of persons,
names of corporations, dates, amounts involved, a specification of property for
identification purposes, the particular transactions involving withdrawals and
disbursements, and a statement of other material facts as would support the
conclusions and inferences in the complaint, are not evidentiary in nature. On the
contrary, those particulars are material facts that should be clearly and definitely
averred in the complaint in order that the defendant may, in fairness, be informed
of the claims made against him to the end that he may be prepared to meet the
issues at the trial.
Same; Same; Same; Same; Purpose or object of a bill of particulars.—Thus, it
has been held that the purpose or object of a bill of particulars is—"x x x to
amplify or limit a pleading, specify more minutely and particularly a claim or
defense set up and pleaded in general terms, give information, not contained in
the pleading, to the opposite party and the court as to the precise nature, character,
scope, and extent of the cause of action or defense relied on by the pleader, and
apprise the opposite party of the case which he has to meet, to the end that the
proof at the trial may be limited to the matters specified, and in order that surprise
at, and needless preparation for, the trial may be avoided, and that the opposite
party may be aided in framing his answering pleading and preparing for trial. It
has also been stated that it is the function or purpose of a bill of particulars to
define, clarify, particularize, and limit or circumscribe the issues in the case, to
expedite the trial, and assist the court. A general function or purpose of a bill of
particulars is to prevent injustice or do justice in the case when that cannot be
accomplished without the aid of such a bill.”
Same; Same; Same; Same; In a motion for a bill of particulars the only question
to be resolved is whether or not the allegations of the complaint are averred with
sufficient definiteness or particularity to enable the movant properly to prepare
his responsive pleading and to prepare for trial.—Anent the contention of the
Solicitor General that the petitioner is not entitled to a bill of particulars because
the ultimate facts constituting the three (3) essential elements of a cause of action
for recovery of ill-gotten wealth have been sufficiently alleged in the complaint,
it would suffice to state that in a motion for a bill of particulars, the only question
to be resolved is whether or not the allegations of the complaint are averred with
sufficient definiteness or particularity to enable the movant properly to prepare
his responsive pleading and to prepare for trial. Tantuico, Jr. vs. Republic, 204
SCRA 428, G.R. No. 89114 December 2, 1991
In this petition for certiorari, mandamus and prohibition with a prayer for the
issuance of a writ of preliminary injunction and/or restraining order, the petitioner
seeks to annul and set aside the resolution of the Sandiganbayan, dated 21 April
1989, denying his motion for a bill of particulars as well as its resolution, dated
29 May 1989, which denied his motion for reconsideration; to compel the
respondent PCGG to prepare and file a bill of particulars, or that said respondent
be ordered to exclude petitioner as defendant in Civil Case No. 0035 should they
fail to submit the said bill of particulars; and to enjoin the respondent
Sandiganbayan from further proceeding against petitioner until the bill of
particulars is submitted, claiming that the respondent Sandiganbayan acted with
grave abuse of discretion amounting to lack of jurisdiction in promulgating the
aforesaid resolutions and that there is no appeal, nor any plain, speedy and
adequate remedy for him in the ordinary course of law other than the present
petition.
As prayed for, this Court issued on 1 August 1989 a temporary restraining order
"effective immediately and continuing until further orders from this Court,
ordering the respondent Sandiganbayan to CEASE and DESIST from further
proceeding in Civil Case No. 0035 (PCGG 35), entitled "Republic of the
Philippines vs. Benjamin (Kokoy) Romualdez, et al." pending before it. 1
The antecedents are as follows:
On 31 July 1987, the Republic of the Philippines, represented by the PCGG, and
assisted by the Office of the Solicitor General, filed with the Sandiganbayan Civil
Case No. 0035, entitled "Republic of the Philippines vs. Benjamin (Kokoy)
Romualdez, et al." for reconveyance, reversion, accounting, restitution and
damages. 2
The principal defendants in the said Civil Case No. 0035 are Benjamin (Kokoy)
Romualdez, Ferdinand E. Marcos and Imelda R. Marcos.
Petitioner Francisco S. Tantuico, Jr. was included as defendant in Civil Case No.
0035 on the theory that: (1) he acted in unlawful concert with the principal
defendants in the misappropriation and theft of public funds, plunder of the
nation's wealth, extortion, blackmail, bribery, embezzlement and other acts of
corruption, betrayal of public trust and brazen abuse of power; 3 (2) he acted as
dummy, nominee or agent, by allowing himself to be incorporator, director, board
member and/or stockholder of corporations beneficially held and/or controlled
by the principal defendants; 4 (3) he acted singly or collectively, and/or in
unlawful concert with one another, in flagrant breach of public trust and of their
fiduciary obligations as public officers, with gross and scandalous abuse of right
and power and in brazen violation of the Constitution and laws of the Philippines,
embarked upon a systematic plan to accumulate ill-gotten wealth ; 5 (4) he
(petitioner) taking undue advantage of his position as Chairman of the
Commission on Audit and with grave failure to perform his constitutional duties
as such Chairman, acting in concert with defendants Ferdinand E. Marcos and
Imelda R. Marcos, facilitated and made possible the withdrawals, disbursements
and questionable use of government funds; 6 and (5) he acted as dummy, nominee
and/or agent by allowing himself to be used as instrument in accumulating ill-
gotten wealth through government concessions, orders and/or policies prejudicial
to plaintiff, or to be incorporator, director, or member of corporations beneficially
held and/or controlled by defendants Ferdinand E. Marcos, Imelda R. Marcos,
Benjamin (Kokoy) Romualdez and Juliette Gomez Romualdez in order to
conceal and prevent recovery of assets illegally obtained. 7
On 11 April 1988, after his motion for production and inspection of documents 8
was denied by respondent court in its resolution 9 dated 9 March 1988, petitioner
filed a Motion for a Bill of Particulars, 10 alleging inter alia that he is sued for
acts allegedly committed by him as (a) a public officer-Chairman of the
Commission on Audit, (b) as a private individual, and (c) in both capacities, in a
complaint couched in too general terms and shorn of particulars that would
inform him of the factual and legal basis thereof, and that to enable him to
understand and know with certainty the particular acts allegedly committed by
him and which he is now charged with culpability, it is necessary that plaintiff
furnish him the particulars sought therein relative to the averments in paragraphs
2, 9(a), 15, 7 and 17 of the Second Amended Complaint so that he can
intelligently prepare his responsive pleading and prepare for trial. The particulars
sought for in the said motion are as follows:
a. Relative to the averments in paragraphs 2, 9(a) and l5 of the Second Amended
Complaint:
i) What are the dates of the resolutions (if on appeal) or the acts (if
otherwise) issued or performed by herein defendant which allowed the
facilitation of, and made possible the, withdrawals, disbursements and
questionable use of government funds;
ii) What ministries or Departments, offices or agencies of the
government were involved in these questionable use of government
funds;
iii) What are the names of the auditors who had the original audit
jurisdiction over the said withdrawals, disbursements and questionable
use of government funds;
iv) How much government funds were involved in these questionable-
disbursements, individually and in totally?
v) Were the disbursements brought to herein defendant for action on
pre-audit, post-audit or otherwise or where they initiated and/or allowed
release by herein defendant alone, without them undergoing usual
governmental audit procedures, or in violation thereof.?
vi) What were herein defendant's other acts or omission or participation
in the matter of allowing such disbursements and questionable use of
government funds, if any?
b. Relative to paragraphs 7 and 17 of the Second Amended Complaint:
i) In what particular contract, dealing, transaction and/or relationship of
any nature of Ferdinand E. Marcos, Imelda R. Marcos, Juliette Gomez
Romualdez or Benjamin T. Romualdez did herein defendant act as
dummy, nominee or agent? Please specify the dealings, the dates, the
corporations or entities involved, the government offices involved and
the private and public documents, if any, showing herein defendant's
complicity, since he is not aware of any such instance. More basically,
please specify whether the defendant is a dummy or nominee or agent
and of which corporation or transaction?
ii) What particular government concession, order and/or policy obtained
by Ferdinand E. Marcos, or Imelda R. Marcos, or Juliette Gomez
Romualdez and/or Benjamin T. Romualdez allowed them either singly
or jointly to accumulate ill-gotten wealth by using herein defendant as
instrument for their accomplishment. Likewise please identify the
nature of the transactions, the dates and the document showing
complicity on the part of herein defendant; he is not aware of any such
instance.
iii) Please specify the name or denominate the particular government
concession, order and/or policy prejudicial to the interest of the
government which was obtained by either of the above-named four
defendants through the participation of herein defendant as a dummy,
nominee or agent of herein defendant. Please likewise identify the
government office involved, the dates and other particulars, likewise
defendant is not aware of any such instance.
iv) Please name and specify the corporation whether stock or non-stock,
whether government or private, beneficially held and/or controlled by
either of the four above defendants, where herein defendant is an
incorporator, director or member and where his inclusion as such
incorporator, director or member of the corporation was made in order
to conceal and prevent recovery of assets illegally obtained by the
aforementioned four defendants, how many shares are involved and
what are their values, how and when have they been acquired.
The Solicitor General, for and in behalf of respondents (except the respondent
Sandiganbayan), opposed the motion. 11 After the petitioner had filed his reply
12 thereto, the respondent Sandiganbayan promulgated on 21 April 1990 a
resolution 13 denying the petitioner's motion for a bill of particulars on the
ground that the particulars sought by petitioner are evidentiary in nature, the
pertinent part of which resolution reads, as follows:
We are of the considered opinion that the allegations in the Expanded Complaint
are quite clear and sufficient enough for defendant-movant to know the nature
and scope of the causes of action upon which plaintiff seeks relief. They provide
the factual scenario which, coupled with other allegations set forth in the
"Common Averments" and further specified in the "Specific Averments" of
herein defendant-movant and his co-defendants' illegal acts which are within
defendant-movant's peculiar and intimate knowledge as a government official
and corporate executive, will enable him to make the proper admission, denials
or qualifications, set out affirmative and/or special defenses and thereafter
prepare for trial. Evidentiary facts or matters are not essential in the pleading of
the cause of action, nor to details or probative value or particulars of evidence by
which these material evidence are to be established (Remitere vs. Yulu, 6 SCRA
251). The matters which he seeks are evidentiary in nature and, being within his
intimate or personal knowledge, may be denied or admitted by him or if deemed
necessary, be the subject of other forms of discovery. 14
Petitioner moved for reconsideration 15 but this was denied by respondent
Sandiganbayan in its resolution 16 dated 29 May 1990.
Hence, petitioner filed the present petition.
The principal issue to be resolved in the case at bar is whether or not the
respondent Sandiganbayan acted with grave abuse of discretion in issuing the
disputed resolutions.
Petitioner argues that the allegations of the Second Amended Complaint in Civil
Case No. 0035 (PCGG 35) pertaining to him state only conclusions of fact and
law, inferences of facts from facts not pleaded and mere presumptions, not
ultimate facts as required by the Rules of Court.
On the other hand, the respondent Sandiganbayan, by and through the Solicitor
General, contends that the essential elements of an action for recovery of ill-
gotten wealth are: (1) an accumulation of assets, properties and other possessions;
(2) of former President Ferdinand E. Marcos, Mrs. Imelda Romualdez Marcos,
their close relatives, subordinates, business associates, dummies, agents, or
nominees; and (3) whose value is out of proportion to their known lawful income,
and that the ultimate facts establishing these three (3) essential elements of an
action for recovery of ill-gotten wealth are sufficiently alleged in the complaint.
Hence, petitioner is not entitled to a bill of particulars.
A complaint is defined as a concise statement of the ultimate facts constituting
the plaintiff's cause or causes of action. 17 Like all other pleadings allowed by
the Rules of Court, 18 the complaint shall contain in a methodical and logical
form a plain, concise and direct statement of the ultimate facts on which the
plaintiff relies for his claim, omitting the statement of mere evidentiary facts. 19
Its office, purpose or function is to inform the defendant clearly and definitely of
the claims made against him so that he may be prepared to meet the issues at the
trial. The complaint should inform the defendant of all the material facts on which
the plaintiff relies to support his demand; it should state the theory of a cause of
action which forms the bases of the plaintiff's claim of liability. 20
The rules on pleading speak of two (2) kinds of facts: the first, the "ultimate
facts", and the second, the "evidentiary facts." In Remitere vs. Vda. de Yulo, 21
the term "ultimate facts" was defined and explained as follows:
The term "ultimate facts" as used in Sec. 3, Rule 3 of the Rules of Court, means
the essential facts constituting the plaintiffs cause of action. A fact is essential if
it cannot be stricken out without leaving the statement of the cause of action
insufficient. . . . (Moran, Rules of Court, Vol. 1, 1963 ed., p. 213).
Ultimate facts are important and substantial facts which either directly form the
basis of the primary right and duty, or which directly make up the wrongful acts
or omissions of the defendant. The term does not refer to the details of probative
matter or particulars of evidence by which these material elements are to be
established. It refers to principal, determinate, constitutive facts, upon the
existence of which, the entire cause of action rests.
while the term "evidentiary fact" has been defined in the following tenor:
Those facts which are necessary for determination of the ultimate facts; they are
the premises upon which conclusions of ultimate facts are based. Womack v.
Industrial Comm., 168 Colo. 364,451 P. 2d 761, 764. Facts which furnish
evidence of existence of some other fact. 22
Where the complaint states ultimate facts that constitute the three (3) essential
elements of a cause of action, namely: (1) the legal right of the plaintiff, (2) the
correlative obligation of the defendant, and (3) the act or omission of the
defendant in violation of said legal right, the complaint states a cause of action,
otherwise, the complaint must succumb to a motion to dismiss on that ground of
failure to state a cause of action. 23 However, where the allegations of the
complaint are vague, indefinite, or in the form of conclusions, the proper recourse
would be, not a motion to dismiss, but a motion for a bill of particulars. 24 Thus,
Section 1, Rule 12 of the Rules of Court provides:
Before responding to a pleading or, if no responsive pleading is permitted by
these rules, within ten (10) days after service of the pleading upon him, a party
may move for a more definite statement or for a bill of particulars of any matter
which is not averred with sufficient definiteness or particularity to enable him
properly to prepare his responsive pleading or to prepare for trial. Such motion
shall point out the defects complained of and the details desired.
In this connection, the following allegations have been held as mere conclusions
of law, inferences from facts not alleged or opinion of the pleader: (a) the
allegations that defendants appellees were "actuated by ulterior motives, contrary
to law and morals, with abuse of their advantageous position as employers, in
gross and evident bad faith and without giving plaintiff . . . his due, wilfully,
maliciously, unlawfully, and in summary and arbitrary manner", are conclusions
of law, inferences from facts not alleged and expressions of opinion unsupported
by factual premises; 25 (b) an allegation of duty in terms unaccompanied by a
statement of facts showing the existence of the duty, is a mere conclusion of law,
unless there is a relation set forth from which the law raises the duty; 26 (c) an
averment . . . that an act was "unlawful" or "wrongful" is a mere legal conclusion
or opinion of the pleader; 27 (d) the allegation that there was a violation of trust
was plainly a conclusion of law, for "a mere allegation that it was the duty of a
party to do this or that, or that he was guilty of a breach of duty, is a statement of
a conclusion, not of a fact;" 28 (e) an allegation that a contract is valid or void, is
a mere conclusion of law; 29 (f) the averment in the complaint that "defendant
usurped the office of Senator of the Philippines" is a conclusion of law — not a
statement of fact — inasmuch as the particular facts on which the alleged
usurpation is predicated are not set forth therein; 30 and (g) the averment that
"with intent of circumventing the constitutional prohibition that 'no officer or
employee in the civil service shall be removed or suspended except for cause as
provided by law', respondents maliciously and illegally for the purpose of
political persecution and political vengeance, reverted the fund of the salary item
. . . and furthermore eliminated or abolished the said position effective 1 July
1960" is a mere conclusion of law unsupported by factual premises. 31
Bearing in mind the foregoing rules on pleading and case law, let us now examine
the allegations of the Second Amended Complaint against the petitioner to
determine whether or no they were averred with sufficient definiteness or
particularity to enable him properly to prepare his responsive pleading or to
prepare for trial. If the allegations of the said complaint are vague, indefinite or
in the form of conclusions, then petitioner is entitled to a bill of particulars.
The allegations in the complaint pertaining to the alleged culpable and unlawful
acts of herein petitioner are quoted hereunder as follows:
GENERAL AVERMENTS OF DEFENDANTS' ILLEGAL ACTS
9. (a) From the early years of his presidency, Defendant Ferdinand E. Marcos
took undue advantage of his powers as President. All throughout the period from
September 21, 1972 to February 25, 1986, he gravely abused his powers under
martial law and ruled as Dictator under the 1973 Marcos-promulgated
Constitution. Defendant Ferdinand E. Marcos, together with other Defendants,
acting singly or collectively, and/or in unlawful concert with one another, in
flagrant breach of public trust and of their fiduciary obligations as public officers,
with gross and scandalous abuse of right and power and in brazen violation of the
Constitution and laws of the Philippines, embarked upon a systematic plan to
accumulate ill-gotten wealth;
(b) Upon his unfettered discretion, and sole authority, for the purpose of
implementing the plan referred to above, Defendant Ferdinand E. Marcos ordered
and caused, among others:
(b-i) the massive and unlawful withdrawal of funds, securities, reserves and other
assets and property from the National Treasury, the Central Bank, the other
financial institutions and depositories of Plaintiff;
(b-ii) the transfer of such funds, securities, reserves and other assets and property
to payees or transferees of his choice and whether and in what manner such
transactions should be recorded in the books and records of these institutions and
other depositories of Plaintiff;
10. Among others, in furtherance of the plan and acting in the manner referred to
above, in unlawful concerted with one another and with gross abuse of power and
authority, Defendants Ferdinand E. Marcos and Imelda R. Marcos;
b. Converted government-owned and controlled corporations into private
enterprises and appropriated them and/or their assets for their own benefit and
enrichment;
c. Awarded contracts with the Government to their relatives, business associates,
dummies, nominees, agents or persons who were beholden to said Defendants,
under terms and conditions grossly and manifestly disadvantageous to the
Government;
d. Misappropriated, embezzled and/or converted to their own use funds of
Government financial institutions, particularly those allocated to the Office of the
President and other ministries and agencies of the Government including, those
conveniently denominated as intelligence or counter-insurgency funds, as well as
funds provided to Plaintiff by foreign countries, multinationals, public and
private financial institutions;
e. Raided Government financial and banking institutions of billions of pesos in
loans, guarantees and other types of finance ial accommodations to finance
dubious and/or overpriced projects of favored corporations or individuals and
misused and/or converted to their own use and benefit deposits found therein to
the financial ruin of Plaintiff and the Filipino people;
h. Sold, conveyed and/or transferred Government property, real and/or personal,
to corporations beneficially held and/ or controlled by them or through third
persons, under such terms and conditions grossly and manifestly disadvantageous
to the Government;
i. Engaged in other illegal and improper acts and practices designed to defraud
Plaintiff and the Filipino people, or otherwise misappropriated and converted to
their own use, benefit and enrichment the lawful patrimony and revenues of
Plaintiff and the Filipino people.
11. Among the assets acquired by Defendants in the manner above-described and
discovered by the Commission in the exercise of its official responsibilities are
funds and other property listed in Annex "A" hereof and made an integral part of
this Complaint.
12. Defendants, acting singly or collectively, and/or in unlawful concert with one
another, for the purpose of preventing disclosure and avoiding discovery of their
unmitigated plunder of the National Treasury and of their other illegal acts, and
employing the services of prominent lawyers, accountants, financial experts,
businessmen and other persons, deposited, kept and invested funds, securities and
other assets estimated at billions of US dollars in various banks, financial
institutions, trust or investment companies and with persons here and abroad.
V.SPECIFIC AVERMENTS OF DEFENDANTS' ILLEGAL ACTS
14. Defendants Benjamin (Kokoy) Romualdez and Juliette Gomez Romualdez,
acting by themselves and/or in unlawful concert with Defendants Ferdinand E.
Marcos and Imelda R. Marcos, and taking undue advantage of their relationship,
influence and connection with the latter Defendant spouses, engaged in devices,
schemes and strategems to unjustly enrich themselves at the expense of Plaintiff
and the Filipino people, among others:
(a) obtained, with the active collaboration of Defendants Senen J. Gabaldon,
Mario D. Camacho, Mamerto Nepomuceno, Carlos J. Valdes, Delia Tantuico,
Jovencio F. Cinco, Cesar C. Zalamea and Francisco Tantuico, control of some of
the biggest business enterprises in the Philippines, such as, the Manila Electric
Company (MERALCO), Benguet Consolidated Mining Corporation
(BENGUET) and the Pilipinas Shell Corporation, by employing devious
financial schemes and techniques calculated to require the massive infusion and
hemmorrhage of government funds with minimum or negligible "cashout" from
Defendant Benjamin Romualdez. The following are the general features of a
classic take-over bid by Defendant Benjamin Romualdez:
(ii) The shares were held in the name of corporations which were
organized soldely (sic) for the purpose of holding title to them. These
corporations did not have any operating history nor any financial track
record. Projected cash flow consisted almost solely of future and
contingent dividends on the shares held. In spite of these limitations,
these companies enjoyed excellent credit lines from banks and other
financial institutions, as evidenced by the millions of pesos in loan and
guarantees outstanding in their books;
(iii) The "seed money" used to wrest control came from government and
taxpayers' money in the form of millions of pesos in loans, guarantees
and standby L/C's from government financial institutions, notably the
DBP and PNB, which were in turn rediscounted with the Central Bank;
(iv) Additional funding was provided from the related interests; and
 (v) This intricate (sic) skein of inter-corporate dealings was controlled
and administered by an exclusive and closely knit group of interlocking
directorate and officership
(g) Secured, in a veiled attempt to justify MERALCO's anomalous acquisition of
the electric cooperatives, with the active collaborations of Defendants Cesar E.
A. Virata, Juanita R. Remulla, Isidro Rodriguez, Jose C. Hernandez, Pedro
Dumol, Ricardo C. Galing, Francisco C. Gatmaitan, Mario D. Camacho and the
rest of the Defendants, the approval by Defendant Ferdinand E. Marcos and his
cabinet of the so-called "Three-Year Program for the Extension of MERALCO's
Services to Areas Within The 60-kilometer Radius of Manila", which required
government capital investment amounting to millions of pesos;
(1) Caused the National Investment and Development Corporation (NIDC) to
dispose of its interest in the oil plants located in Tanauan, Leyte, which were
owned and operated by its subsidiary, the NIDC Oil Mills, Inc., in favor of the
SOLO II, Inc., a corporation beneficially held and controlled by Defendant
Benjamin Romualdez, with the active collaboration of Defendants Jose Sandejas,
Francisco Tantuico and Dominador G. Ingco, under terms and conditions grossly
disadvantageous to NIDC, to the grave and irreparable damage of Plaintiff and
the Filipino people.
(2) Defendant Francisco Tantuico, taking undue advantage of his position as
Chairman of the Commission on Audit and with grave failure to perform his
constitutional duties as such Chairman, acting in concert with Defendants
Ferdinand E. Marcos and Imelda R. Marcos, facilitated and made possible the
withdrawals, disbursements and questionable use of government funds as stated
in the foregoing paragraphs to the grave and irreparable damage and injury of
Plaintiff and the entire Filipino people.
17. The following Defendants acted as dummies, nominees and/ or agents by
allowing themselves (i) to be used as instruments in accumulating ill-gotten
wealth through government concessions, orders and/or policies prejudicial to
Plaintiff, or (ii) to be incorporators, directors, or members of corporations held
and/or controlled by Defendants Ferdinand E. Marcos, Imelda R. Marcos,
Benjamin (Kokoy) Romualdez, and Juliette Gomez Romualdez in order conceal
(sic) and prevent recovery of assets illegally obtained: Francisco Tantuico . . .
17.a. THE NAMES OF SOME OF THE CORPORATIONS BENEFICALLY
HELD AND/OR CONTROLLED BY THE DEFENDANTS BENJAMIN
(KOKOY) ROMUALDEZ, FERDINAND E. MARCOS AND IMELDA R.
MARCOS WHERE THE POSITIONS/PARTICIPATIONS AND/OR
INVOLVEMENTS OF SOME OF THE DEFENDANTS AS DUMMIES,
NOMINEES AND/OR AGENTS ARE INDICATED ARE LISTED IN ANNEX
"B" HEREOF AND MADE AN INTEGRAL PART OF THIS COMPLAINT.
18. The acts of Defendants, singly or collectively, and/or in unlawful concert with
one another, constitute gross abuse of official position and authority, flagrant
breach of public trust and fiduciary obligations, acquisition of unexplained
wealth, brazen abuse of official position and authority, flagrant breach of public
trust and fiduciary obligations, acquisition of unexplained wealth, brazen abuse
of right and power, unjust enrichment, violation of the Constitution and laws of
the Republic of the Philippines, to the grave and irreparable damage of Plaintiff
and the Filipino people. (Emphasis supplied)
Let us now analyze and discuss the allegations of the complaint in relation to
which the petitioner pleads for a bill of particulars.
As quoted above, paragraph 9(a) of the complaint alleges that "Defendant
Ferdinand E. Marcos, together with other Defendants, acting singly or
collectively, and/or in unlawful concert with one another, in flagrant breach of
public trust and of their fiduciary obligations as public officers, with gross and
scandalous abuse of right and power and in brazen violation of the Constitution
and laws of the Philippines, embarked upon a systematic plan to accumulate ill-
gotten wealth." In the light of the rules on pleading and case law cited above, the
allegations that defendant Ferdinand E. Marcos, together with the other
defendants "embarked upon a systematic plan to accumulate ill-gotten wealth"
and that said defendants acted "in flagrant breach of public trust and of their
fiduciary obligations as public officers, with gross and scandalous abuse of right
and in brazen violation of the Constitution and laws of the Philippines", are
conclusions of law unsupported by factual premises.
Nothing is said in the complaint about the petitioner's acts in execution of the
alleged "systematic plan to accumulate ill-gotten wealth", or which are supposed
to constitute "flagrant breach of public trust", "gross and scandalous abuse of
right and power", and "violations of the Constitution and laws of the Philippines".
The complaint does not even allege what duties the petitioner failed to perform,
or the particular rights he abused.
Likewise, paragraph 15 avers that "defendant Francisco Tantuico, taking undue
advantage of his position as Chairman of the Commission on Audit and with
grave failure to perform his constitutional duties as such Chairman, acting in
concert with Defendants Ferdinand E. Marcos and Imelda R. Marcos facilitated
and made possible the withdrawals, disbursements and questionable use of
government funds as stated in the foregoing paragraphs to the grave and
irreparable damage and injury of Plaintiff and the entire Filipino people." In like
manner, the allegation that petitioner "took undue advantage of his position as
Chairman of the Commission on Audit," that he "failed to perform his
constitutional duties as such Chairman," and acting in concert with Ferdinand E.
Marcos and Imelda R. Marcos, "facilitated and made possible the withdrawals,
disbursements, and questionable use of government funds as stated in the
foregoing paragraphs, to the grave and irreparable damage and injury of plaintiff
and the entire Filipino people", are mere conclusions of law. Nowhere in the
complaint is there any allegation as to how such duty came about, or what
petitioner's duties were, with respect to the alleged withdrawals and
disbursements or how petitioner facilitated the alleged withdrawals,
disbursements, or conversion of public funds and properties, nor an allegation
from where the withdrawals and disbursements came from, except for a general
allegation that they came from the national treasury. On top of that, the complaint
does not even contain any factual allegation which would show that whatever
withdrawals, disbursements, or conversions were made, were indeed subject to
audit by the COA.
In this connection, it may well be stated that the Commission on Audit (COA) is
an independent, constitutional commission, which has no power or authority to
withdraw, disburse, or use funds and property pertaining to other government
offices or agencies. This is done by the agency or office itself, the chief or head
of which is primarily and directly responsible for the funds and property
pertaining to such office or agency. 32 The COA is merely authorized to audit,
examine and settle accounts of the various government offices or agencies, and
this task is performed not by the Chairman of the COA but by the COA auditors
assigned to the government office or agency subject to COA audit.
Thus, in each agency of the government, there is an auditing unit headed by an
auditor, whose duty is to audit and settle the accounts, funds, financial
transactions, and resources of the agency under his audit jurisdiction. 33 The
decision of the auditor is appealable to the Regional Director, 34 whose decision,
is in turn, appealable to the COA Manager. 35 Any party dissatisfied with the
decision of the COA Manager may bring the matter on appeal to the Commission
proper, a collegiate body exercising quasi-judicial functions, composed of three
(3) COA Commissioners, with the COA Chairman as presiding officer. 36 It is
only at this stage that the COA Chairman would come to know of the matter and
be called upon to act on the same, and only if an aggrieved party brings the matter
on appeal.
In other words, the Chairman of the COA does not participate or personally audit
all disbursements and withdrawals of government funds, as well as transactions
involving government property. The averments in the particular paragraph of the
complaint merely assume that petitioner participated in or personally audited all
disbursements and withdrawals of government funds, and all transactions
involving government property. Hence, the alleged withdrawals, disbursements
and questionable use of government funds could not have been, as held by
respondent Sandiganbayan, "within the peculiar and intimate knowledge of
petitioner as Chairman of the COA."
The complaint further avers in paragraph 17 that "(t)he following Defendants
acted as dummies, nominees and/or agents by allowing themselves (i) to be
instruments in accumulating ill-gotten wealth through government concessions,
order and/or policies prejudicial to Plaintiff, or (ii) to be incorporators, directors,
or members of corporations beneficially held and/or controlled by Defendant
Ferdinand E. Marcos, Imelda R. Marcos, Benjamin (Kokoy) T. Romualdez and
Juliette Gomez Romualdez in order to conceal and prevent recovery of assets
illegally obtained: Francisco Tantuico . . ." 37 Again, the allegation that petitioner
acted as dummy, nominee, or agent by allowing himself "to be used as instrument
in accumulating ill-gotten wealth through government concessions, orders and/or
policies prejudicial to Plaintiff" or "to be (an) incorporator, director, or member
of corporations beneficially held and/or controlled" by the Marcoses and
Romualdezes, is a conclusion of law without factual basis.
The complaint does not contain any allegation as to how petitioner became, or
why he is perceived to be, a dummy, nominee or agent. Besides, there is no
averment in the complaint how petitioner allowed himself to be used as
instrument in the accumulation of ill-gotten wealth, what the concessions, orders
and/or policies prejudicial to plaintiff are, why they are prejudicial, and what
petitioner had to do with the granting, issuance, and or formulation of such
concessions, orders, and/or policies. Moreover, Annex "A" of the complaint lists
down sixty-one (61) corporations which are supposed to be beneficially owned
or controlled by the Marcoses and Romualdezes. However, the complaint does
not state which corporations petitioner is supposed to be a stockholder, director,
member, dummy, nominee and/or agent. More significantly, the petitioner's name
does not even appear in Annex "B" of the complaint, which is a listing of the
alleged "Positions and Participations of Some Defendants".
The allegations in the complaint, above-referred to, pertaining to petitioner are,
therefore, deficient in that they merely articulate conclusions of law and
presumptions unsupported by factual premises. Hence, without the particulars
prayed for in petitioner's motion for a bill of particulars, it can be said the
petitioner can not intelligently prepare his responsive pleading and for trial.
Furthermore, the particulars prayed for, such as, names of persons, names of
corporations, dates, amounts involved, specification of property for identification
purposes, the particular transactions involving withdrawals and disbursements,
and a statement of other material facts as would support the conclusions and
inferences in the complaint, are not evidentiary in nature. On the contrary, those
particulars are material facts that should be clearly and definitely averred in the
complaint in order that the defendant may, in fairness, be informed of the claims
made against him to the end that he may be prepared to meet the issues at the
trial.
Thus, it has been held that the purpose or object of a bill of particulars is —
. . . to amplify or limit a pleading, specify more minutely and particularly a claim
or defense set up and pleaded in general terms, give information, not contained
in the pleading, to the opposite party and the court as to the precise nature,
character, scope, and extent of the cause of action or defense relied on by the
pleader, and apprise the opposite party of the case which he has to meet, to the
end that the proof at the trial may be limited to the matters specified, and in order
that surprise at, and needless preparation for, the trial may be avoided, and that
the opposite party may be aided in framing his answering pleading and preparing
for trial. It has also been stated that it is the function or purpose of a bill of
particulars to define, clarify, particularize, and limit or circumscribe the issues in
the case, to expedite the trial, and assist the court. A general function or purpose
of a bill of particulars is to prevent injustice or do justice in the case when that
cannot be accomplished without the aid of such a bill. 38
Anent the contention of the Solicitor General that the petitioner is not entitled to
a bill of particulars because the ultimate facts constituting the three (3) essential
elements of a cause of action for recovery of ill-gotten wealth have been
sufficiently alleged in the complaint, it would suffice to state that in a motion for
a bill of particulars, the only question to be resolved is whether or not the
allegations of the complaint are averred with sufficient definiteness or
particularity to enable the movant properly to prepare his responsive pleading and
to prepare for trial. As already discussed, the allegations of the complaint
pertaining to the herein petitioner are deficient because the averments therein are
mere conclusions of law or presumptions, unsupported by factual premises.
In the light of the foregoing, the respondent Sandiganbayan acted with grave
abuse of discretion amounting to lack or excess of jurisdiction in promulgating
the questioned resolutions.
WHEREFORE, the petition is GRANTED and the resolutions dated 21 April
1989 and 29 May 1989 are hereby ANNULLED and SET ASIDE. The
respondents are hereby ordered to PREPARE and FILE a Bill of Particulars
containing the facts prayed for by petitioner within TWENTY (20) DAYS from
notice, and should they fail to submit the said Bill of Particulars, respondent
Sandiganbayan is ordered TO EXCLUDE the herein petitioner as defendant in
Civil Case No. 0035.
SO ORDERED.
Note.—The proper office of a bill of particulars is to inform the opposite party
and the court of the precise nature and character of the cause of action. (Tan vs.
Sandiganbayan, 180 SCRA 34.) Tantuico, Jr. vs. Republic, 204 SCRA 428, G.R.
No. 89114 December 2, 1991
G.R. No. 94093. August 10, 1993
FAR EAST MARBLE (PHILS.), INC., LUIS R. TABUENA, JR. and
RAMON A. TABUENA, petitioners, vs. HONORABLE COURT OF
APPEALS and BANK OF PHILIPPINE ISLANDS, respondents.
Civil Procedure; Pleadings; Complaint; Sufficiency of cause of action.—
Basically, a cause of action consists of three elements, namely: (1) the legal right
of the plaintiff; (2) the correlative obligation of the defendant; and (3) the act or
omission of the defendant in violation of said legal right (Nabus vs. Court of
Appeals, et al., 193 SCRA 732 [1991]); Rebollido vs. Court of Appeals, et al.,
170 SCRA 800 [1989]). These elements are manifest in BPI’s complaint,
particularly when it was therein alleged that: (1) for valuable consideration, BPI
granted several loans, evidenced by promissory notes, and extended credit
facilities in the form of trust receipts to Far East (photocopies of said notes and
receipts were duly attached to the Complaint); (2) said promissory notes and trust
receipts had matured; and (3) despite repeated requests and demands for payment
thereof, Far East had failed and refused to pay. Clearly then, the general
allegation of BPI that “despite repeated requests and demands for payment, Far
East has failed to pay” is sufficient to establish BPI’s cause of action.
Same; Same; Same; Same.—A complaint is sufficient if it contains sufficient
notice of the cause of action even though the allegation may be vague or
indefinite, for in such case, the recourse of the defendant would be to file a motion
for a bill of particulars (Ramos vs. Condez, 20 SCRA 1146 [1967]). It is indeed
the better rule that, pleadings, as well as remedial laws, should be liberally
construed so that the litigants may have ample opportunity to prove their
respective claims so as to avoid possible denial of substantial justice due to legal
technicalities (Adamao, et al. vs. Intermediate Appellate Court, et al., 191 SCRA
195 [1990]). Far East Marble (Phils.), Inc. vs. Court of Appeals, 225 SCRA 249,
G.R. No. 94093 August 10, 1993
This has reference to a petition for review by certiorari seeking the reversal of
the decision of the Court of Appeals dated June 26, 1990, in CA-G.R. CV No.
14404 (Bellosillo (P), Marigomen, Sempio-Diy, JJ.) which set aside the order of
the Regional Trial Court of the National Capital Judicial Region (Manila, Branch
XIV), dated June 1, 1987 and remanded the case to the court a quo for further
proceedings on the grounds that the complaint for foreclosure of chattel mortgage
with replevin had not prescribed and that, there being a cause of action, further
proceedings, including the resolution of the motion for summary judgment may
be pursued.
The antecedent facts of the case may be chronicled as follows:
On February 5, 1987, herein respondent Bank of the Philippines Islands (BPI)
filed a complaint for foreclosure of chattel mortgage with replevin against
petitioner Far East Marble (Phils.), Inc. (Far East), Ramon A. Tabuena and Luis
R. Tabuena, Jr. which was docketed as Civil Case No. 87-39345 of Branch XIV
of the Regional Trial Court of the National Capital Judicial Region stationed in
Manila.
The complaint pertinently alleged:
FIRST CAUSE OF ACTION AGAINST FAR EAST
2. That on various dates and for valuable consideration, the defendant Far East
received from Commercial Bank and Trust Company . . . now merged with and
into the plaintiff bank . . . several loans evidenced by promissory notes executed
by said Far East, photo copies of which are attached hereto and made integral
parts hereof as Annexes A, B and C.
3. That said promissory notes . . . .have long matured but despite repeated requests
and demands for payment thereof with interests and related charges due, Far East
has failed and refused to pay. The account due on said promissory notes with
interests and related charges as of 10 September 1986 is P4,471,854.32 itemized
in a statement of account, copy of which is attached hereto and made a part hereof
as Annex D
4. That because of Far East's failure and refusal in bad faith to pay its long past
due obligations under the promissory notes above alleged, plaintiff was
constrained to file this suit . . .
SECOND CAUSE OF ACTION AGAINST FAR EAST
6. That on various dates and for valuable consideration, the defendant Far East
received from and was extended by . . . plaintiff
Bank . . . credit facilities in the form of Trust Receipts, photo copies of which are
hereto attached and made integral parts hereof as Annexes E, F, G, H, I and J.
7. That said Trust Receipts . . . have long matured and despite repeated requests
and demands for payment thereof with interests and related charges due Far East
has failed and refused to pay. The amount due on said Trust Receipts with
interests and related charges as of 10 September 1986 is P2,170,476.62 as
itemized in a statement of account, copy of which is attached hereto and made an
integral part hereof as
Annex K.
8. That because of far East's failure and refusal to pay its long past due obligations
under the Trust Receipts above alleged, plaintiff was constrained to file this suit
...
xxx xxx xxx
10. That in September 1976 Far East executed in favor of . . . plaintiff Bank . . .
a Chattel Mortgage, photocopy of which is attached hereto and made an integral
part hereof as Annex L, to secure the payment of its loan obligations including
interests and related charges. . .
xxx xxx xxx
CAUSE OF ACTION AGAINST INDIVIDUAL DEFENDANTS RAMON A.
TABUENA AND LUIS R. TABUENA, JR.
13. That in September 1976, defendants Ramon A. Tabuena and Luis R. Tabuena,
Jr. executed in favor of . . . plaintiff Bank . . . a "continuing guaranty" photocopy
of which is attached hereto and made a part hereof as Annex M, whereby they
bind themselves, jointly and severally, to answer for the loan obligations to the
Bank of defendant Far East.
14. That despite requests and demands for their payment of Far East's long past
due accounts, said defendants Ramon A. Tabuena and Luis R. Tabuena, Jr. have
failed and refused to pay said Far East accounts and have already defaulted in
their solidary obligation under said "continuing Guaranty."
15. That because of the failure and refusal of defendants Ramon A. Tabuena and
Luis R. Tabuena, Jr. in bad faith to pay Far East's past due accounts under their
solidary obligation stipulated in said "Continuing Guaranty,". . . plaintiff has been
constrained to file suit against them . . .
(pp. 32-36, Rollo.)
On March 10, 1987, Far East filed an answer with compulsory counterclaim
admitting the genuineness and due execution of the promissory notes attached as
Annexes A, B, and C to the complaint, but alleging further that said notes became
due and demandable on November 19, 1976, respectively. On the basis of the
maturity dates of the notes, Far East thereupon raised the affirmative defenses of
prescription and lack of cause of action as it denied the allegation of the complaint
that BPI had made previous repeated requests and demands for payment. Far East
claimed that during the more than 10 years which elapsed from the dates of
maturity of said obligations up to the time the action for foreclosure of the chattel
mortgage securing said obligations was filed, it had not received from BPI or its
predecessor any demand for payment and thus, it had "labored under the belief
that they [the obligations] have already been written off" in the books of BPI.
Moreover, Far East denied the genuineness and due execution of the trust receipts
and of the Statement of Account (pp. 78-79, Rollo). A motion to hear affirmative
defenses was attached to the answer.
On March 16, 1987, BPI filed an opposition to the motion to hear affirmative
defenses, alleging that its cause of action against Far East have not prescribed,
since within 10 years from the time its cause of action accrued, various written
extrajudicial demands (attached thereto as Annexes "A" and
"A-1") were sent by BPI and received by Far East. Moreover, BPI offered several
written documents whereby Far East supposedly acknowledged its debt to BPI
(Annexes "B" to "B-6). Withal, BPI maintained, the ten-years prescriptive period
to enforce its written contract had not only been interrupted, but was renewed.
On the same date, BPI filed a motion for summary judgment on the ground that
since Far East had admitted the genuineness and due execution of the promissory
notes and the deed of chattel mortgage annexed to its complaint, there was no
genuine issue as to any material fact, thus entitling BPI to a favorable judgment
as a matter of law in regard to its causes of action and on its right to foreclose the
chattel mortgage.
On June 1, 1987, the trial court issued an order to the following effect:
WHEREFORE, the Court issues this Order:
1 — Dismissing the complaint against the defendant Far East Marble (Phils.) Inc.
for lack of cause of action and on grounds of pre[s]cription:
2 — Denying for lack of merit the Motion for Summary Judgment and the
Supplemental Motion for Summary Judgment;
3 — Striking off from the records the order of March 6, 1987 and recalling the
writ of replevin issued by this Court, and dismissing all the contempt charges;
4 — Ordering the Sheriff to desist permanently from enforcing the writ of seizure
and to return all the property seized by him under the Writ of Replevin, to the
defendant Far East Marble (Phils.) Inc. immediately from receipt of a copy of this
order, and in case of his failure to do so, the value thereof shall be charged against
the replevin bond. (pp. 89-90, Rollo.)
An appeal therefrom was forthwith interposed by BPI, assailing the findings of
the trial court with respect to its finding that BPI's cause of action has prescribed
and the consequent denial of the motion for summary judgment.
On June 26, 1990, the Court of Appeals rendered a decision setting aside the June
1, 1987 order of the court of origin and remanding the case to said court for
further proceedings, "including the resolution anew of plaintiff's motion for
summary judgment . . ., reception of the evidence of the parties and, thereafter,
to decide the case as the facts may warrant." (pp. 98-99, Rollo.)
Hence, the instant petition for review on certiorari filed by Far East, anchored on
the following assigned errors:
I [1990]; Gan vs. Licup Design Group, Inc., G.R. NO. 94264, July 24, 1990, En
THE COURT OF APPEALS ERRED WHEN IT DISREGARDED THE
FINDINGS OF THE TRIAL COURT THAT PRESCRIPTION HAS SET IN
OBLIVIOUS OF THE FACT THAT THIS FINDING WAS REACHED AFTER
DUE HEARING.
II
THE COURT OF APPEALS GRAVELY ERRED IN RULING FOR A
REOPENING OF THE TRIAL FOR THE RECEPTION OF EVIDENCE ON
BOTH ISSUES OF PRESCRIPTION AND SUMMARY JUDGMENT WHEN
THESE WERE ALREADY TRIED AND WEIGHED BY THE TRIAL COURT.
III
THE COURT OF APPEALS ERRED IN ASSUMING JURISDICTION OVER
THE CASE CONSIDERING THAT THE ISSUES RAISED THEREIN
INVOLVE PURE QUESTIONS OF LAW. (p. 14, Rollo.)
The issue of jurisdiction being basis, we shall endeavor to dispose of it ahead of
the other topics raised by petitioners
Petitioner Far East maintains the position that the Court of Appeals stepped
beyond the limits of its authority when it assumed jurisdiction over the appeal
filed by BPI inasmuch as said appeal raised only the pure questions of law or
whether or not the trial court erred: (1) in dismissing BPI's complaint for lack of
cause of action; (2) in finding that BPI's cause of action had prescribed; and (3)
in ruling that BPI is not entitled to summary judgment on its causes of action
against Far East. Consequently, Far East contends, BPI should have taken its case
directly to this Court.
There is no dispute with respect to the fact that when an appeal raises only pure
questions of law, it is only this Court which has jurisdiction to entertain the same
(Article VIII, Section 5 (2) (e), 1987 Constitution; Rule 45, Rules of Court; see
also Santos, Jr. vs. Court of Appeals, 152 SCRA 378 [1987]). On the other hand,
appeals involving both questions of law and fact fall within the exclusive
appellate jurisdiction of the Court of Appeals. At this point, there seems to be a
need to distinguish a question of law from a question of fact.
It has been held in a number of cases (Medina vs. Asistio, Jr., 191 SCRA 218
Banc, Minute Resolution; Pilar Development Corp. vs. Intermediate Appellate
Court, et al., 146 SCRA 215 [1986]; Ramos vs. Pepsi-Cola Bottling Co., 19
SCRA 289 [1967]; Consolidated Mines, Inc. vs. Court of Tax Appeals, et al., 58
SCRA 618 [1974]), that there is a "question of law" when there is doubt or
difference of opinion as to what the law is on certain state of facts and which does
not call for an examination of the probative value of the evidence presented by
the parties-litigants. On the other hand, there is a "question of fact" when
the doubt or controversy arises as to the truth or falsity of the alleged facts.
Simply put, when there is no dispute as to fact, the question of whether or not the
conclusion drawn therefrom is correct is a question of law.
In the case at bar, BPI alleged in its complaint (Rollo, p. 42) that on various dates
and for valuable consideration, it extended to Far East several loans, evidenced
by promissory notes, and credit facilities in the form of trust receipts, and
that despite repeated requests and demands for payment thereof, Far East had
failed and refused to pay. Thus BPI sought foreclosure of the chattel mortgage
securing such indebtedness.
In its answer (Rollo, p. 78), Far East admitted the genuineness and due execution
of the promissory notes involved in the case, but denied BPI's allegation that
repeated demands for payment were made by BPI on it. Far East then raised the
affirmative defenses of prescription and lack of cause of action, arguing that since
the promissory notes matured in 1976 while BPI filed its action to foreclose the
chattel mortgage only in 1987 (or more than 10 years from the time its cause of
action accrued), and there being no demand for payment which would interrupt
the period of prescription for instituting said action, BPI's claims have prescribed.
BPI, however, countered that its allegation of repeated demands on Far East for
payment sufficiently stated a cause of action; that within ten years from the time
its cause of action accrued in 1976, it sent written extrajudicial demands on Far
East requesting payment of its due and outstanding obligations; that within that
10-years period, it received written acknowledgments of debt from Far East; and,
that these demands for payment and acknowledgments of debt effectively
interrupted and renewed the prescriptive period. Worth noting is the fact that the
acknowledgment of debt and the demands for payment, including the affidavits
of BPI's counsel who prepared the demand letter and that of BPI's messenger who
allegedly personally delivered said letters to Far East were duly annexed to BPI's
pleadings.
From the foregoing exchange of pleading, the conflicting allegations of fact by
the contending parties sprung forth. It is thus quite obvious that the controversy
centered on, and the doubt arose with respect to, the very existence of previous
demands for payment allegedly made by BPI on petitioner Far East, receipt of
which was denied by the latter. This dispute or controversy inevitably raised a
question of fact. Such being the case, the appeal taken by BPI to the Court of
Appeals was proper.
We now come to petitioner's first two assigned errors.
The trial court's finding that BPI's claims due to prescription, can no longer
prosper, is inextricably connected with, and underpinned by, its other conclusion
that BPI's allegation that it made "repeated requests and demands for payment"
is not sufficient to state a cause of action. Moreover, in its questioned Order
(Rollo, p. 88) dated June 1, 1987, the trial court held that:
Apart from the fact that the complaint failed to allege that the period of
prescription was interrupted, the phrase "repeated requests and demands for
payment" is vague and incomplete as to establish in the minds of the defendant,
or to enable the Court to draw a conclusion, that demands or acknowledgment [of
debt] were made that could have interrupted the period of prescription. (p.
88, Rollo.).
Seemingly, therefore, the trial court believed that the interruption of the
prescriptive period to institute an action is an ULTIMATE FACT which had to
be expressly and indispensably pleaded by BPI in its complaint, and that failure
to so alleged such circumstance is fatal to BPI's cause of action.
We believe and hold otherwise.
Section 3 of Rule 6 state that a "complaint is a concise statement of the ultimate
facts constituting the plaintiff's cause or causes of action." Further elaborating
thereon, Section 1 of Rule 8 declares that every pleading, including, of course, a
complaint, "shall contain in a methodical and logical form, a plain, concise and
direct statement of the ultimate facts . . . omitting the statement of mere
evidentiary facts." "Ultimate facts" are the essential and substantial facts which
either form the basis of the primary right and duty or which directly make up the
wrongful acts or omissions of the defendant (Tantuico, Jr. vs. Republic of the
Phil., et al., 204 SCRA 428 [1991]), while "evidentiary facts" are those which
tend to prove or establish said ultimate facts.
What then are the ultimate facts which BPI had to allege in its complaint so as to
sufficiently establish its cause of action?
Basically, a cause of action consists of three elements, namely: (1) the legal right
of the plaintiff; (2) the correlative obligation of the defendant; and (3) the act or
omission of the defendant in violation of said legal right (Nabus vs. Court of
Appeals, et al., 193 SCRA 732 [1991]); Rebollido vs. Court of Appeals et al.,
170 SCRA 800 [1989]). These elements are manifest in BPI's complaint,
particularly when it was therein alleged that: (1) for valuable consideration, BPI
granted several loans, evidenced by promissory notes, and extended credit
facilities in the form of trust receipts to Far East (photocopies of said notes and
receipts were duly attached to the Complaint); (2) said promissory notes and trust
receipts had matured; and (3) despite repeated requests and demands for payment
thereof, Far East had failed and refused to pay.
Clearly then, the general allegation of BPI that "despite repeated requests and
demands for payment, Far East has failed to pay" is sufficient to establish BPI's
cause of action. Besides, prescription is not a cause of action; it is a
defense which, having been raised, should, as correctly ruled by the Court of
Appeals (DBP vs. Ozarraga, 15 SCRA 48 [1965]), be supported by competent
evidence. But even as Far East raised the defense of prescription, BPI countered
to the effect that the prescriptive period was interrupted and renewed by written
extrajudicial demands for payment and acknowledgment by Far East of the debt.
A complaint is sufficient if it contains sufficient notice of the cause of action even
though the allegation may be vague or indefinite, for in such case, the recourse
of the defendant would be to file a motion for a bill of particulars (Ramos vs.
Condez, 20 SCRA 1146 [1967]). It is indeed the better rule that, pleadings, as
well as remedial laws, should be liberally construed so that the litigants may have
ample opportunity to prove their respective claims so as to avoid possible denial
of substantial justice due to legal technicalities (Adamo, et al. vs. Intermediate
Appellate Court, et al., 191 SCRA 195 [1990]).

In the case at bar, the circumstances of BPI extending loans and credits to Far
East and the failure of the latter to pay and discharge the same upon maturity are
the only ultimate facts which have to be pleaded, although the facts necessary to
make the mortgage valid enforceable must be proven during the trial (Ortiz v.
Garcia, 15 Phil. 192 [1910]).

In fine, the finding of the trial court that prescription has set in is primarily
premised on a misappreciation of the sufficiency of BPI's allegation as above
discussed. The records will show that the hearing conducted by the trial court was
merely pro forma and the trial judge did not sufficiently address the issue of
whether or not a demand for payment in fact made by BPI and duly received by
herein petitioner Far East.

WHEREFORE, the instant petition is hereby DENIED and the decision of the
Court of Appeals hereby AFFIRMED. No special pronouncement is made as to
costs.

SO ORDERED.

Note.—In a motion to dismiss based on the failure of the complaint to state a

cause of action, the question submitted for determination is sufficiency of
allegation in the complaint itself (Calalang v. Intermediate Appellate Court, 194
SCRA 514). Far East Marble (Phils.), Inc. vs. Court of Appeals, 225 SCRA 249,
G.R. No. 94093 August 10, 1993
G.R. No. 106429. June 13, 1994.
JOSELITA SALITA, petitioner, vs. HON. DELILAH MAGTOLIS, in her
capacity as Judge of the RTC, Quezon City, Br. 107, and ERWIN
ESPINOSA, respondents.
Actions; Pleadings and Practice; Words and Phrases; Ultimate Facts, defined; A
complaint only needs to state the ultimate facts constituting the plaintiff’s cause
or causes of action.—A complaint only needs to state the “ultimate facts
constituting the plaintiff’s cause or causes of action.” Ultimate facts has been
defined as “those facts which the expected evidence will support.” As stated by
private respondent, “[t]he term does not refer to the details of probative matter or
particulars of evidence by which these material elements are to be established.”
It refers to “the facts which the evidence on the trial will prove, and not the
evidence which will be required to prove the existence of those facts.”
Same; Same; Bill of Particulars; A motion for bill of particulars may not call for
matters which should form part of the proof of the complaint upon trial.—And a
motion for bill of particulars will not be granted if the complaint, while not very
definite, nonetheless already states a sufficient cause of action. A motion for bill
of particulars may not call for matters which should form part of the proof of the
complaint upon trial. Such information may be obtained by other means.
Same; Same; Same; To obtain evidentiary matters is not the function of a motion
for bill of particulars.—Private respondent has already alleged that “she
(petitioner) was unable to understand and accept the demands made by his
profession x x x upon his time and efforts x x x x” Certainly, she can respond to
this. To demand for more details would indeed be asking for information on
evidentiary facts—facts necessary to prove essential or ultimate facts. For sure,
the additional facts called for by petitioner regarding her particular acts or
omissions would be evidentiary, and to obtain evidentiary matters is not the
function of a motion for bill of particulars.
Same; Same; Same; Present case distinguished from Tantuico, Jr. v. Republic; It
would be unreasonable, if not unfeeling, to document each and every
circumstance of marital disagreement. We distinguish the instant case from
Tantuico, Jr. v. Republic, 204 SCRA 428.—That ruling involves alleged
“misappropriation and theft of public funds, plunder of the nation’s wealth,
extortion, blackmail, bribery, embezzlement, and other acts of corruption,
betrayal of public trust and brazen abuse of power.” The respondents therein pray
for reconveyance, reversion, accounting, restitution and damages. There, the
alleged illicit acts should be fully documented. The instant case, on the other
hand, concerns marital relationship. It would be unreasonable, if not unfeeling,
to document each and every circumstance of marital disagreement. True, the
complaining spouse will have to prove his case, but that will not come until trial
begins.
Erwin Espinosa, 32, and Joselita Salita, 22, were married at the Roman Catholic
Church in Ermita, Manila, on 25 January 1986. A year later, their union turned
sour. They separated in fact in 1988. Subsequently, Erwin sued for annulment on
the ground of Joselita’s psychological incapacity.
The issue before us however is not the scope nor even the interpretation of Art.
36 of the Family Code. 1 Rather, the issue is the sufficiency of the allegations in
the petition for annulment of marriage and the subsequent bill of particulars filed
in amplification of the petition.
The petition for annulment was filed before the Regional Trial Court of Quezon
City on 7 January 1992. Therein it is alleged that "[s]ometime in 1987, petitioner
came to realize that respondent was psychologically incapacitated to comply with
the essential marital obligations of their marriage, which incapacity existed at the
time of the marriage although the same became manifest only
thereafter." 2 Dissatisfied with the allegation in the petition, Joselita moved for a
bill of particulars which the trial court granted. 3 Subsequently, in his Bill of
Particulars, Edwin specified that —
. . . at the time of their marriage, respondent (Joselita Salita) was psychologically
incapacitated to comply with the essential marital obligations of their marriage in
that she was unable to understand and accept the demands made by his profession
— that of a newly qualified Doctor of Medicine — upon petitioner’s time and
efforts so that she frequently complained of his lack of attention to her even to
her mother, whose intervention caused petitioner to lose his job.
Still Joselita was not contented with the Bill of Particulars. She argued that the
"assertion (in the Bill of Particulars) is a statement of legal conclusion made by
petitioner’s counsel and not an averment of ‘ultimate facts,’ as required by the
Rules of Court, from which such a conclusion may properly be inferred . . .
." 4 But finding the questioned Bill of Particulars adequate, the trial court issued
an order upholding its sufficiency and directing Joselita to file her responsive
pleading.
Joselita was not convinced. She filed a petition for certiorari with us. However,
we referred her petition to the Court of Appeals for resolution.
On 21 July 1992, the Court of Appeals denied due course to her petition thus —
In the case under consideration, Espinosa has amplified Salita’s alleged
psychological incapacity in his bill of particulars . . .
In our view, the aforesaid specification more than satisfies the Rules’ requirement
that a complaint must allege the ultimate facts constituting a plaintiff’s cause of
action. To require more details thereof, to insist on a specification of Salita’s
particular conduct or behavior with the corresponding ‘circumstances of time,
place and person’ indicating her alleged psychological incapacity would be to ask
for information on evidentiary matters. To obtain evidentiary details, Salita may
avail herself of the different modes of discovery provided by the Rules of Court
(Rules 24 to 28).
Whether Espinosa’s averments in his bill of particulars constitute psychological
incapacity in the contemplation of the Family Code is a question that may be
resolved in a motion to dismiss or after trial on the merits of the case, not in a
motion for bill of particulars. And certainly, that matter cannot be resolved in the
present petition. 5
Hence, the instant petition for review on certiorari filed by Joselita Salita
questioning the Resolution of the Court of Appeals denying due course to her
petition.
Petitioner insists that the allegations in the Bill of Particulars constitute a legal
conclusion, not an averment of facts, and fail to point out the specific essential
marital obligations she allegedly was not able to perform, and thus render the Bill
of Particulars insufficient if not irrelevant to her husband’s cause of action. She
rationalizes that her insistence on the specification of her particular conduct or
behavior with the corresponding circumstances of time, place and person does
not call for information on evidentiary matters because without these details she
cannot adequately and intelligently prepare her answer to the petition.
Private respondent on the other hand believes that his allegations in the Bill of
Particulars constitute the ultimate facts which the Rules of Court requires at this
point. He defines ultimate facts as —
. . . important and substantial facts which either directly form the basis of the
primary right and duty, or which directly make upon the wrongful acts or
omissions of the defendant. The term does not refer to the details of probative
matter or particulars of evidence by which these material elements are to be
established. It refers to principal, determinate facts upon the existence of which
the entire cause of action rests. 6
Ultimate facts are conclusions drawn from intermediate and evidentiary facts, or
allegations of mixed law and fact; they are conclusions from reflection and
natural reasoning on evidentiary fact. The ultimate facts which are to be pleaded
are the issuable, constitutive, or traversible facts essential to the statement of the
cause of action; the facts which the evidence on the trial will prove, and not the
evidence which will be required to prove the existence of those facts . . . 7
Private respondent further argues that "[c]onclusions of law and evidentiary
matters need not be stated in the complaint. The rules of pleading limit the
statement of the cause of action only to such operative facts as would give rise to
the right of action of the plaintiff to obtain relief against the wrongdoer. The
details of probative matter or particulars of evidence, statements of law,
inferences and arguments need not be stated." 8
In a nutshell, the ultimate question is whether the Bill of Particulars submitted by
herein respondent is of sufficient definiteness or particularity as to enable herein
petitioner to properly prepare her responsive pleading or for trial.
A complaint only needs to state the "ultimate facts constituting the plaintiff’s
cause or causes of action." 9 Ultimate facts has been defined as "those facts which
the expected evidence will support." 10 As stated by private respondent, "[t]he
term does not refer to the details of probative matter or particulars of evidence by
which these material elements are to be established." It refers to "the facts which
the evidence on the trial will prove, and not the evidence which will be required
to prove the existence of those facts." And a motion for bill of particulars will not
be granted if the complaint, while not very definite, nonetheless already states a
sufficient cause of action. 11 A motion for bill of particulars may not call for
matters which should form part of the proof of the complaint upon trial. Such
information may be obtained by other means. 12
We sustain the view of respondent Court of Appeals that the Bill of Particulars
filed by private respondent is sufficient to state a cause of action, and to require
more details from private respondent would be to ask for information on
evidentiary matters. Indeed, petitioner has already been adequately apprised of
private respondent’s cause of action against her thus —
. . . . (she) was psychologically incapacitated to comply with the essential marital
obligations of their marriage in that she was unable to understand and accept the
demands made by his profession — that of a newly qualified Doctor of Medicine
— upon petitioner’s time and efforts so that she frequently complained of his lack
of attention to her even to her mother, whose intervention caused petitioner to
lose his job.
On the basis of the aforequoted allegations, it is evident that petitioner can already
prepare her responsive pleading or for trial. Private respondent has already
alleged that "she (petitioner) was unable to understand and accept the demands
made by his profession . . . upon his time and efforts . . . " Certainly, she can
respond to this. To demand for more details would indeed be asking for
information on evidentiary facts — facts necessary to prove essential or ultimate
facts. 13 For sure, the additional facts called for by petitioner regarding her
particular acts or omissions would be evidentiary, and to obtain evidentiary
matters is not the function of a motion for bill of particulars. 14
We distinguish the instant case from Tantuico, Jr. v. Republic 15 where we said
— that the giving of examples would limit the applicability of the provision under
Furthermore, the particulars prayed for such as names of persons, names of
corporations, dates, amounts involved, a specification of property for
identification purposes, the particular transactions involving withdrawals and
disbursements, and a statement of other material facts as would support the
conclusions and inferences in the complaint, are not evidentiary in nature. On the
contrary, those particulars are material facts that should be clearly and definitely
averred in the complaint in order that the defendant may, in fairness, be informed
of the claims made against him to the end that he may be prepared to meet the
issues at the trial.
The aforementioned pronouncement cannot apply to the instant case. That ruling
involves alleged "misappropriation and theft of public funds, plunder of the
nation’s wealth, extortion, blackmail, bribery, embezzlement, and other acts of
corruption, betrayal of public trust and brazen abuse of power." The respondents
therein pray for reconveyance, reversion, accounting, restitution and damages.
There, the alleged illicit acts should be fully documented. The instant case, on the
other hand, concerns marital relationship. It would be unreasonable, if not
unfeeling, to document each and every circumstance of marital disagreement.
True, the complaining spouse will have to prove his case, but that will not come
until trial begins.
Consequently, we have no other recourse but to order the immediate resumption
of the annulment proceeding which have already been delayed for more than two
years now, even before it could reach its trial stage. Whether petitioner is
psychologically incapacitated should be immediately determined. There is no
point in unreasonably delaying the resolution of the petition and prolonging the
agony of the wedded couple who after coming out from a storm still have the
right to a renewed blissful life either alone or in the company of each other.
A word on Art. 36 of the Family Code. 16 We do not see the need to define or
limit the scope of the provision. Not in this case, at least. For, we are not called
upon to do so, the actual controversy being the sufficiency of the bill of
particulars. To interpret the provision at this juncture would be to give an obiter
dictum which is ill-timed. Besides, it appears that petitioner in her memorandum
has demonstrated a good grasp of what Art. 36 actually covers. Suffice it to say
that Mme. Justice Sempio-Diy, formerly of the Court of Appeals and a member
of the Civil Code Revision Committee that drafted the Family code, explains —
The Committee did not give any examples of psychological incapacity for fear
the principle of ejusdem generis. Rather, the Committee would like the judge to
interpret the provision on a case-to-case basis, guided by experience, the findings
of experts and researchers in psychological disciplines, and by decisions of
church tribunals which, although not binding on the civil courts, may be given
persuasive effect since the provision was taken from Canon Law. 17
WHEREFORE, there being no reversible error, the instant petition is DENIED
and the questioned Resolution of respondent Court of Appeals dated 21 July 1992
is AFFIRMED.
SO ORDERED.
Note.—Abandonment implies a departure by one spouse with the avowed intent
never to return, followed by prolonged absence without just cause, and without
in the meantime providing in the least for one’s family although able to do so
(Partosa-Jo vs. Court of Appeals, 216 SCRA 692 [1992]).
GR No. L-38544. July 30, 1982
LUZ E. BALITAAN, petitioner, vs. COURT OF FIRST INSTANCE OF
BATANGAS, BRANCH II, and RITA DE LOS REYES, respondents.
Criminal Procedure; Every element of an offense must be alleged in the
information.—It is fundamental that every element of which the offense is
composed must be alleged in the complaint or information. What facts and
circumstances are necessary to be stated must be determined by reference to the
definitions and the essentials of the specific crimes.
Same; Same; Case at bar.—Thus, in the case at bar, inasmuch as the crime of
estafa through misappropriation or with grave abuse of confidence is charged, the
information must contain these elements: (a) that personal property is received in
trust, on commission, for administration or under any other circumstance
involving the duty to make delivery of or to return the same, even though the
obligation is guaranteed by a bond; (b) that there is conversion or diversion of
such property by the person who has so received it; (c) that such conversion,
diversion or denial is to the injury of another and (d) that there be demand for the
return of the property.
Same; Purpose of requirement.—The main purpose of requiring the various
elements of a crime to be set out in an information is to enable the accused to
suitably prepare his defense. He is presumed to have no independent knowledge
of the facts that constitute the offense.
Same; Evidence; It is often difficult to say what is a matter of evidence and what
facts form the elements of an offense.—However, it is often difficult to say what
is a matter of evidence, as distinguished from facts necessary to be stated in order
to render the information sufficiently certain to identify the offense. As a general
rule, matters of evidence, as distinguished from facts essential to the description
of the offense, need not be averred. For instance, it is not necessary to show on
the face of an information for forgery in what manner a person is to be defrauded,
as that is a matter of evidence of the trial.
Same; In alleging elements of an offense, reasonable certainty only is required.—
Moreover, reasonable certainty in the statement of the crime suffices. All that is
required is that the charge be set forth with such particularity as will reasonably
indicate the exact offense which the accused is alleged to have committed and
will enable him intelligently to prepare his defense, and if found guilty to plead
her conviction, in a subsequent prosecution for the same offense.
Same; Where information for estafa alleged that accused misappropriated
P127.58, introduction of evidence that accused received three checks amounting
to P1,632.97 which was not alleged in the information, is not improper.—
Applying these principles, We rule that the existence of the three checks need not
be alleged in the Information. This is an evidentiary matter which is not required
to be alleged therein. Further, that these checks, as testified by petitioner
amounted to P1,632.97 did not vary the allegation in the Information that
respondent Rita de los Reyes misappropriated the amount of P127.58. Proof of
the checks and their total amount was material evidence of the fact that
respondent misappropriated the amount of P127.58 which was but a part of the
total sum of the checks.
Same; Criminal Law; In estafa under Article 315, par. 1(b) which is committed
with abuse of confidence previous demand is necessary; whereas, in par. 2(a) no
demand is necessary.—It is true that estafa under paragraph 1(b) is essentially a
different offense from estafa under paragraph 2(a) of the same article because the
elements of these two offenses are not the same. In estafa under paragraph 1(b),
which is committed with grave abuse of confidence, it must be shown that the
offender received money or other personalty in trust or on commission or for
administration, or under any other obligation involving the duty to make delivery
of or to return the same but misappropriated it to the prejudice of another. It is
also necessary that previous demand be made on the offender. To sustain a
conviction for estafa under paragraph 2(a), on the other hand, deceit or false
representation to defraud and the damage caused thereby must be proved. And
no demand is necessary.
Same; Evidence; In a prosecution for estafa under par. 1(b) of Article 315,
Revised Penal Code, proof of deceit is allowed and even if deceit is present, abuse
of confidence will characterize the estafa.—This does not mean, however, that
presentation of proof of deceit in a prosecution for estafa under paragraph 1(b) is
not allowed. Abuse of confidence and deceit may co-exist. Even if deceit may be
present, the abuse of confidence will characterize the estafa as the deceit will be
merely incidental or as the Supreme Court of Spain held, is absorbed by abuse of
confidence.
Same; Same; Estafa by abuse of confidence is committed even if deceit was
employed to evidence the creation of the relationship of trust and confidence.—
It has also been held that as long as there is a relation of trust and confidence
between the complainant and the accused and even though such relationship has
been induced by the accused thru false representations and pretense and which is
continued by active deceit without truthfully disclosing the facts to the
complainant, the estafa committed is by abuse of confidence although deceit co-
exists in its commission.
Same; Same; Same; Case at Bar.—Thus, the questioned testimony eliciting the
fact that accused respondent falsely represented to the complainant-petitioner that
the amount of P127.58 out of the total of P1,632.97 belonged to Cesar Dalangin
may not be said to be at variance with the allegations of the Information. The
presence of deceit would not change the whole theory of the prosecution that
estafa with abuse of confidence was committed. Besides, in estafa by means of
deceit, it is essential that the false statement or fraudulent representation
constitutes the very cause or the only motive which induces the complainant to
part with the thing. The municipal court property denied, therefore, the motion to
strike out the testimonies anent use of false representations. Balitaan vs. Court of
First Instance of Batangas, 115 SCRA 729, No. L-38544 July 30, 1982
This is a petition for review on certiorari of the decision of the Court of First
Instance of Batangas in Civil Case No. 81 entitled "Rita de los Reyes vs. Luz E.
Balitaan, et al." which annulled the orders of the Judge of the Municipal Court
of Bauan, Batangas and ordered the questioned testimonies to be striken out from
the record on the ground that they are at variance with the allegations of the
Information.
The chronological sequence of the events leading to the filing of the instant
petition is as follows:
On April 11, 1973, Special Counsel Arcadio M. Aguila filed with the Municipal
Court of Bauan, Batangas, an Information charging respondent Rita de los Reyes
of the crime of estafa. The Information reads as follows:
That in, about and during the period comprised between April 27, 1982 to June,
1972, inclusive, in the Municipality of Bauan, Batangas, Philippines, and within
the jurisdiction of this Honorable Court, the abovenamed accused, being then an
employee of one Luz E. Balitaan, owner of a baby dresses mending shop in Barrio
Aplaya of the said municipality and having collected and received from Uniware,
Inc., a business establishment in Makati, Rizal, to which finished baby dresses
are turned over after they have been mended and made, the sum of P127.58 in
payment of work done on baby dresses by said Luz E. Balitaan, and under the
express obligation on the part of the accused to immediately account for and
deliver the said amount of P127.58 to said Luz E. Balitaan, with unfaithfulness
and grave abuse of confidence and in spite of repeated demands made to the said
accused to turn over the said amount of P127.58, did then and there, wilfully,
unlawfully and feloniously misappropriate, misapply and convert the sum of
P127.58 to her (accused) own use and benefit, to the damage and prejudice of the
said Luz E. Balitaan in the aforementioned amount of P127.58.
Contrary to law. 1
At the initial hearing on September 18, 1973, complaining witness Luz E.
Balitaan, herein petitioner, was called as the prosecution's first witness. She
testified that she was the proprietress of a baby dress mending shop, that her
business was engaged in the sewing of baby dresses with the accused, Rita de los
Reyes, herein respondent, as the one in charge of the management of her business,
including the procurement of unsewed baby dresses from, and the delivery of
finished dresses to Unaware, Inc. She further testified as follows:
Q. Sometime in April 27,1972, do you know if the accused in this case, Rita de
los Reyes had made deliveries of baby dresses to Uniware, Incorporated?
A. Yes, sir.
Q. Do you have a receipt or cash voucher to show that those baby dresses were
delivered?
A. Yes, sir.
Q. I am going to show you a cash voucher dated April 27, 1972, which appears
to be the original carbon copy and which for purposes of Identification we ask
that the same be marked as Exhibit "A" for the prosecution.
COURT:
Mark it.
Atty. Enriquez:
Q. Is this the cash voucher of baby dresses delivered by Rita de los Reyes?
xxx xxx xxx
A. Yes, sir.
Q. Do you know this or what is this about?
A. This is receipt of payment made to us for the dresses we have made.
xxx xxx xxx
Q. It appears in this voucher, Exhibit "A", that the total payment made and
suppose to be received was in the amount of P1,632.27 in words and figures, how
was the payment made?
A. By checks sir.
Q. How many checks?
A. Three (3) checks, sir.
Q. Would you know from this Exhibit "A" the number of checks and the
corresponding amount appearing in the checks in payment of this P1,632.97?
(Witness again shown Exhibit "A").
A. Yes sir.
Q. Where, will you point to this Exhibit "A"?
A. Witnesses pointing to #17000703 and opposite it the amount of P500.00; she
was also pointing to #17000702 and opposite it P500.00; and also #17000704,
opposite it is the amount of P632.97.
Q. Now, who received the checks in payment of the dresses made in this cash
voucher?
A. Rita de los Reyes, sir. (herein respondent)
Q. From where?
A. In Makati.
Q. This cash voucher dated April 27, 1972, Exhibit "A", who received this from
Unaware, Incorporated, if it was received? 2
At this juncture, counsel for the accused Rita de los Reyes objected to the
testimony of complaining witness, Luz E. Balitaan and presented two motions.
The transcript of stenographic notes shows what these motions are:
ATTY. CONTRERAS:
If your Honor please, the defense is respectfully presenting to this Honorable
Court two (2) motions: first, to strike out all the testimonies of the witness as far
as Exhibit "A" is concerned on the ground that said testimonies are at variance
with the allegations in the information, there is no allegation in the information
whatsoever regarding these checks and this cash voucher, your Honor, and we
are filing a motion in the nature of an objection to any other question or questions
regarding these checks that were allegedly received by the herein accused from
the Unaware Incorporated because there is no allegation in the information. If the
information will only be read carefully, the sum of P127.58 in payment of work
done in baby dresses was received by the accused, so that all these evidence,
having received checks in so much amount ... It is respectfully submitted by the
defense that no evidence could be admissible under the rules.
ATTY. ENRIQUEZ:
There was already testimony of this witness that there is certain amount received
and that portion thereof was not delivered to the offended party. What we are
proving here are preliminary evidence going directly to the present issue of
P127.58 was received, as the Court would readily see in this cash voucher that
the amount subject matter of the information or complaint is indicated in this cash
voucher. This exhibit and evidence is germane and I want to show that there is
misappropriation of the amount from the total amount of P1,632.97.
ATTY. CONTRERAS:
The information alleges that the accused received the sum of P127.58, the
information does not cite that this amount was only a part of the cash received.
All these evidence will be immaterial, there is no allegation in the information by
which this information would be tending to sustain. I submit, your Honor.
ATTY. ENRIQUEZ:
We submit, your Honor.
COURT:
Objection overruled. 3
As clearly seen above, the objection was overruled. Luz E. Balitaan thereby
continued with her testimony and declared that accused Rita de los Reyes
delivered the said checks and voucher to her; that upon delivery, the said accused
represented to her that the baby dresses with style Nos. 648, 151, 161 and 203
were those of Cesar Dalangin whose payment in the amount of P127.58 was
included in the checks; that in view of this statement, said Luz E. Balitaan
instructed said accused to cash the checks in order to pay Cesar Dalangin; that
Rita de los Reyes returned the following day with the cash minus the amount of
P127.58. She further declared that two or three weeks afterwards, she noticed that
there were too many baby dresses that were lost prompting her to verify the
receipts of payment, one of which is the cash voucher, Exhibit "A". In the course
of her investigation, she went to see Cesar Dalangin who declared that Style Nos.
648, 151, 161 and 203 were not his and denied having received any amount from
Rita de los Reyes or of even knowing the latter; that when she confronted the
accused and asked why she deceived her, said accused could not talk, turned pale
but later admitted having kept the amount.
At the close of the direct examination of Luz E. Balitaan, counsel for the accused
moved to strike out the foregoing testimonies but respondent court also denied
the motion.
Consequently, accused Rita de los Reyes instituted in the Court of First Instance
of Batangas, Eighth Judicial District, Branch II, Civil Case No. 81, against
petitioner-appellant, Luz E. Balitaan, and the Honorable Guillermo B. Magnaye,
in his capacity as Judge of the Municipal Court of Bauan, Batangas, a petition for
certiorari, with preliminary injunction, to annul the aforementioned orders of the
said Municipal Court of Bauan, Batangas, overruling the objections of accused
Rita de los Reyes to the testimony of complaining witness on the grounds of
immateriality and variance with the Information as well as denying the motion to
strike out the same.
In a decision dated March 13, 1973, the Court of First Instance of Batangas
sustained respondent's stand and hence, granted the petition for writ of certiorari,
the dispositive portion of the same states as follows:
WHEREFORE, the petition is granted and the orders of respondent Judge
overruling petitioner's objection, as well as denying her motion to strike out the
testimonies of Luz E. Balitaan abovequoted and appearing on pages 23-32 of the
transcript of stenographic notes marked Exhibit "X", are hereby annulled. Let
said testimonies be stricken out from the record of the hearing of September 18,
1973, of Criminal Case No. 2172 of the Municipal Court of Bauan, Batangas
entitled People vs. Rita de los Reyes. Costs against private respondent Luz E.
Balitaan.
SO ORDERED. 4
From said decision, Luz E. Balitaan filed this instant petition for review with the
following assigned errors:
I. The lower court erred in granting the writ of certiorari to annul the orders of
the Municipal Court of Bauan, Batangas in Criminal Case No. 2172.
II. The lower court erred in holding that there is a variance between the allegation
in the information for estafa in Criminal Case No. 2172 and the proof established
by the petitioner's testimony thereat.
III. The lower court, in resolving the present case, erred when it decided the
merits of Criminal Case No. 2172 instead of limiting itself to a determination of
whether the writ of certiorari should issue or not. 5
In resolving the issue of variance between allegation and proof, the Court of First
Instance ruled:
Private respondent contends that Luz E. Balitaan's testimonies about the delivery
of the checks to petitioner and their having been cashed by her is merely to show
the source of the P127.58 misappropriated. True but when she testified that
petitioner deducted the said amount from the proceeds falsely representing that
the same belonged to Cesar Dalangin, and should be delivered to him, when in
fact she did not deliver but misappropriated the same to her own use and benefit,
the testimony became objectionable. It became objectionable because it tended
to prove estafa committed not in the manner as alleged in the information but in
a manner not alleged therein. In overruling petitioner's objection, respondent
Judge acted in excess of his jurisdiction because the Rules expressly provides
(sic) that evidence should correspond with the allegations of the complaint or
information. 6
Petitioner vehemently objected to the resolution of the issue in that manner,
contending that what counsel for Rita de los Reyes presented before the
Municipal Court of Bauan were only these two motions; viz: (1) to strike out
complaining witness' testimony concerning the cash voucher on the ground of
immateriality and variance with the Information which did not allege the
existence of said voucher and three checks; and (2) a motion objecting to any and
all other questions concerning the checks in the total amount of P1,632.97 on the
ground of variance inasmuch as the Information recited that the accused received
and misappropriated the amount of P127.58 only.
In other words, it is petitioner's stand that since these were the only motions that
were denied by the Municipal Court, it is their denial that is accordingly
questioned by way of certiorari before the Court of First Instance and that when
the latter court went beyond the merits of the motions in question, it acted
improperly for in so doing, it did not give the adverse party a chance to argue the
point and receive evidence on the question.
We disagree. The facts of the case, culled from petitioner-appellant's brief itself,
show that aside from the two motions above-mentioned, private respondent
moved to strike out complaining witness' testimony "relating to the receipt
(voucher) of the three checks" and cashing thereof by the accused Rita de los
Reyes, which, according to counsel, is at variance with the allegation in the
Information, it appearing that there is no allegation or averment therein that "the
accused received the checks," that those checks "were cashed by the
accused", and that the accused got a portion of the amount or cash "for the
purpose of having it delivered to Cesar Dalangin." 7
The issue of variance between the mode or from of estafa alleged in the
Information and that sought to be proved by the testimony may be inferred from
the foregoing motion to strike out. Contrary also to petitioner's contention in her
brief before this Court that this issue was not raised in Civil Case No. 81 in the
Court of First Instance of Batangas, private respondent aptly quoted her
arguments in her memorandum dated February 3, 1974 before said court showing
that the issue was in fact raised, to wit:
... the information charges the accused with Estafa under Article 315, 4th par.,
No. 1, letter (b) of the Revised Penal Code, the allegation being that the accused,
with unfaithfulness and abuse of confidence, misappropriated and converted the
amount of P127.58 which she received in trust for a certain specific purpose. But,
the evidence consisting of the testimony of the complainant, as already adverted
to in the foregoing discussion, tends to prove another kind of estafa which may
fan under Article 315, 4th par., No. 2, letter (a) of the Revised Penal Code
wherein the punishable act consists of using false pretenses or fraudulent act. This
is so because, according to the complainant's testimony, the accused made false
pretense or misrepresentation that the amount of P127.58 was due in favor of
Cesar Dalangin. The essence therefore of the criminal act shown by the
testimonial evidence is the element of deceit, and this is an entirely different kind
of estafa (from that) charged against the accused in the information under which
she was arraigned and pleaded not guilty. 8
After threshing out this preliminary matter of whether the issue at hand was raised
or not, We now proceed with the resolution of the said issue.
It is fundamental that every element of which the offense is composed must be
alleged in the complaint or information. What facts and circumstances are
necessary to be stated must be determined by reference to the definitions and the
essentials of the specific crimes. 9
Thus, in the case at bar, inasmuch as the crime of estafa through misappropriation
or with grave abuse of confidence is charged, the information must contain these
elements: (a) that personal property is received in trust, on commission, for
administration or under any other circumstance involving the duty to make
delivery of or to return the same, even though the obligation is guaranteed by a
bond; (b) that there is conversion or diversion of such property by the person who
has so received it; (c) that such conversion, diversion or denial is to the injury of
another and (d) that there be demand for the return of the property. 10
The main purpose of requiring the various elements of a crime to be set out in an
information is to enable the accused to suitably prepare his defense. He is
presumed to have no independent knowledge of the facts that constitute the
offense. 11
However, it is often difficult to say what is a matter of evidence, as distinguished
from facts necessary to be stated in order to render the information sufficiently
certain to Identify the offense. As a general rule, matters of evidence, as
distinguished from facts essential to the description of the offense, need not be
averred. 12 For instance, it is not necessary to show on the face of an information
for forgery in what manner a person is to be defrauded, as that is a matter of
evidence at the trial. 13
Moreover, reasonable certainty in the statement of the crime suffices. All that is
required is that the charge be set forth with such particularity as will reasonably
indicate the exact offense which the accused is alleged to have committed and
will enable him intelligently to prepare his defense, and if found guilty to plead
her conviction, in a subsequent prosecution for the same offense. 14
Applying these principles, We rule that the existence of the three checks need not
be alleged in the Information. This is an evidentiary matter which is not required
to be alleged therein. Further, that these checks, as testified by petitioner
amounted to P1,632.97 did not vary the allegation in the Information that
respondent Rita de los Reyes misappropriated the amount of P127.58. Proof of
the checks and their total amount was material evidence of the fact that
respondent misappropriated the amount of P127.58 which was but a part of the
total sum of the checks.
Inasmuch as the Information herein sufficiently charges the crime of estafa under
paragraph 1(b) of Article 315, Revised Penal Code, We shall now determine
whether the testimonies of complaining witness prove the same or tend to prove
instead estafa under paragraph 2(a) of the same article.
It is true that estafa under paragraph 1(b) is essentially a different offense from
estafa under paragraph 2(a) of the same article because the elements of these two
offenses are not the same. In estafa under paragraph 1(b), which is committed
with grave abuse of confidence, it must be shown that the offender received
money or other personalty in trust or on commission or for administration, or
under any other obligation involving the duty to make delivery of or to return the
same but misappropriated it to the prejudice of another. It is also necessary that
previous demand be made on the offender. To sustain a conviction for estafa
under paragraph 2(a), on the other hand, deceit or false representation to defraud
and the damage caused thereby must be proved. And no demand is necessary. 15
WHEREFORE, the decision of the Court of First Instance of Batangas, Branch
II in Civil Case No. 81, ordering the questioned testimonies to be stricken from
the record is hereby REVERSED and SET ASIDE.
SO ORDERED.
Notes.—The prosecution of criminal actions is always under the direction and
control of the Fiscal. (People vs. Valdemoro, 102 SCRA 171.)
An amended information is valid where it has no substantial difference with the
original information and defendant apprised of the contents of the amended
information. (People vs. Yutila, 102 SCRA 264.)
Fiscals have the primary responsibility to frame informations with due care so as
to avoid controversy as to the definite nature of the offense charged therein.
(People vs. Pardilla, 92 SCRA 591.)

This does not mean, however, that presentation of proof of deceit in a prosecution To quash an information is not a ministerial function, hence, not a basis for filing
for estafa under paragraph 1(b) is not allowed. Abuse of confidence and deceit of mandamus. (People vs. Ramos, 83 SCRA 1.)
may co-exist. Even if deceit may be present, the abuse of confidence win
An information is not defective where it clearly specified the stolen property.
characterize the estafa as the deceit will be merely incidental or as the Supreme
(Izon vs. People, 107 SCRA 118.)
Court of Spain held, is absorbed by abuse of confidence. 16
Not informing the accused of the technical name of the crime he stands charged
It has also been held that as long as there is a relation of trust and confidence
is not violative of his substantial rights. (Izon vs. People, 107 SCRA 118.)
between the complainant and the accused and even though such relationship has
Balitaan vs. Court of First Instance of Batangas, 115 SCRA 729, No. L-38544
been induced by the accused thru false representations and pretense and which is
July 30, 1982
continued by active deceit without truthfully disclosing the facts to the
complainant, the estafa committed is by abuse of confidence although deceit co-
exists in its commission. 17

Thus, the questioned testimony eliciting the fact that accused respondent falsely
represented to the complainant-petitioner that the amount of P127.58 out of the
total of P1,632.97 belonged to Cesar Dalangin may not be said to be at variance
with the allegations of the Information. The presence of deceit would not change
the whole theory of the prosecution that estafa with abuse of confidence was
committed. Besides, in estafa by means of deceit, it is essential that the false
statement or fraudulent representation constitutes the very cause or the only
motive which induces the complainant to part with the thing. 18 The municipal
court properly denied, therefore, the motion to strike out the testimonies anent
use of false representations.
G.R. No. 111538. February 26, 1997
PARAÑAQUE KINGS ENTERPRISES, INCORPORATED, petitioner, vs.
COURT OF APPEALS, CATALINA L. SANTOS, represented by her
attorney-in-fact, LUZ B. PROTACIO, and DAVID A. RAYMUNDO,
respondents.
Actions; Pleadings and Practice; Procedural Rules; When noncompliance with
the Rules was not intended for delay or did not result in prejudice to the adverse
party, dismissal of appeal on mere technicalities—in cases where appeal is a
matter of right—may be stayed, in the exercise of the court’s equity
jurisdiction.—We first dispose of the procedural issue raised by respondents,
particularly petitioner’s failure to file twelve (12) copies of its brief. We have
ruled that when non-compliance with the Rules was not intended for delay or did
not result in prejudice to the adverse party, dismissal of appeal on mere
technicalities—in cases where appeal is a matter of right—may be stayed, in the
exercise of the court’s equity jurisdiction. It does not appear that respondents
were unduly prejudiced by petitioner’s nonfeasance. Neither has it been shown
that such failure was intentional.
Same; Words and Phrases; Questions of Law and Questions of Fact; There is a
question of law in a given case when the doubt or difference arises as to what the
law is on a certain state of facts, and there is a question of fact when the doubt or
difference arises as to the truth or the falsehood of alleged facts.—We do not
agree with respondents’ contention that the issue involved is purely factual. The
principal legal question, as stated earlier, is whether the complaint filed by herein
petitioner in the lower court states a valid cause of action. Since such question
assumes the facts alleged in the complaint as true, it follows that the
determination thereof is one of law, and not of facts. There is a question of law
in a given case when the doubt or difference arises as to what the law is on a
certain state of facts, and there is a question of fact when the doubt or difference
arises as to the truth or the falsehood of alleged facts.
Same; Cause of Action, Elements of.—A cause of action exists if the following
elements are present: (1) a right in favor of the plaintiff by whatever means and
under whatever law it arises or is created; (2) an obligation on the part of the
named defendant to respect or not to violate such right; and (3) an act or omission
on the part of such defendant violative of the right of plaintiff or constituting a
breach of the obligation of defendant to the plaintiff for which the latter may
maintain an action for recovery of damages.
Same; Same; To sustain a motion to dismiss for lack of cause of action, the
complaint must show that the claim does not exist, rather than that a claim has
been defectively stated, or is ambiguous, indefinite or uncertain.—In determining
whether allegations of a complaint are sufficient to support a cause of action, it
must be borne in mind that the complaint does not have to establish or allege facts
proving the existence of a cause of action at the outset; this will have to be done
at the trial on the merits of the case. To sustain a motion to dismiss for lack of
cause of action, the complaint must show that the claim for relief does not exist,
rather than that a claim has been defectively stated, or is ambiguous, indefinite or
uncertain.
Actions; Pleadings and Practice; Motions to Dismiss; While in the resolution of
a motion to dismiss, the truth of the facts alleged in the complaint are theoretically
admitted, such admission is merely hypothetical and only for the purpose of
resolving the motion—in case of denial, the movant is not deprived of the right
to submit its own case and to submit evidence to rebut the allegations in the
complaint, and neither will the grant of the motion by a trial court and the ultimate
reversal thereof by an appellate court have the effect of stifling such right.—
While the lower courts erred in dismissing the complaint, private respondents,
however, cannot be denied their day in court. While, in the resolution of a motion
to dismiss, the truth of the facts alleged in the complaint are theoretically
admitted, such admission is merely hypothetical and only for the purpose of
resolving the motion. In case of denial, the movant is not to be deprived of the
right to submit its own case and to submit evidence to rebut the allegations in the
complaint. Neither will the grant of the motion by a trial court and the ultimate
reversal thereof by an appellate court have the effect of stifling such right. So too,
the trial court should be given the opportunity to evaluate the evidence, apply the
law and decree the proper remedy. Hence, we remand the instant case to the trial
court to allow private respondents to have their day in court. Parañaque Kings
Enterprises, Inc. vs. Court of Appeals, 268 SCRA 727, G.R. No. 111538 February
26, 1997
Do allegations in a complaint showing violation of a contractual right of "first
option or priority to buy the properties subject of the lease" constitute a valid
cause of action? Is the grantee of such right entitled to be offered the same terms
and conditions as those given to a third party who eventually bought such
properties? In short, is such right of first refusal enforceable by an action for
specific performance?
These questions are answered in the affirmative by this Court in resolving this
petition for review under Rule 45 of the Rules of Court challenging the
Decision 1 of the Court of Appeals 2 promulgated on March 29, 1993, in CA-G.R.
CV No. 34987 entitled "Parañaque Kings Enterprises, Inc. vs. Catalina L. Santos,
et al.," which affirmed the order 3 of September 2, 1991, of the Regional Trial
Court of Makati, Branch 57, 4 dismissing Civil Case No. 91-786 for lack of a
valid cause of action.
Facts of the Case
On March 19, 1991, herein petitioner filed before the Regional Trial Court of
Makati a complaint, 5 which is reproduced in full below:
Plaintiff, by counsel, respectfully states that:
1. Plaintiff is a private corporation organized and existing under and by virtue of
the laws of the Philippines, with principal place of business of (sic) Dr. A. Santos
Avenue, Parañaque, Metro Manila, while defendant Catalina L. Santos, is of legal
age, widow, with residence and postal address at 444 Plato Street, Ct., Stockton,
California, USA, represented in this action by her attorney-in-fact, Luz B.
Protacio, with residence and postal address at No, 12, San Antonio Street,
Magallanes Village, Makati, Metro Manila, by virtue of a general power of
attorney. Defendant David A. Raymundo, is of legal age, single, with residence
and postal address at 1918 Kamias Street, Damariñas Village, Makati, Metro
Manila, where they (sic) may be served with summons and other court processes.
Xerox copy of the general power of attorney is hereto attached as Annex "A".
2. Defendant Catalina L. Santos is the owner of eight (8) parcels of land located
at (sic) Parañaque, Metro Manila with transfer certificate of title nos. S-19637,
S-19638 and S-19643 to S-19648. Xerox copies of the said title (sic) are hereto
attached as Annexes "B" to "I", respectively.
3. On November 28, 1977, a certain Frederick Chua leased the above-described
property from defendant Catalina L. Santos, the said lease was registered in the
Register of Deeds. Xerox copy of the lease is hereto attached as Annex "J".
4. On February 12, 1979, Frederick Chua assigned all his rights and interest and
participation in the leased property to Lee Ching Bing, by virtue of a deed of
assignment and with the conformity of defendant Santos, the said assignment was
also registered. Xerox copy of the deed of assignment is hereto attached as Annex
"K".
5. On August 6, 1979, Lee Ching Bing also assigned all his rights and interest in
the leased property to Parañaque Kings Enterprises, Incorporated by virtue of a
deed of assignment and with the conformity of defendant Santos, the same was
duly registered, Xerox copy of the deed of assignment is hereto attached as Annex
"L".
6. Paragraph 9 of the assigned leased (sic) contract provides among others that:
"9. That in case the properties subject of the lease agreement are sold or
encumbered, Lessors shall impose as a condition that the buyer or mortgagee
thereof shall recognize and be bound by all the terms and conditions of this lease
agreement and shall respect this Contract of Lease as if they are the LESSORS
thereof and in case of sale, LESSEE shall have the first option or priority to buy
the properties subject of the lease;"
7. On September 21, 1988, defendant Santos sold the eight parcels of land subject
of the lease to defendant David Raymundo for a consideration of FIVE MILLION
(P5,000,000.00) PESOS. The said sale was in contravention of the contract of
lease, for the first option or priority to buy was not offered by defendant Santos
to the plaintiff. Xerox copy of the deed of sale is hereto attached as Annex "M".
8. On March 5, 1989, defendant Santos wrote a letter to the plaintiff informing
the same of the sale of the properties to defendant Raymundo, the said letter was
personally handed by the attorney-in-fact of defendant Santos, Xerox copy of the
letter is hereto attached as Annex "N".
9. Upon learning of this fact plaintiff's representative wrote a letter to defendant
Santos, requesting her to rectify the error and consequently realizing the error,
she had it reconveyed to her for the same consideration of FIVE MILLION
(P5,000,000.00) PESOS. Xerox copies of the letter and the deed of reconveyance
are hereto attached as Annexes "O" and "P".
10. Subsequently the property was offered for sale to plaintiff by the defendant
for the sum of FIFTEEN MILLION (P15,000,000.00) PESOS. Plaintiff was
given ten (10) days to make good of the offer, but therefore (sic) the said period
expired another letter came from the counsel of defendant Santos, containing the
same tenor of (sic) the former letter. Xerox copies of the letters are hereto
attached as Annexes "Q" and "R".
11. On May 8, 1989, before the period given in the letter offering the properties
for sale expired, plaintiff's counsel wrote counsel of defendant Santos offering to
buy the properties for FIVE MILLION (P5,000,000.00) PESOS. Xerox copy of
the letter is hereto attached as Annex "S".
12. On May 15, 1989, before they replied to the offer to purchase, another deed
of sale was executed by defendant Santos (in favor of) defendant Raymundo for
a consideration of NINE MILLION (P9,000,000.00) PESOS. Xerox copy of the
second deed of sale is hereto attached as Annex "T".
13. Defendant Santos violated again paragraph 9 of the contract of lease by
executing a second deed of sale to defendant Raymundo.
14. It was only on May 17, 1989, that defendant Santos replied to the letter of the
plaintiff's offer to buy or two days after she sold her properties. In her reply she
stated among others that the period has lapsed and the plaintiff is not a privy (sic)
to the contract. Xerox copy of the letter is hereto attached as Annex "U".
15. On June 28, 1989, counsel for plaintiff informed counsel of defendant Santos
of the fact that plaintiff is the assignee of all rights and interest of the former
lessor. Xerox copy of the letter is hereto attached as Annex "V".
16. On July 6, 1989, counsel for defendant Santos informed the plaintiff that the
new owner is defendant Raymundo. Xerox copy of the letter is hereto attached
as Annex "W".
17. From the preceding facts it is clear that the sale was simulated and that there
was a collusion between the defendants in the sales of the leased properties, on
the ground that when plaintiff wrote a letter to defendant Santos to rectify the
error, she immediately have (sic) the property reconveyed it (sic) to her in a
matter of twelve (12) days.
18. Defendants have the same counsel who represented both of them in their
exchange of communication with plaintiff's counsel, a fact that led to the
conclusion that a collusion exist (sic) between the defendants.
19. When the property was still registered in the name of defendant Santos, her
collector of the rental of the leased properties was her brother-in-law David
Santos and when it was transferred to defendant Raymundo the collector was still
David Santos up to the month of June, 1990. Xerox copies of cash vouchers are
hereto attached as Annexes "X" to "HH", respectively.
20. The purpose of this unholy alliance between defendants Santos and
Raymundo is to mislead the plaintiff and make it appear that the price of the
leased property is much higher than its actual value of FIVE MILLION
(P5,000,000.00) PESOS, so that plaintiff would purchase the properties at a
higher price.
21. Plaintiff has made considerable investments in the said leased property by
erecting a two (2) storey, six (6) doors commercial building amounting to THREE
MILLION (P3,000,000.00) PESOS. This considerable improvement was made
on the belief that eventually the said premises shall be sold to the plaintiff.
22. As a consequence of this unlawful act of the defendants, plaintiff will incurr
(sic) total loss of THREE MILLION (P3,000,000.00) PESOS as the actual cost
of the building and as such defendants should be charged of the same amount for
actual damages.
23. As a consequence of the collusion, evil design and illegal acts of the
defendants, plaintiff in the process suffered mental anguish, sleepless nights,
bismirched (sic) reputation which entitles plaintiff to moral damages in the
amount of FIVE MILLION (P5,000,000.00) PESOS.
24. The defendants acted in a wanton, fraudulent, reckless, oppressive or
malevolent manner and as a deterrent to the commission of similar acts, they
should be made to answer for exemplary damages, the amount left to the
discretion of the Court.
25. Plaintiff demanded from the defendants to rectify their unlawful acts that they
committed, but defendants refused and failed to comply with plaintiffs just and
valid and (sic) demands. Xerox copies of the demand letters are hereto attached
as Annexes "KK" to "LL", respectively.
26. Despite repeated demands, defendants failed and refused without justifiable
cause to satisfy plaintiff's claim, and was constrained to engaged (sic) the services
of undersigned counsel to institute this action at a contract fee of P200,000.00, as
and for attorney's fees, exclusive of cost and expenses of litigation.
PRAYER
WHEREFORE, it is respectfully prayed, that judgment be rendered in favor of
the plaintiff and against defendants and ordering that:
a. The Deed of Sale between defendants dated May 15, 1989, be annulled and the
leased properties be sold to the plaintiff in the amount of P5,000,000.00;
b. Dependants (sic) pay plaintiff the sum of P3,000,000.00 as actual damages;
c. Defendants pay the sum of P5,000,000.00 as moral damages;
d. Defendants pay exemplary damages left to the discretion of the Court;
e. Defendants pay the sum of not less than P200,000.00 as attorney's fees.
Plaintiff further prays for other just and equitable reliefs plus cost of suit.
Instead of filing their respective answers, respondents filed motions to dismiss
anchored on the grounds of lack of cause of action, estoppel and laches.
On September 2, 1991, the trial court issued the order dismissing the complaint
for lack of a valid cause of action. It ratiocinated thus:
Upon the very face of the plaintiff's Complaint itself, it therefore indubitably
appears that the defendant Santos had verily complied with paragraph 9 of the
Lease Agreement by twice offering the properties for sale to the plaintiff for ~1
5 M. The said offers, however, were plainly rejected by the plaintiff which
scorned the said offer as "RIDICULOUS". There was therefore a definite refusal
on the part of the plaintiff to accept the offer of defendant Santos. For in acquiring
the said properties back to her name, and in so making the offers to sell both by
herself (attorney-in-fact) and through her counsel, defendant Santos was indeed
conscientiously complying with her obligation under paragraph 9 of the Lease
Agreement. . . . .
xxx xxx xxx
This is indeed one instance where a Complaint, after barely commencing to create
a cause of action, neutralized itself by its subsequent averments which erased or
extinguished its earlier allegations of an impending wrong. Consequently, absent
any actionable wrong in the very face of the Complaint itself, the plaintiffs
subsequent protestations of collusion is bereft or devoid of any meaning or
purpose. . . . .
The inescapable result of the foregoing considerations point to no other
conclusion than that the Complaint actually does not contain any valid cause of
action and should therefore be as it is hereby ordered DISMISSED. The Court
finds no further need to consider the other grounds of estoppel and laches
inasmuch as this resolution is sufficient to dispose the matter. 6
Petitioners appealed to the Court of Appeals which affirmed in toto the ruling of
the trial court, and further reasoned that:
. . . . Appellant's protestations that the P15 million price quoted by appellee Santos
was reduced to P9 million when she later resold the leased properties to
Raymundo has no valid legal moorings because appellant, as a prospective buyer,
cannot dictate its own price and forcibly ram it against appellee Santos, as owner,
to buy off her leased properties considering the total absence of any stipulation
or agreement as to the price or as to how the price should be computed under
paragraph 9 of the lease contract, . . . . 7
Petitioner moved for reconsideration but was denied in an order dated August 20,
1993. 8
Hence this petition. Subsequently, petitioner filed an "Urgent Motion for the
Issuance of Restraining Order and/or Writ of Preliminary Injunction and to Hold
Respondent David A. Raymundo in Contempt of Court." 9 The motion sought to
enjoin respondent Raymundo and his counsel from pursuing the ejectment
complaint filed before the barangay captain of San Isidro, Parañaque, Metro
Manila; to direct the dismissal of said ejectment complaint or of any similar
action that may have been filed; and to require respondent Raymundo to explain
why he should not be held in contempt of court for forum-shopping. The
ejectment suit initiated by respondent Raymundo against petitioner arose from
the expiration of the lease contract covering the property subject of this case. The
ejectment suit was decided in favor of Raymundo, and the entry of final judgment
in respect thereof renders the said motion moot and academic.
Issue
The principal legal issue presented before us for resolution is whether the
aforequoted complaint alleging breach of the contractual right of "first option or
priority to buy" states a valid cause of action.
Petitioner contends that the trial court as well as the appellate tribunal erred in
dismissing the complaint because it in fact had not just one but at least three (3)
valid causes of action, to wit: (1) breach of contract, (2) its right of first refusal
founded in law, and (3) damages.
Respondents Santos and Raymundo, in their separate comments, aver that the
petition should be denied for not raising a question of law as the issue involved
is purely factual — whether respondent Santos complied with paragraph 9 of the
lease agreement — and for not having complied with Section 2, Rule 45 of the
Rules of Court, requiring the filing of twelve (12) copies of the petitioner's brief.
Both maintain that the complaint filed by petitioner before the Regional Trial
Court of Makati stated no valid cause of action and that petitioner failed to
substantiate its claim that the lower courts decided the same "in a way not in
accord with law and applicable decisions of the Supreme Court"; or that the Court
of Appeals has "sanctioned departure by a trial court from the accepted and usual
course of judicial proceedings" so as to merit the exercise by this Court of the
power of review under Rule 45 of the Rules of Court. Furthermore, they reiterate
estoppel and laches as grounds for dismissal, claiming that petitioner's payment
of rentals of the leased property to respondent Raymundo from June 15, 1989, to
June 30, 1990, was an acknowledgment of the latter's status as new owner-lessor
of said property, by virtue of which petitioner is deemed to have waived or
abandoned its first option to purchase.
Private respondents likewise contend that the deed of assignment of the lease
agreement did not include the assignment of the option to purchase. Respondent
Raymundo further avers that he was not privy to the contract of lease, being
neither the lessor nor lessee adverted to therein, hence he could not be held liable
for violation thereof.
The Court's Ruling
Preliminary Issue: Failure to File
Sufficient Copies of Brief
We first dispose of the procedural issue raised by respondents, particularly
petitioner's failure to file twelve (12) copies of its brief. We have ruled that when
non-compliance with the Rules was not intended for delay or did not result in
prejudice to the adverse party, dismissal of appeal on mere technicalities — in
cases where appeal is a matter of right — may be stayed, in the exercise of the
court's equity jurisdiction. 10 It does not appear that respondents were unduly
prejudiced by petitioner's nonfeasance. Neither has it been shown that such
failure was intentional.
Main Issue: Validity of Cause of Action
We do not agree with respondents' contention that the issue involved
is purely factual. The principal legal question, as stated earlier, is whether the
complaint filed by herein petitioner in the lower court states a valid cause of
action. Since such question assumes the facts alleged in the complaint as true, it
follows that the determination thereof is one of law, and not of facts. There is a
question of law in a given case when the doubt or difference arises as to what the
law is on a certain state of facts, and there is a question of fact when the doubt or
difference arises as to the truth or the falsehood of alleged facts. 11
At the outset, petitioner concedes that when the ground for a motion to dismiss is
lack of cause of action, such ground must appear on the face of the complaint;
that to determine the sufficiency of a cause of action, only the facts alleged in the
complaint and no others should be considered; and that the test of sufficiency of
the facts alleged in a petition or complaint to constitute a cause of action is
whether, admitting the facts alleged, the court could render a valid judgment upon
the same in accordance with the prayer of the petition or complaint.
A cause of action exists if the following elements are present: (1) a right in favor
of the plaintiff by whatever means and under whatever law it arises or is created;
(2) an obligation on the part of the named defendant to respect or not to violate
such right, and (3) an act or omission on the part of such defendant violative of
the right of plaintiff or constituting a breach of the obligation of defendant to the
plaintiff for which the latter may maintain an action for recovery of damages. 12
In determining whether allegations of a complaint are sufficient to support a
cause of action, it must be borne in mind that the complaint does not have to
establish or allege facts proving the existence of a cause of action at the outset;
this will have to be done at the trial on the merits of the case. To sustain a motion
to dismiss for lack of cause of action, the complaint must show that the claim for
relief does not exist, rather than that a claim has been defectively stated, or is
ambiguous, indefinite or uncertain. 13
Equally important, a defendant moving to dismiss a complaint on the ground of
lack of cause of action is regarded as having hypothetically admitted all the
averments thereof. 14
A careful examination of the complaint reveals that it sufficiently alleges an
actionable contractual breach on the part of private respondents. Under paragraph
9 of the contract of lease between respondent Santos and petitioner, the latter was
granted the "first option or priority" to purchase the leased properties in case
Santos decided to sell. If Santos never decided to sell at all, there can never be a
breach, much less an enforcement of such "right." But on September 21, 1988,
Santos sold said properties to Respondent Raymundo without first offering these
to petitioner. Santos indeed realized her error, since she repurchased the
properties after petitioner complained. Thereafter, she offered to sell the
properties to petitioner for P15 million, which petitioner, however, rejected
because of the "ridiculous" price. But Santos again appeared to have violated the
same provision of the lease contract when she finally resold the properties to
respondent Raymundo for only P9 million without first offering them to
petitioner at such price. Whether there was actual breach which entitled
petitioner to damages and/or other just or equitable relief, is a question which can
better be resolved after trial on the merits where each party can present evidence
to prove their respective allegations and defenses. 15
The trial and appellate courts based their decision to sustain respondents' motion
to dismiss on the allegations of Parañaque Kings Enterprises that Santos had
actually offered the subject properties for sale to it prior to the final sale in favor
of Raymundo, but that the offer was rejected. According to said courts, with such
offer, Santos had verily complied with her obligation to grant the right of first
refusal to petitioner.
We hold, however, that in order to have full compliance with the contractual right
granting petitioner the first option to purchase, the sale of the properties for the
amount of P9 million, the price for which they were finally sold to respondent
Raymundo, should have likewise been first offered to petitioner.
The Court has made an extensive and lengthy discourse on the concept of, and
obligations under, a right of first refusal in the case of Guzman, Bocaling &
Co. vs. Bonnevie. 16 In that case, under a contract of lease, the lessees (Raul and
Christopher Bonnevie) were given a "right of first priority" to purchase the leased
property in case the lessor (Reynoso) decided to sell. The selling price quoted to
the Bonnevies was 600,000.00 to be fully paid in cash, less a mortgage lien of
P100,000.00. On the other hand, the selling price offered by Reynoso to and
accepted by Guzman was only P400,000.00 of which P137,500.00 was to be paid
in cash while the balance was to be paid only when the property was cleared of
occupants. We held that even if the Bonnevies could not buy it at the price quoted
(P600,000.00), nonetheless, Reynoso could not sell it to another for a lower price
and under more favorable terms and conditions without first offering said
favorable terms and price to the Bonnevies as well. Only if the Bonnevies failed
to exercise their right of first priority could Reynoso thereafter lawfully sell the
subject property to others, and only under the same terms and conditions
previously offered to the Bonnevies.
Of course, under their contract, they specifically stipulated that the Bonnevies
could exercise the right of first priority, "all things and conditions being equal."
This Court interpreted this proviso to mean that there should be identity of terms
and conditions to be offered to the Bonnevies and all other prospective buyers,
with the Bonnevies to enjoy the right of first priority. We hold that the same rule
applies even without the same proviso if the right of first refusal (or the first
option to buy) is not to be rendered illusory.
From the foregoing, the basis of the right of first refusal* must be
the current offer to sell of the seller or offer to purchase of any prospective buyer.
Only after the optionee fails to exercise its right of first priority under the same
terms and within the period contemplated, could the owner validly offer to sell
the property to a third person, again, under the same terms as offered to the
optionee.
This principle was reiterated in the very recent case of Equatorial Realty
vs. Mayfair Theater, Inc. 17 which was decided en banc. This Court upheld the
right of first refusal of the lessee Mayfair, and rescinded the sale of the property
by the lessor Carmelo to Equatorial Realty "considering that Mayfair, which had
substantial interest over the subject property, was prejudiced by its sale to
Equatorial without Carmelo conferring to Mayfair every opportunity to
negotiate within the 30-day stipulated period" (emphasis supplied).
In that case, two contracts of lease between Carmelo and Mayfair provided "that
if the LESSOR should desire to sell the leased premises, the LESSEE shall be
given 30 days exclusive option to purchase the same." Carmelo initially offered
to sell the leased property to Mayfair for six to seven million pesos. Mayfair
indicated interest in purchasing the property though it invoked the 30-day period.
Nothing was heard thereafter from Carmelo. Four years later, the latter sold its
entire Recto Avenue property, including the leased premises, to Equatorial for
P11,300,000.00 without priorly informing Mayfair. The Court held that both
Carmelo and Equatorial acted in bad faith: Carmelo for knowingly violating the
right of first option of Mayfair, and Equatorial for purchasing the property despite
being aware of the contract stipulation. In addition to rescission of the contract
of sale, the Court ordered Carmelo to allow Mayfair to buy the subject property
at the same price of P11,300,000.00.
No cause of action
under P.D. 1517
Petitioner also invokes Presidential Decree No. 1517, or the Urban Land Reform
Law, as another source of its right of first refusal. It claims to be covered under
said law, being the "rightful occupant of the land and its structures" since it is the
lawful lessee thereof by reason of contract. Under the lease contract, petitioner
would have occupied the property for fourteen (14) years at the end of the
contractual period.
Without probing into whether petitioner is rightfully a beneficiary under said law,
suffice it to say that this Court has previously ruled that under
Section 6 18 of P.D. 1517, "the terms and conditions of the sale in the exercise of
the lessee's right of first refusal to purchase shall be determined by the Urban
Zone Expropriation and Land Management Committee. Hence, . . . . certain
prerequisites must be complied with by anyone who wishes to avail himself of
the benefits of the decree." 19 There being no allegation in its complaint that the
prerequisites were complied with, it is clear that the complaint did fail to state a
cause of action on this ground.
Deed of Assignment included
the option to purchase
Neither do we find merit in the contention of respondent Santos that the
assignment of the lease contract to petitioner did not include the option to
purchase. The provisions of the deeds of assignment with regard to matters
assigned were very clear. Under the first assignment between Frederick Chua as
assignor and Lee Ching Bing as assignee, it was expressly stated that:
. . . . the ASSIGNOR hereby CEDES, TRANSFERS and ASSIGNS to herein
ASSIGNEE, all his rights, interest and participation over said premises afore-
described, . . . . 20 (emphasis supplied)
And under the subsequent assignment executed between Lee Ching Bing as
assignor and the petitioner, represented by its Vice President Vicenta Lo Chiong,
as assignee, it was likewise expressly stipulated that;
. . . . the ASSIGNOR hereby sells, transfers and assigns all his rights, interest and
participation over said leased premises, . . . . 21 (emphasis supplied)
One of such rights included in the contract of lease and, therefore, in the
assignments of rights was the lessee's right of first option or priority to buy the
properties subject of the lease, as provided in paragraph 9 of the assigned lease
contract. The deed of assignment need not be very specific as to which rights and
obligations were passed on to the assignee. It is understood in the general
provision aforequoted that all specific rights and obligations contained in the
contract of lease are those referred to as being assigned. Needless to state,
respondent Santos gave her unqualified conformity to both assignments of rights.
Respondent Raymundo privy
to the Contract of Lease
With respect to the contention of respondent Raymundo that he is not privy to the
lease contract, not being the lessor nor the lessee referred to therein, he could thus
not have violated its provisions, but he is nevertheless a proper party. Clearly, he
stepped into the shoes of the owner-lessor of the land as, by virtue of his purchase,
he assumed all the obligations of the lessor under the lease contract. Moreover,
he received benefits in the form of rental payments. Furthermore, the complaint,
as well as the petition, prayed for the annulment of the sale of the properties to
him. Both pleadings also alleged collusion between him and respondent Santos
which defeated the exercise by petitioner of its right of first refusal.
In order then to accord complete relief to petitioner, respondent Raymundo was
a necessary, if not indispensable, party to the case. 22 A favorable judgment for
the petitioner will necessarily affect the rights of respondent Raymundo as the
buyer of the property over which petitioner would like to assert its right of first
option to buy.
Having come to the conclusion that the complaint states a valid cause of action
for breach of the right of first refusal and that the trial court should thus not have
dismissed the complaint, we find no more need to pass upon the question of
whether the complaint states a cause of action for damages or whether the
complaint is barred by estoppel or laches. As these matters require presentation
and/or determination of facts, they can be best resolved after trial on the merits.
While the lower courts erred in dismissing the complaint, private respondents,
however, cannot be denied their day in court. While, in the resolution of a motion
to dismiss, the truth of the facts alleged in the complaint are theoretically
admitted, such admission is merely hypothetical and only for the purpose of
resolving the motion. In case of denial, the movant is not to be deprived of the
right to submit its own case and to submit evidence to rebut the allegations in the
complaint. Neither will the grant of the motion by a trial court and the ultimate
reversal thereof by an appellate court have the effect of stifling such right. 23 So
too, the trial court should be given the opportunity to evaluate the evidence, apply
the law and decree the proper remedy. Hence, we remand the instant case to the
trial court to allow private respondents to have their day in court.
WHEREFORE, the petition is GRANTED. The assailed decisions of the trial
court and Court of Appeals are hereby REVERSED and SET ASIDE. The case
is REMANDED to the Regional Trial Court of Makati for further proceedings.
SO ORDERED.
GR No. L- 15756. February 15, 1922
Sinforoso de Gala, plaintiff and appellant, vs. Pedro de Gala et al.,
defendants. Josefa Alabastro and Generoso de Gala, appellees.
his action was commenced in the Court of First Instance of the Province of
Tayabas on the 29th day of August, 1917. Its purpose was to compel the
defendant Pedro de Gala to recognize the plaintiff as his natural son. The
complaint alleged that the plaintiff had been in the uninterrupted possession of
the status of a natural child of the defendant, justified by the conduct of the latter
and that of his family. To that complaint the defendant interposed a general
denial.
Upon the issue thus presented the cause was brought on for trial, at the close of
which the Honorable Jose C. Abreu, judge, rendered a judgment dismissing the
plaintiff's complaint and absolved the defendant from all liability thereunder,
without any finding as to costs. From that judgment the plaintiff appealed to this
court. During the pendency of the appeal, in this court, the defendant Pedro de
Gala died; and, at the suggestion of the plaintiff, the deceased defendant was
substituted in this instance by his surviving spouse, Josefa Alabastro, and his only
legitimate son, Generoso de Gala.
The appellant alleges that the lower court committed an error —
(1) In not admitting plaintiff's Exhibit C in evidence; (2) in finding that the facts
in this case are very similar, if not identical, to those in the case of Buenaventura
vs. Urbano (5 Phil., 1); and (3) in finding that the facts in the present case do not
show that the plaintiff has been in the uninterrupted possession of the status of a
natural child of the defendant Pedro de Gala.
Exhibit C is a transcript of the stenographic notes taken during the trial of an
election protest case (Nadres vs. Javier) in the Court of First Instance of Tayabas,
on the 10th day of August, 1916, two years before the trial of the present case.
During that trial (of Nadres vs. Javier) Generoso de Gala, the said only legitimate
son of the defendant Pedro de Gala, testifying as a witness, declared in open court
that the plaintiff herein, Sinforoso de Gala, was his brother. The pertinent part of
his testimony was as follows:
Q. Is Eugenio de Gala, the witness who testified before, your brother? — A.
Brother by my father.
Q. And Sinforoso de Gala? — A. Also, brother by my father. (Pages 9 and 10,
Exhibit C.)
That testimony of Generoso de Gala, duly identified by Juan Merchan, clerk of
the Court of First Instance of Tayabas, was offered in evidence by the plaintiff
during the trial of this cause. To its admission the defendant objected upon the
ground that it was "impertinent." The lower court sustained the objection, stating
that, in the first place, the said Generoso de Gala was not an interested party in
this case, and, in the second place, the mere fact that Generoso de Gala declared
that Sinforoso de Gala was his brother would not entitle the latter to be recognized
as a natural son of the defendant.
Generoso de Gala, the only legitimate son of the defendant Pedro de Gala, being
a member of the latter's family, his spontaneous admission, publicly made, in
open court, that the plaintiff, Sinforoso de Gala, was his brother, cannot be said
to be "impertinent" for the purpose of proving the plaintiff's claim; for, that
admission was a "conduct" on his part which tends to confirm the status claimed
by the alleged natural child. Neither can it be said that the said only legitimate
child of the defendance Pedro de Gala was not an interested party in this case
(he is now a party appellee herein), for he is a forced heir of the defendant, and
the latter's recognition of the plaintiff as a natural son would diminish his
hereditary rights. And, while it is true that such admission of the defendant's only
legitimate son would not, of itself, be sufficient to entitle the plaintiff to a
compulsory recognition by the defendant as his natural child, yet it should have
been admitted in evidence as a factum probans, which would help to establish
the factum probandum — the uninterrupted possession of the status of a natural
child. Such status, of course, cannot be proved by a single specific act or conduct
of the defendant or of his family. It must necessarily be proved by showing a
series of acts, conduct, and circumstances indicative of the intention of the
putative father to acknowledge his alleged natural child. Hence, to reject evidence
of a single act, conduct, or circumstance as being insufficient to prove the status
claimed, would be to prevent the claimant from proving it at all.
The evident purpose of presenting Exhibit C was to show that the plaintiff had
been "in the uninterrupted possession of the status of a natural child of the
defendant father, justified by the conduct of the father himself or that of his
family." For that purpose Exhibit C was perhaps admissible. However,
considering the fact that the plaintiff was born in the year 1879, before the
adoption of the Civil Code, the provisions of la Ley de Toro may govern in the
solution of the question of recognition. If by the recognition a right was vested in
the plaintiff from acts realized under the legislation preceding the Civil Code, and
if such act gave him the status of legal recognition, then it is clear from the
provisions of the transitory provisions of the Civil Code that the legislation
preceding that Code must govern.
Under la Ley de Toro, a natural child might be recognized tacitly, and the
recognition was open to such proof as would support the fact in an ordinary
action. (Decision of the supreme court of Spain, November 8, 1893,
74 Jurisprudencia Civil, p. 301; Llorente vs. Rodriguez, 3 Phil., 697.)
It will be found upon an examination of the facts hereinafter stated, that the
defendant not only made a tacit, but a express recognition of the plaintiff as his
natural child, both before and after the adoption of the Civil Code (year 1879).
If acts of recognition took place before the adoption of the Civil Code, and if they
were sufficient under the prior law to constitute a recognition, then the defendant
cannot require the proof of recognition prescribed by the new law (Civil Code).
Appellant's second and third assignments or error may be discussed together, for
it is necessary to determine first the facts in the present case in order to be able to
compare them with those in the case of Buenaventura vs. Urbano, referred to in
the second assignment of error.
The plaintiff-appellant was born on the 17th day of July, 1879, in the municipality
of Tiaong, Province of Tayabas, and was baptized with the name "Sinforoso
Dimatulac." The baptismal certificate (Exhibit B) described him as a "natural son
of Dominga Dimatulac, a single woman, and of an unknown father;" that the said
"unknown father" was no other than the defendant Pedro de Gala in this case,
which the evidence adduced during the trial of the cause reveals in an indirect but
most convincing manner; that at the time of the birth of the plaintiff there existed
no impediment to the marriage of the mother with the alleged father.
Less than a month after the birth of the plaintiff, the defendant was married to
Josefa Alabastro. (Exhibit A.)
During his infancy and childhood, the plaintiff lived with his mother in the barrio
of Quinatihan, of the municipality of Candelaria (formerly Tiaong). In the same
barrio also lived the defendant. The defendant not only frequented the house
where the plaintiff lived with his mother, but provided sustenance for both the
latter and the plaintiff, giving them rice out of hi camarin.
Later, and during his childhood, the defendant sent the plaintiff to a school in the
town, conducted by one Norberto Virrey, and the defendant paid for his
instruction. While in school, the plaintiff was enrolled under the name of
"Sinforoso Dimatulac," but was known and called by his classmates and others
by the name "Sinforoso de Gala." It appears that when he became old enough to
know that his father's surname was not Dimatulac but "De Gala," he adopted the
latter surname, with the acquiscence of the defendant.
But the defendant's paternal care and attention for the plaintiff were not confined
to the period of the latter's childhood. He continued to give the plaintiff money
to spend even after the latter had reached more mature years. And not only that:
he had a house built for the plaintiff, and also gave him a parcel of land to
cultivate as his own. Later, however, the plaintiff returned said parcel of land to
the defendant, asking that another, planted with coconuts, be given him in lieu
thereof, which the defendant promised to do.
The proof shows that the plaintiff always addressed the defendant as "father"
(tatay), in public as well as in private, to which address the defendant responded.
He was a frequent caller at the defendant's home. He used to kiss defendant's
hand after the evening prayers. He sat at the table with defendant and his family
frequently. He was in constant company with defendant in the cockpit, not only
of Candelaria but also of other towns. He was regarded as a brother by defendant's
only legitimate son; and, in fact, according to one of the witnesses, the whole
town of Candelaria knew the plaintiff as the natural son of Capitan Pedro de
Gala, the defendant. It was not until the present suit was instituted, that the
defendant withdrew his apparent paternal considerations which he had
theretofore always shown towards the plaintiff.
A few quotations from the testimony of witnesses will emphasize the foregoing
facts. Narciso de Gala, nephew of the defendant Pedro de Gala, testified in part
as follows:
Q. What is your connection with the plaintiff Sinforoso de Gala? — A. He is my
first cousin.
Q. What is Sinforoso de Gala's connection with the defendant Pedro de Gala? —
A. He is a natural son.
Q. Why do you say that the plaintiff Sinforoso de Gala is the natural child of
Pedro de Gala? — A. Because when he was a child (Sinforoso de Gala) it was
the herein defendant who supported him until he grew up.
Q. Can you tell us whether the plaintiff Sinforoso de Gala has attended any
school? — A. Yes, sir.
Q. Who paid for his education while in school? — A. It was Capitan Pedro de
Gala who arranged with the schoolmaster so that he might attend school.
Q. Until when he has the plaintiff Sinforoso de Gala been supported or given
support by Capitan Pedro de Gala? — A. After the reconcentration, and even
before it I have seen him give support or maintenance to the herein plaintiff, and
it was only one year since he ceased to do so. (Pages 3 and 4, part I, test.)
xxx xxx xxx
Q. Can you tell from your own personal observation the treatment the defendant
Pedro de Gala gives in public and in private and in his house to the plaintiff,
Sinforoso de Gala? — A. As a son. A good treatment.
Q. Have you seen Sinforoso de Gala eat in the house of Pedro de Gala? — A.
Yes, sir.
Q. Who else ate with him at the table? — A. We and the married couple.
Q. Whom do you mean by married couple? — A. Capitan Pedro and his wife.
Q. How does the plaintiff Sinforoso de Gala call Pedro de Gala? — A. Father
Q. How did Pedro de Gala answer him? — A. He answered him, "What do you
want?" (Pages 5 and 6, sten. notes.)
Q. Do you know whether Sinforoso de Gala ever had a house in Candelaria? —
A. Yes, sir.
Q. Have you ever seen them go together to the cockpit? — A. Yes, sir;
and Capitan Pedro used to tell him to bet on the favorite roosters. (Pages 8 and
9, sten. notes.)
Hermenegildo Nadres, who had been a neighbor of, and had known, the plaintiff
since his infancy, testified in part as follows:
Q. Do you know who looked after the support of Sinforoso de Gala since his
birth? — A. Pedro de Gala
Q. Why can you state that? — A. Because Sinforoso de Gala had no other means
of support, and lived only on what Pedro gave him, and I saw him give several
times because Sinforoso had no means of support and lived only on what Pedro
gave.
Q. How often did you see Pedro de Gala go to the house of Sinforoso de Gala?
— A. Many times.
Q. Do you know if Sinforoso de Gala studied in any school? — A. He studied
under Norberto Virrey.
Q. Do you know who sent him to the school of Norberto Virrey and who paid for
his schooling? — A. Yes, sir.
Q. Who? — A. Pedro de Gala.
xxx xxx xxx
Q. Have you ever head how Sinforoso de Gala calls Pedro de Gala? — A. I have.
Q. How? — A. Father.

Q. Who paid for the construction of that house? — A. Capita Pedro. xxx xxx xxx

Q. Have you seen Sinforoso de Gala in company with Pedro de Gala? — A. Yes, Q. Have you heard Sinforoso de Gala call Pedro de Gala father? — A. The whole
sir. town of Candelaria knows that. (Pages 20, 21 and 22, sten. notes.)

Q. On what occasions did you see them? — A. I have seen them together on xxx xxx xxx
various occasions, but cannot tell exactly when.
Q. What treatment did you see Pedro de Gala give the plaintiff Sinforoso de Gala
Q. Are you in the habit of going to the cockpit? — A. Yes, sir. when he went to the house of the latter? — A. The treatment accorded to a son.

Q. Did you ever see Sinforoso de Gala kiss the hand of Pedro Gala? — A. Yes,
sir.
Q. When did you see Sinforoso kiss Don Pedro's hand? On what occasion? — A.
Many times I have seen him kiss his hand, but I cannot remember how many.
Q. But was it before, or after the revolution against the Americans? — A. Since
the time of the Spanish regime.
Q. Until when? — A. Until they quarreled, and that was the time when the action
was commenced against Don Pedro. (Pages 23 and 24, sten. notes.)
Cross-examination:
Q. You said, have you not, that Sinforoso was treated by Pedro de Gala as his
child. What is your ground for saying that? — A. Because singe Sinforoso was
born until he grew up, he always went in company with Don Pedro wherever he
went. (Pages 30, sten. notes)
Sinforoso de Gala, the plaintiff, testified in part as follows:
Q. Since your earliest recollection, who supported you? — A. My father.
Q. Who is your father? To whom do you refer? — A. That is my father (pointing
to the defendant).
xxx xxx xxx
Q. How often did your mother take "palay," from the warehouse? — A.
Frequently. Sometimes we took the "palay," and sometimes it was brought home.
Q. When it was taken to your house by other people, how do you know that it
was Pedro de Gala who sent it? — A. Because my father used to go there and my
mother used to ask him when we had no "palay." (Pages 32 and 33, sten. notes.)
xxx xxx xxx
Q. How do you call Capitan Pedro when you meet him? — A. Father
Q. How does he answer? — A. He says to me, "What is it?"
Q. When did you stop going to the house of Pedro de Gala? A. — It is now about
a year that I stopped going to that house.
Q. How many years have you been attending the school of the teacher Berto? —
A. I believe I have been studying with him for over two years.
Q. Have you ever been in company with Pedro de Gala in any other place besides
your house? — A. Many times.
Q. In what places? — A. In Manila, in Tayabas, and here in Lucena on feast days.
Q. How many times in a month did you receive money from Pedro de Gala when
he was giving you money? — A. At any time. Sometimes before the end of the
month, sometimes in the middle of the month, and at certain other times after the
end of the month.
Q. What amount did Pedro de Gala use to give you? — A. He did not give me a
fixed amount; sometimes thirty, sometimes twenty and other times ten pesos.
(Pages 36, 37, and 38, sten. notes.)
The facts hereinabove set forth are the salient facts which we find have been
proved by a clear preponderance of the evidence in this case. In arriving at this
conclusion we have taken into consideration (1) the fact that the trial judge
himself evidently did not give credit to the testimony of the defendant and his
witnesses, for in his decision he found certain facts to have been proved which
were specifically denied by the defendant and his witnesses; and (2) by the fact
that a perusal of the testimony for the defense cannot but impress one with its
inherent weakness, the same being purely negative. "It is a general rule of
evidence that, all other things being equal, affirmative testimony is stronger than
negative; in other words, that 'the testimony of a credible witness, that he saw or
heard a particular thing at a particular time and place is more reliable than that of
an equally credible witness who, with the same opportunities, testifies that he did
not hear or see the same thing at the same time and place.'" (5 Jones on Evidence,
sec. 898, citing several cases; see also 3 Greenl. on Evidence, par. 375; and 10
R. C. L., 1011.)
In the case of Buenaventura vs. Urbano (5 Phil, 1), Conrado Cerrudo claimed to
be a natural child of Telesforo Chuidian, and the action was brought to compel
the latter's heirs to acknowledge or recognize the former as such. In that case this
court found the facts to be as follows:
The other evidence showed that the plaintiff lived with his mother for the first
seven years of his life; that he afterwards lived with his maternal grandmother,
and that for five or six months in the year 1900 or 1901 he lived with Candelaria
Chuidian, a sister of Don Telesforo; that he afterwards lived in the house of Sofia
Lopez, a mistress of Don Telesforo. He never lived in the house of his supposed
father, who maintained a house of his own, in which there lived with him for a
time two of his natural children. . . . Confining ourselves to the acts proved to
have been performed by Don Telesforo, we find that he visited the mother of the
plaintiff; that he paid money for her support; that he paid money for the support
of the plaintiff; that he told one witness that the plaintiff was his son; that the
plaintiff called him "Papa," and that Don Telesforo answered to this designation;
that when the plaintiff visited Don Telesforo he kissed his hand; that Don
Telesforo wrote letters to him; that he paid his fees for instruction in school, and
secured him a position in a commercial house.
On the other hand, it is shown that the plaintiff never lived in the house of Don
Telesforo; that the latter made his will on the 19th of December, 1897; that in this
will he recognized as his natural children two persons, Horacio and Beatriz
Lopez, children of Sofia Lopez. He did not recognize the plaintiff by this will.
Some of the aforesaid acts of Don Telesforo were done after the making of his
will.
Upon the foregoing facts this court held as follows:
All these facts taken together are not sufficient to show that plaintiff possessed
continuously the status of a natural child. . . . It must appear that it was the
intention of the father to so recognize the child as to give him that status, and that
the acts performed by him were done with that intention.
"The evidence in this case shows beyond question, in our opinion that Don
Telesforo never intended to give this plaintiff any such status. The fact that he
never lived in the house of the former, while two other of his natural children did
live there; the fact that in his will he did not recognize the plaintiff as his natural
child, while he did recognize two other children; the fact that he did not sign his
name to the letter offered in evidence, all show, to our minds, that he never
intended to give the plaintiff the status of a natural child. The acts performed by
him for the purpose of giving such status must be such as to make plain to the
public that the child possesses such a condition." There was no proof presented
in that case showing that there were any acts of recognition prior to the adoption
of the Civil Code, and therefore the acts of recognition, whatever they were, must
conform to that Code.
We are inclined to agree with the appellant herein that the facts in
the Urbano case, supra, are not similar to those in the present case in form of
recognition. It will be noted that in the said case there were clear and
unmistakable indications that the putative father did not intend to recognize his
alleged natural child: (1) Conrado (the alleged natural child) never lived with Don
Telesforo (the putative father), while two other of his natural children did live
there; (2) in his will Don Telesforo did not recognize the said Conrado as his
natural child, while he did recognize two other children; (3) Don Telesforo wrote
a letter to Conrado, but purposely avoided signing it; (4) while in the present case
there were not only tacit but actual recognition.
In the present case there are no indications that the defendant Pedro de Gala did
not intend to recognize the plaintiff as his natural son. On the contrary, it clearly
appears that he had always treated the plaintiff as a son; and his only legitimate
son, Generoso, had also treated the plaintiff as a brother. Generoso certainly
would not recognize the plaintiff as a brother if his father had been in any way
reticent about his paternity with the plaintiff. It is also worthy of notice that the
defendant permitted the plaintiff to bear his (defendant's) surname.
We are fully persuaded that the facts proven in the present case clearly establish
the uninterrupted possession by the plaintiff of the status of a natural son of the
defendant Pedro de Gala. The fact that the plaintiff was not baptized as the natural
child of the defendant is not sufficient to overcome the effect of the subsequent
treatment accorded by the latter to the former, as above indicated. Such a
statement in the certificate or record of baptism, while it would aid in proving the
status in question, is not an indispensable element of such proof. The fact that the
plaintiff did not live with the defendant is explained by the circumstance that the
latter shortly after the birth of the former, married a woman other than the
plaintiff's mother; and, it would have been unreasonable to expect the defendant
to introduce to his bride, and ask her to take care of, the fruit of his vice. It does
not appear here, as it does in the Urbano case supra, that the defendant kept other
natural children in his house. The fact that the defendant disowned the plaintiff
during the trial of this cause, cannot divest the latter of the right to recognition,
which had theretofore been vested in him. In the case of Dalistan vs. Armas (32
Phil., 648), the defendant father abandoned and disowned his natural children
after having treated them as such, but that fact did not prevent this court from
compelling him to recognize them.
We are not unmindful of the fact that the law sedulously guards the rights of the
legitimate family against any possible illegal encroachment by an alleged
illegitimate child. But, when as in the present case, the proof is clear and
convincing that the said natural child has been continuously treated as such, not
only by the natural father, but by the members of the legitimate family
themselves, we feel that is but a matter of simple justice that the natural father
should be required to recognize him as the law provides, thus extending to him
all the rights that, under the law, such recognition may entail. In this connection
Manresa says: "He who is born of an illegitimate union is as free from fault on
his part as the one born of a legitimate union. Yet, from the time of his birth, he
finds himself abandoned, without a family, and at times does not even feel the
affection of his parents, who after satisfying their animal instincts usually
separate, and if they do not attempt against the child's existence, they leave too
society the duty of taking care of the fruit of their crime or offense; and society,
although sympathizing with him, stamps the mark of infamy and scorn upon the
forehead of the unfortunate illegitimate child." (6 Manresa, 534.)

For all of the foregoing reasons, the judgment of the lower court is hereby
revoked, with the costs of this instance against the appellees, and it is hereby
ordered and decreed that a judgment be entered, requiring the appellees, Josefa
Alabastro and Generoso de Gala, to recognize and acknowledge the appellant,
Sinforoso de Gala, as the natural son of the deceased Pedro de Gala. So ordered.

Natural Children, Recognition of.—Held: Under the facts stated in the opinion,
following the law in force prior to the Civil Code, that the defendant had
recognized the plaintiff as his natural child. De Gala vs. De Gala , 42 Phil., 771,
No. 15756 February 15, 1922
 ADDITIONAL CASES
G.R. No. 121027. July 31, 1997.
CORAZON DEZOLLER TISON and RENE R. DEZOLLER, petitioners,
vs. COURT OF APPEALS and TEODORA DOMINGO, respondents.
Filiation; Parent and Child; Presumptions; There is no presumption of the law
more firmly established and founded on sounder morality and more convincing
reason than the presumption that children born in wedlock are legitimate.—It
seems that both the court a quo and respondent appellate court have regrettably
overlooked the universally recognized presumption on legitimacy. There is no
presumption of the law more firmly established and founded on sounder morality
and more convincing reason than the presumption that children born in wedlock
are legitimate. And well settled is the rule that the issue of legitimacy cannot be
attacked collaterally.
Same; Same; Same; Actions; Actions for Reconveyance; The issue of legitimacy
cannot be properly controverted in an action for reconveyance.—The issue,
therefore, as to whether petitioners are the legitimate children of Hermogenes
Dezoller cannot be properly controverted in the present action for reconveyance.
This is aside, of course, from the further consideration that private respondent is
not the proper party to impugn the legitimacy of herein petitioners. The
presumption consequently continues to operate in favor of petitioners unless and
until it is rebutted.
Same; Same; Same; Burden of Proof; The burden of proof rests on the party who
disputes the legitimacy of a particular party.—Even assuming that the issue is
allowed to be resolved in this case, the burden of proof rests not on herein
petitioners who have the benefit of the presumption in their favor, but on private
respondent who is disputing the same. This fact alone should have been sufficient
cause for the trial court to exercise appropriate caution before acting, as it did, on
the demurrer to evidence. It would have delimited the issues for resolution, as
well as the time and effort necessitated thereby.
Same; Same; Same; Evidence; In order to destroy the presumption of legitimacy,
the party against whom it operates must adduce substantial and credible evidence
to the contrary.—Ordinarily, when a fact is presumed, it implies that the party in
whose favor the presumption exists does not have to introduce evidence to
establish that fact, and in any litigation where that fact is put in issue, the party
denying it must bear the burden of proof to overthrow the presumption. The
presumption of legitimacy is so strong that it is clear that its effect is to shift the
burden of persuasion to the party claiming illegitimacy. And in order to destroy
the presumption, the party against whom it operates must adduce substantial and
credible evidence to the contrary.
Same; Same; Same; Same; A presumption is prima facie proof of the fact
presumed, and unless the fact thus established prima facie by the legal
presumption of its truth is disproved, it must stand as proved.—Where there is an
entire lack of competent evidence to the contrary, and unless or until it is rebutted,
it has been held that a presumption may stand in lieu of evidence and support a
finding or decision. Perforce, a presumption must be followed if it is
uncontroverted. This is based on the theory that a presumption is prima facie
proof of the fact presumed, and unless the fact thus established prima facie by the
legal presumption of its truth is disproved, it must stand as proved.
Same; Same; Same; Same; Pleadings and Practice; When a party opts not to
present countervailing evidence to overcome the presumption, by merely filing a
demurrer to evidence instead, he or she in effect impliedly admits the truth of
such fact.—Indubitably, when private respondent opted not to present
countervailing evidence to overcome the presumption, by merely filing a
demurrer to evidence instead, she in effect impliedly admitted the truth of such
fact. Indeed, she overlooked or disregarded the evidential rule that presumptions
like judicial notice and admissions, relieve the proponent from presenting
evidence on the facts he alleged and such facts are thereby considered as duly
proved.
Same; Same; Same; Same; Hearsay Rule; Declarations About Pedigree;
Conditions for the admission of declarations about pedigree.—The primary proof
to be considered in ascertaining the relationship between the parties concerned is
the testimony of Corazon Dezoller Tison to the effect that Teodora Dezoller
Guerrero in her lifetime, or sometime in 1946, categorically declared that the
former is Teodora’s niece. Such a statement is considered a declaration about
pedigree which is admissible, as an exception to the hearsay rule, under Section
39, Rule 130 of the Rules of Court, subject to the following conditions: (1) that
the declarant is dead or unable to testify; (2) that the declarant be related to the
person whose pedigree is the subject of inquiry; (3) that such relationship be
shown by evidence other than the declaration; and (4) that the declaration was
made ante litem motam, that is, not only before the commencement of the suit
involving the subject matter of the declaration, but before any controversy has
arisen thereon.
Same; Evidence; Hearsay Rule; Declarations About Pedigree; Where the party
claiming seeks recovery against a relative common to both claimant and
declarant—not from the declarant himself or the declarant’s estate—the
relationship of the declarant to the common relative may not be proved by the
declaration itself, but this requirement does not apply where it is sought to reach
the estate of the declarant himself and not merely to establish a right through his
declarations to the property of some other member of the family.—The general
rule, therefore, is that where the party claiming seeks recovery against a relative
common to both claimant and declarant, but not from the declarant himself or the
declarant’s estate, the relationship of the declarant to the common relative may
not be proved by the declaration itself. There must be some independent proof of
this fact. As an exception, the requirement that there be other proof than the
declarations of the declarant as to the relationship, does not apply where it is
sought to reach the estate of the declarant himself and not merely to establish a
right through his declarations to the property of some other member of the family.
Same; Same; Same; Same; Where a party claims a right to a part of the estate of
the declarant, the declaration of the latter that the former is her niece is admissible
and constitutes sufficient proof of such relationship, notwithstanding the fact that
there was no other preliminary evidence thereof, the reason being that such
declaration is rendered competent by virtue of the necessity of receiving such
evidence to avoid a failure of justice.—We are sufficiently convinced, and so
hold, that the present case is one instance where the general requirement on
evidence aliunde may be relaxed. Petitioners are claiming a right to part of the
estate of the declarant herself. Conformably, the declaration made by Teodora
Dezoller Guerrero that petitioner Corazon is her niece, is admissible and
constitutes sufficient proof of such relationship, notwithstanding the fact that
there was no other preliminary evidence thereof, the reason being that such
declaration is rendered competent by virtue of the necessity of receiving such
evidence to avoid a failure of justice. More importantly, there is in the present
case an absolute failure by all and sundry to refute that declaration made by the
decedent.
Same; Same; Same; Same; Where the subject of the declaration is the declarant’s
own relationship to another person, it seems absurd to require, as a foundation
for the admission of the declaration, proof of the very fact which the declaration
is offered to establish.—From the foregoing disquisitions, it may thus be safely
concluded, on the sole basis of the decedent’s declaration and without need for
further proof thereof, that petitioners are the niece and nephew of Teodora
Dezoller Guerrero. As held in one case, where the subject of the declaration is
the declarant’s own relationship to another person, it seems absurd to require, as
a foundation for the admission of the declaration, proof of the very fact which the
declaration is offered to establish. The preliminary proof would render the main
evidence unnecessary.
Same; Same; Same; Pleadings and Practice; It is elementary that an objection
shall be made at the time when an alleged inadmissible document is offered in
evidence, otherwise, the objection shall be treated as waived.—Applying the
general rule in the present case would nonetheless produce the same result. For
while the documentary evidence submitted by petitioners do not strictly conform
to the rules on their admissibility, we are however of the considered opinion that
the same may be admitted by reason of private respondent’s failure to interpose
any timely objection thereto at the time they were being offered in evidence. It is
elementary that an objection shall be made at the time when an alleged
inadmissible document is offered in evidence, otherwise, the objection shall be
treated as waived, since the right to object is merely a privilege which the party
may waive.
Same; Same; Same; Same; Even if certain documents are inadmissible for being
hearsay, but on account of a party’s failure to object thereto, the same may be
admitted and considered as sufficient to prove the facts therein asserted.—The
situation is aggravated by the fact that counsel for private respondent
unreservedly cross-examined petitioners, as the lone witness, on the documentary
evidence that were offered. At no time was the issue of the supposed
inadmissibility thereof, or the possible basis for objection thereto, ever raised.
Instead, private respondent’s counsel elicited answers from the witness on the
circumstances and regularity of her obtention of said documents: The
observations later made by private respondent in her comment to petitioners’
offer of exhibits, although the grounds therefor were already apparent at the time
these documents were being adduced in evidence during the testimony of
Corazon Dezoller Tison but which objections were not timely raised therein, may
no longer serve to rectify the legal consequences which resulted therefrom.
Hence, even assuming ex gratia argumenti that these documents are inadmissible
for being hearsay, but on account of herein private respondent’s failure to object
thereto, the same may be admitted and considered as sufficient to prove the facts
therein asserted.
Succession; Where a decedent is survived by the spouse and nephews and nieces,
the former shall be entitled to one-half of the inheritance and the nephews and
nieces to the other half.—Upon the death of Teodora Dezoller Guerrero, one-half
of the subject property was automatically reserved to the surviving spouse,
Martin Guerrero, as his share in the conjugal partnership. Applying the
aforequoted statutory provisions, the remaining half shall be equally divided
between the widower and herein petitioners who are entitled to jointly inherit in
their own right. Hence, Martin Guerrero could only validly alienate his total
undivided three-fourths (3/4) share in the entire property to herein private
respondent. Resultantly, petitioners and private respondent are deemed co-
owners of the property covered by Transfer Certificate of Title No. 374012 in the
proportion of an undivided one-fourth (1/4) and three-fourths (3/4) share thereof,
respectively.
Actions; Pleadings and Practice; Demurrer to Evidence; If 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.—All told, on the basis of
the foregoing considerations, the demurrer to plaintiffs’ evidence should have
been, as it is hereby, denied. Nonetheless, private respondent may no longer be
allowed to present evidence by reason of the mandate under Section 1 of revised
Rule 3 of the Rules of Court which provides that “if the motion is granted but on
appeal the order of dismissal is reversed he shall be deemed to have waived the
right to present evidence.” Tison vs. Court of Appeals, 276 SCRA 582, G.R. No.
121027 July 31, 1997
The present appeal by certiorari seeks the reversal of the judgment rendered by
respondent Court of Appeals on June 30, 19951 which affirmed the Order of
December 3, 1992 issued by the Regional Trial Court of Quezon City, Branch
98, granting herein private respondent's Demurrer to Plaintiff's Evidence filed in
Civil Case No. Q-88-1054 pending therein.
The present appellate review involves an action for reconveyance filed by herein
petitioners against herein private respondent before the Regional Trial Court of
Quezon City, Branch 98, docketed as the aforesaid Civil Case No. Q-88-1054,
over a parcel of land with a house and apartment thereon located at San Francisco
del Monte, Quezon City and which was originally owned by the spouses Martin
Guerrero and Teodora Dezoller Guerrero. It appears that petitioners Corazon
Tison and Rene Dezoller are the niece and nephew, respectively, of the deceased
Teodora Dezoller Guerrero who is the sister of petitioner's father, Hermogenes
Dezoller. Teodora Dezoller Guerrero died on March 5, 1983 without any
ascendant or descendant, and was survived only by her husband, Martin
Guerrero, and herein petitioners. Petitioners' father, Hermogenes, died on
October 3, 1973, hence they seek to inherit from Teodora Dezoller Guerrero by
right of representation.
The records reveal that upon the death of Teodora Dezoller Guerrero, her
surviving spouse, Martin, executed on September 15, 1986 an Affidavit of
Extrajudicial Settlement2 adjudicating unto himself, allegedly as sole heir, the
land in dispute which is covered by Transfer Certificate of Title No. 66886, as a
consequence of which Transfer Certificate of Title No. 358074 was issued in the
name of Martin Guerrero. On January 2, 1988, Martin Guerrero sold the lot to
herein private respondent Teodora Domingo and thereafter, Transfer Certificate
of Title No. 374012 was issued in the latter's name.
Martin Guerrero died on October 25, 1988. Subsequently, herein petitioners filed
an action for reconveyance on November 2, 1988, claiming that they are entitled
to inherit one-half of the property in question by right of representation.
At the pre-trial conference, the following issues were presented by both parties
for resolution:
(1) whether or not the plaintiffs (herein petitioners) are the nephew and
niece of the late Teodora Dezoller;
(2) whether or not the plaintiffs are entitled to inherit by right of
representation from the estate of the late Teodora Dezoller;
(3) whether or not defendant (herein private respondent) must reconvey
the reserved participation of the plaintiffs to the estate of the late
Teodora Dezoller under Section 4, Rule 74 of the Rules of Court which
was duly annotated on the title of the defendant;
(4) whether or not the plaintiffs are entitled to damages, moral and
exemplary, plus attorney's fees for the willful and malicious refusal of
defendant to reconvey the participation of plaintiffs in the estate of
Teodora Dezoller, despite demands and knowing fully well that
plaintiffs are the niece and nephew of said deceased; and
(5) whether or not the subject property now in litigation can be
considered as conjugal property of the spouses Martin Guerrero and
Teodora Dezoller Guerrero.3
During the hearing, petitioner Corazon Dezoller Tison was presented as the lone
witness, with the following documentary evidence offered to prove petitioners'
filiation to their father and their aunt, to wit: a family picture; baptismal
certificates of Teodora and Hermogenes Dezoller; certificates of destroyed
records of birth of Teodora Dezoller and Hermogenes Dezoller; death certificates
of Hermogenes Dezoller and Teodora Dezoller Guerrero; certification of
destroyed records of live birth of Corazon and Rene Dezoller; joint affidavits of
Pablo Verzosa and Meliton Sitjar attesting to the parents, date and place of birth
of Corazon and Rene Dezoller; joint affidavit of Juliana Cariaga and Manuela
Cariaga attesting to the fact of marriage between Martin Guerrero and Teodora
Dezoller; and the marriage certificate of Martin and Teodora
Guerrero.4 Petitioners thereafter rested their case and submitted a written offer of
these exhibits to which a Comment5 was filed by herein private respondent.
Subsequently, private respondent filed a Demurrer to Plaintiff's Evidence on the
ground that petitioners failed to prove their legitimate filiation with the deceased
Teodora Guerrero in accordance with Article 172 of the Family Code. It is further
averred that the testimony of petitioner Corazon Dezoller Tison regarding her
relationship with her alleged father and aunt is self-serving, uncorroborated and
incompetent, and that it falls short of the quantum of proof required under Article
172 of the Family Code to establish filiation. Also, the certification issued by the
Office of the Local Civil Registrar of Himamaylan, Negros Occidental is merely
proof of the alleged destruction of the records referred to therein, and the joint
affidavit executed by Pablo Verzosa and Meliton Sitjar certifying to the date,
place of birth and parentage of herein petitioners is inadmissible for being hearsay
since the affiants were never presented for cross-examination.6
On December 3, 1992, the trial court issued an order granting the demurrer to
evidence and dismissing the complaint for reconveyance. 7
In upholding the dismissal, respondent Court of Appeals declared that the
documentary evidence presented by herein petitioners, such as the baptismal
certificates, family picture, and joint affidavits are all inadmissible and
insufficient to prove and establish filiation. Hence, this appeal.
We find for petitioners.
The bone of contention in private respondent's demurrer to evidence is whether
or not herein petitioners failed to meet the quantum of proof required by Article
172 of the Family Code to establish legitimacy and filiation. There are two points
for consideration before us: first is the issue on petitioner's legitimacy,
and second is the question regarding their filiation with Teodora Dezoller
Guerrero.
I.
It is not debatable that the documentary evidence adduced by petitioners, taken
separately and independently of each other, are not per se sufficient proof of
legitimacy nor even of pedigree. It is important to note, however, that the rulings
of both lower courts in the case are basically premised on the erroneous
assumption that, in the first place, the issue of legitimacy may be validly
controverted in an action for reconveyance, and, in the second place, that herein
petitioners have the onus probandi to prove their legitimacy and, corollarily, their
filiation. We disagree on both counts.
It seems that both the court a quo and respondent appellate court have regrettably
overlooked the universally recognized presumption on legitimacy. There is no
presumption of the law more firmly established and founded on sounder morality
and more convincing reason than the presumption that children born in wedlock
are legitimate.8 And well settled is the rule that the issue of legitimacy cannot be
attacked collaterally.
The rationale for these rules has been explained in this wise:
The presumption of legitimacy in the Family Code . . . actually fixes a civil status
for the child born in wedlock, and that civil status cannot be attacked collaterally.
The legitimacy of the child can be impugned only in a direct action brought for
that purpose, by the proper parties, and within the period limited by law.
The legitimacy of the child cannot be contested by way of defense or as a
collateral issue in another action for a different purpose. The necessity of an
independent action directly impugning the legitimacy is more clearly expressed
in the Mexican Code (Article 335) which provides: "The contest of the legitimacy
of a child by the husband or his heirs must be made by proper complaint before
the competent court; any contest made in any other way is void." This principle
applies under our Family Code. Articles 170 and 171 of the code confirm this
view, because they refer to "the action to impugn the legitimacy." This action can
be brought only by the husband or his heirs and within the periods fixed in the
present articles.
Upon the expiration of the periods provided in Article 170, the action to impugn
the legitimacy of a child can no longer be brought. The status conferred by the
presumption, therefore, becomes fixed, and can no longer be questioned. The
obvious intention of the law is to prevent the status of a child born in wedlock
from being in a state of uncertainty for a long time. It also aims to force early
action to settle any doubt as to the paternity of such child, so that the evidence
material to the matter, which must necessarily be facts occurring during the
period of the conception of the child, may still be easily available.
xxx xxx xxx
Only the husband can contest the legitimacy of a child born to his wife. He is the
one directly confronted with the scandal and ridicule which the infidelity of his
wife produces; and he should decide whether to conceal that infidelity or expose
it, in view of the moral and economic interest involved. It is only in exceptional
cases that his heir are allowed to contest such legitimacy. Outside of these cases,
none — even his heirs — can impugn legitimacy; that would amount to an insult
to his memory.9
The issue, therefore, as to whether petitioners are the legitimate children of
Hermogenes Dezoller cannot be properly controverted in the present action for
reconveyance. This is aside, of course, from the further consideration that private
respondent is not the proper party to impugn the legitimacy of herein petitioners.
The presumption consequently continues to operate in favor of petitioners unless
and until it is rebutted.
Even assuming that the issue is allowed to be resolved in this case, the burden of
proof rests not on herein petitioners who have the benefit of the presumption in
their favor, but on private respondent who is disputing the same. This fact alone
should have been sufficient cause for the trial court to exercise appropriate
caution before acting, as it did, on the demurrer to evidence. It would have
delimited the issues for resolution, as well as the time and effort necessitated
thereby.
Ordinarily, when a fact is presumed, it implies that the party in whose favor the
presumption exists does not have to introduce evidence to establish that fact, and
in any litigation where that fact is put in issue, the party denying it must bear the
burden of proof to overthrow the presumption. 10 The presumption of legitimacy
is so strong that it is clear that its effect is to shift the burden of persuasion to the
party claiming illegitimacy. 11 And in order to destroy the presumption, the party
against whom it operates must adduce substantial and credible evidence to the
contrary.12
Where there is an entire lack of competent evidence to the contrary, 13 and unless
or until it is rebutted, it has been held that a presumption may stand in lieu of
evidence and support a finding or decision. 14 Perforce, a presumption must be
followed if it is uncontroverted. This is based on the theory that a presumption
is prima facie proof of the fact presumed, and unless the fact thus
established prima facie by the legal presumption of its truth is disproved, it must
stand as proved. 15
Indubitably, when private respondent opted not to present countervailing
evidence to overcome the presumption, by merely filing a demurrer to evidence
instead, she in effect impliedly admitted the truth of such fact. Indeed, she
overlooked or disregarded the evidential rule that presumptions like judicial
notice and admissions, relieve the proponent from presenting evidence on the
facts he alleged and such facts are thereby considered as duly proved.
II.
The weight and sufficiency of the evidence regarding petitioner's relationship
with Teodora Dezoller Guerrero, whose estate is the subject of the present
controversy, requires a more intensive and extensive examination.
Petitioners' evidence, as earlier explained, consists mainly of the testimony of
Corazon Dezoller Tison, the baptismal, death and marriage certificates, the
various certifications from the civil registrar, a family picture, and several joint
affidavits executed by third persons all of which she identified and explained in
the course and as part of her testimony.
The primary proof to be considered in ascertaining the relationship between the
parties concerned is the testimony of Corazon Dezoller Tison to the effect that
Teodora Dezoller Guerrero in her lifetime, or sometime in 1946, categorically
declared that the former is Teodora's niece. 16 Such a statement is considered a
declaration about pedigree which is admissible, as an exception to the hearsay
rule, under Section 39, Rule 130 of the Rules of Court, subject to the following
conditions: (1) that the declarant is dead or unable to testify; (2) that the declarant
be related to the person whose pedigree is the subject of inquiry; (3) that such
relationship be shown by evidence other than the declaration; and (4) that the
declaration was made ante litem motam, that is, not only before the
commencement of the suit involving the subject matter of the declaration, but
before any controversy has arisen thereon.
There is no dispute with respect to the first, second and fourth elements. What
remains for analysis is the third element, that is, whether or not the other
documents offered in evidence sufficiently corroborated the declaration made by
Teodora Dezoller Guerrero in her lifetime regarding the pedigree of petitioner
Corazon Dezoller Tison or, if at all, it is necessary to present evidence other than
such declaration.
American jurisdiction has it that a distinction must be made as to when the
relationship of the declarant may be proved by the very declaration itself, or by
other declarations of said declarant, and when it must be supported by
evidence aliunde. The rule is stated thus:
One situation to be noted is that where one seeks to set up a claim through, but
not from, the declarant and to establish the admissibility of a declaration
regarding claimant's pedigree, he may not do by declarant's own statements as to
declarant's relationship to the particular family. The reason is that declarant's
declaration of his own relationship is of a self-serving nature. Accordingly there
must be precedent proof from other sources that declarant is what he claimed to
be, namely, a member of the particular family; otherwise the requirement to
admissibility that declarant's relationship to the common family must appear is
not met. But when the party claiming seeks to establish relationship in order to
claim directly from the declarant or the declarant's estate, the situation and the
policy of the law applicable are quite different. In such case the declaration of
the decedent, whose estate is in controversy, that he was related to the one who
claims his estate, is admissible without other proof of the fact of relationship.
While the nature of the declaration is then disserving, that is not the real ground
for its admission. Such declarations do not derive their evidential value from that
consideration, although it is a useful, if not an artificial, aid in determining the
class to which the declarations belong. The distinction we have note is
sufficiently apparent; in the one case the declarations are self-serving, in the
other they are competent from reasons of necessity. 17(Emphasis ours.)
The general rule, therefore, is that where the party claiming seeks recovery
against a relative common to both claimant and declarant, but not from the
declarant himself or the declarant's estate, the relationship of the declarant to the
common relative may not be proved by the declaration itself. There must be some
independent proof of this fact. 18 As an exception, the requirement that there be
other proof than the declarations of the declarant as to the relationship, does not
apply where it is sought to reach the estate of the declarant himself and not merely
to establish a right through his declarations to the property of some other member
of the family. 19
We are sufficiently convinced, and so hold, that the present case is one instance
where the general requirement on evidence aliunde may be relaxed. Petitioners
are claiming a right to part of the estate of the declarant herself. Conformably,
the declaration made by Teodora Dezoller Guerrero that petitioner Corazon is her
niece, is admissible and constitutes sufficient proof of such relationship,
notwithstanding the fact that there was no other preliminary evidence thereof, the
reason being such declaration is rendered competent by virtue of the necessity of
receiving such evidence to avoid a failure of justice. 20 More importantly, there
is in the present case an absolute failure by all and sundry to refute that
declaration made by the decedent.
From the foregoing disquisitions, it may thus be safely concluded, on the sole
basis of the decedent's declaration and without need for further proof thereof, that
petitioners are the niece and nephew of Teodora Dezoller Guerrero. As held in
one case, 21 where the subject of the declaration is the declarant's own
relationship to another person, it seems absurb to require, as a foundation for the
admission of the declaration, proof of the very fact which the declaration is
offered to establish. The preliminary proof would render the main evidence
unnecessary.
Applying the general rule in the present case would nonetheless produce the same
result. For while the documentary evidence submitted by petitioners do not
strictly conform to the rules on their admissibility, we are however of the
considered opinion that the same may be admitted by reason of private
respondent's failure to interpose any timely objection thereto at the time they were
being offered in evidence. 22 It is elementary that an objection shall
be made at the time when an alleged inadmissible document is offered in
evidence, 23otherwise, the objection shall be treated as waived, 24 since the right
to object is merely a privilege which the party may waive. 25
As explained in Abrenica vs. Gonda, et al., 26 it has been repeatedly laid down as
a rule of evidence that a protest or objection against the admission of any
evidence must be made at the proper time, otherwise it will be deemed to have
been waived. The proper time is when from the question addressed to the witness,
or from the answer thereto, or from the presentation of the proof, the
inadmissibility of the evidence is, or may be inferred.
Thus, a failure to except to the evidence because it does not conform with the
statute is a waiver if the provisions of the law. That objection to a question put to
a witness must be made at the time the question is asked. An objection to the
admission of evidence on the ground of incompetency, taken after the testimony
has been given, is too late. 27 Thus, for instance, failure to object to parol evidence
given on the stand, where the party is in a position to object, is a waiver of any
objections thereto. 28
The situation is aggravated by the fact that counsel for private respondent
unreservedly cross-examined petitioners, as the lone witness, on the
documentary evidence that were offered. At no time was the issue of the supposed
inadmissibility thereof, or the possible basis for objection thereto, ever raised.
Instead, private respondent's counsel elicited answers from the witness on the
circumstances and regularity of her obtention of said documents: The
observations later made by private respondent in her comment to petitioners' offer
of exhibits, although the grounds therefor were already apparent at the time these
documents were being adduced in evidence during the testimony of Corazon
Dezoller Tison but which objections were not timely raised therein, may no
longer serve to rectify the legal consequences which resulted therefrom. Hence,
even assuming ex gratia argumenti that these documents are inadmissible for
being hearsay, but on account of herein private respondent's failure to object
thereto, the same may be admitted and considered as sufficient to prove the facts
therein asserted. 29
Accordingly, the Certificate of Marriage (Exhibit S) wherein it is indicated that
the parents of Teodora Dezoller are Isabelo Dezoller and Cecilia Calpo, as well
as the Certificates of Baptism of Teodora Dezoller 30 (Exhibit H) and
Hermogenes Dezoller (Exhibit J) which both reflect the names of their parents as
Isabelo Dezoller and Cecilia Calpo, to show that Hermogenes Dezoller is the
brother of Teodora Dezoller Guerrero; and the Death Certificate of Hermogenes
Dezoller (Exhibit K) the entries wherein were made by petitioner Corazon
Dezoller Tison as his daughter, together with the Joint Affidavits of Pablo
Verzosa and Meliton Sitjar (Exhibits N and P), to prove that herein petitioners
are the children of Hermogenes Dezoller — these can be deemed to have
sufficiently established the relationship between the declarant and herein
petitioners. This is in consonance with the rule that a prima facie showing is
sufficient and that only slight proof of the relationship is required. 31 Finally, it
may not be amiss to consider as in the nature of circumstantial evidence the fact
that both the declarant and the claimants, who are the subject of the declaration,
bear the surname Dezoller. 32
III.
The following provisions of the Civil Code provide for the manner by which the
estate of the decedent shall be divided in this case, to wit:
Art. 975. When children of one or more brothers or sisters of the deceased
survive, they shall inherit from the latter by representation, if they survive with
their uncles or aunts. But if they alone survive, they shall inherit in equal portions.
Art. 995. In the absence of legitimate descendants and ascendants, and
illegitimate children and their descendants, whether legitimate or illegitimate, the
surviving spouse shall inherit the entire estate, without prejudice to the rights of
brothers and sisters, nephews and nieces, should there be any, under Article 1001.
Art. 1001. Should brothers and sisters or their children survive with the widow
or widower, the latter shall be entitled to one-half of the inheritance and the
brothers and sisters or theirs children to the other half.
Upon the death of Teodora Dezoller Guerrero, one-half of the subject property
was automatically reserved to the surviving spouse, Martin Guerrero, as his share
in the conjugal partnership. Applying the aforequoted statutory provisions, the
remaining half shall be equally divided between the widower and herein
petitioners who are entitled to jointly inherit in their own right. Hence, Martin
Guerrero could only validly alienate his total undivided three-fourths (3/4) share
in the entire property to herein private respondent. Resultantly, petitioners and
private respondent are deemed co-owners of the property covered by Transfer
Certificate of Title No. 374012 in the proportion of an undivided one-fourth (1/4)
and three-fourths (3/4) share thereof, respectively.
All told, on the basis of the foregoing considerations, the demurrer to plaintiff's
evidence should have been, as it is hereby, denied. Nonetheless, private
respondent may no longer be allowed to present evidence by reason of the
mandate under Section 1 of revised Rule 3 of the Rules of Court which provides
that "if the motion is granted but on appeal the order of dismissal is reversed he
shall be deemed to have waived the right to present evidence." 33
WHEREFORE, the questioned judgment of respondent Court of Appeals is
hereby REVERSED and SET ASIDE, and herein petitioners and private
respondent are declared co-owners of the subject property with an undivided one-
fourth (1/4) and three-fourths (3/4) share therein, respectively.
SO ORDERED.
Notes.—Hearsay evidence alone may be insufficient to establish a fact in an
injunction suit but, when no objection is made thereto, it is, like any other
evidence, to be considered and given the importance it deserves. (Top-Weld
Manufacturing, Inc. vs. ECED, S.A., 138 SCRA 118 [1985])

Photographs of a person at baptism and in the house do not prove that he is the
father. (Fernandez vs. Court of Appeals, 230 SCRA 130 [1994]) Tison vs. Court
of Appeals, 276 SCRA 582, G.R. No. 121027 July 31, 1997
G.R. No. 124853. February 24, 1998.
FRANCISCO L. JISON, petitioner, vs. COURT OF APPEALS and
MONINA JISON, respondents.
Courts; Appeals; While it is a general rule that factual issues are not within the
province of the Supreme Court, such rule does not apply where there are
conflicting findings of facts of the trial court and the Court of Appeals.—In issue
is whether or not public respondent Court of Appeals committed reversible error,
which, in this instance, necessitates an inquiry into the facts. While as a general
rule, factual issues are not within the province of this Court, nevertheless, in light
of the conflicting findings of facts of the trial court and the Court of Appeals, this
case falls under an exception to this rule.
Parent and Child; Paternity and Filiation; Family Code; The Family Code has
retroactive effect unless there be impairment of vested rights.—Before
addressing the merits of the controversy, we first dispose of preliminary matters
relating to the applicable law and the guiding principles in paternity suits. As to
the former, plainly, the Family Code of the Philippines (Executive Order No.
209) governs the present controversy. As correctly cited by the Court of Appeals,
Uyguangco served as a judicial confirmation of Article 256 of the Family Code
regarding its retroactive effect unless there be impairment of vested rights, which
does not hold true here, it appearing that neither the putative parent nor the child
has passed away and the former having actually resisted the latter’s claim below.
Same; Same; Illegitimate Children; Evidence; For the success of an action to
establish illegitimate filiation under the second paragraph of Art. 172 of the
Family Code, a “high standard of proof” is required—specifically, to prove open
and continuous possession of the status of an illegitimate child, there must be
evidence of the manifestation of the permanent intention of the supposed father
to consider the child as his, by continuous and clear manifestations of parental
affection and care, which cannot be attributed to pure charity.—For the success
of an action to establish illegitimate filiation under the second paragraph, which
MONINA relies upon given that she has none of the evidence mentioned in the
first paragraph, a “high standard of proof” is required. Specifically, to prove open
and continuous possession of the status of an illegitimate child, there must be
evidence of the manifestation of the permanent intention of the supposed father
to consider the child as his, by continuous and clear manifestations of parental
affection and care, which cannot be attributed to pure charity. Such acts must be
of such a nature that they reveal not only the conviction of paternity, but also the
apparent desire to have and treat the child as such in all relations in society and
in life, not accidentally, but continuously. By “continuous” is meant
uninterrupted and consistent, but does not require any particular length of time.
Same; Same; Evidence; Rationale for the “High Standard of Proof” Requirement
in Filiation Proceedings.—The foregoing standard of proof required to establish
one’s filiation is founded on the principle that an order for recognition and
support may create an unwholesome atmosphere or may be an irritant in the
family or lives of the parties, so that it must be issued only if paternity or filiation
is established by clear and convincing evidence.
Same; Same; Same; Words and Phrases; Quantum of Evidence; The concept of
“preponderance of evidence” refers to evidence which is of greater weight, or
more convincing, that which is offered in opposition to it—at bottom, it means
probability of truth.—The foregoing discussion, however, must be situated within
the general rules on evidence, in light of the burden of proof in civil cases, i.e.,
preponderance of evidence, and the shifting of the burden of evidence in such
cases. Simply put, he who alleges the affirmative of the issue has the burden of
proof, and upon the plaintiff in a civil case, the burden of proof never parts.
However, in the course of trial in a civil case, once plaintiff makes out a prima
facie case in his favor, the duty or the burden of evidence shifts to defendant to
controvert plaintiff’s prima facie case, otherwise, a verdict must be returned in
favor of plaintiff. Moreover, in civil cases, the party having the burden of proof
must produce a preponderance of evidence thereon, with plaintiff having to rely
on the strength of his own evidence and not upon the weakness of the defendant’s.
The concept of “preponderance of evidence” refers to evidence which is of
greater weight, or more convincing, that which is offered in opposition to it; at
bottom, it means probability of truth.
Same; Same; Same; Unlawful intercourse will not be presumed merely from
proof of an opportunity for such indulgence; Akin to the crime of rape where, on
most instances, the only witnesses to the felony are the participants in the sexual
act themselves, in deciding paternity suits, the issue of whether sexual intercourse
actually occurred inevitably redounds to the victim’s or mother’s word, as against
the accused’s or putative father’s protestations.—FRANCISCO’s arguments in
support of his first assigned error deserve scant consideration. While it has been
observed that unlawful intercourse will not be presumed merely from proof of an
opportunity for such indulgence, this does not favor FRANCISCO. Akin to the
crime of rape where, in most instances, the only witnesses to the felony are the
participants in the sexual act themselves, in deciding paternity suits, the issue of
whether sexual intercourse actually occurred inevitably redounds to the victim’s
or mother’s word, as against the accused’s or putative father’s protestations. In
the instant case, MONINA’s mother could no longer testify as to the fact of
intercourse, as she had, unfortunately, passed away long before the institution of
the complaint for recognition. But this did not mean that MONINA could no
longer prove her filiation. The fact of her birth and her parentage may be
established by evidence other than the testimony of her mother. The paramount
question then is whether MONINA’s evidence is coherent, logical and natural.
Same; Same; Same; Birth Certificates; Baptismal Certificates; A certificate of
live birth purportedly identifying the putative father is not competent evidence as
to the issue of paternity, when there is no showing that the putative father had a
hand in the preparation of said certificates, and the Local Civil Registrar is devoid
of authority to record the paternity of an illegitimate child upon the information
of a third person; Lack of participation by the putative father in the preparation
of the baptismal certificates and school records renders such documents
incompetent to prove paternity, the former being competent merely to prove the
administration of the sacrament of baptism on the date so specified.—
MONINA’s reliance on the certification issued by the Local Civil Registrar
concerning her birth (Exhs. E and F) is clearly misplaced. It is settled that a
certificate of live birth purportedly identifying the putative father is not
competent evidence as to the issue of paternity, when there is no showing that the
putative father had a hand in the preparation of said certificates, and the Local
Civil Registrar is devoid of authority to record the paternity of an illegitimate
child upon the information of a third person. Simply put, if the alleged father did
not intervene in the birth certificate, e.g., supplying the information himself, the
inscription of his name by the mother or doctor or registrar is null and void; the
mere certificate by the registrar without the signature of the father is not proof of
voluntary acknowledgment on the latter’s part. In like manner, FRANCISCO’s
lack of participation in the preparation of the baptismal certificates (Exhs. C and
D) and school records (Exhs. Z and AA) renders these documents incompetent to
prove paternity, the former being competent merely to prove the administration
of the sacrament of baptism on the date so specified. However, despite the
inadmissibility of the school records per se to prove paternity, they may be
admitted as part of MONINA’s testimony to corroborate her claim that
FRANCISCO spent for her education.
Same; Same; Same; Same; Same; Where the birth certificate and the baptismal
certificate are per se inadmissible in evidence as proof of filiation, they cannot be
admitted indirectly as circumstantial evidence to prove the same.—We likewise
disagree with the ruling of the Court of Appeals that the certificates issued by the
Local Civil Registrar and the baptismal certificates may be taken as
circumstantial evidence to prove MONINA’s filiation. Since they are per se
inadmissible in evidence as proof of such filiation, they cannot be admitted
indirectly as circumstantial evidence to prove the same.
Same; Same; Same; Evidence of Pedigree; Words and Phrases; “Family
Possessions,” Explained; Statutory Construction; Ejusdem Generis; The
enumeration contained in the second portion of Rule 130, Section 40, in light of
the rule of ejusdem generis, is limited to objects which are commonly known as
“family possessions,” or those articles which represent, in effect, a family’s joint
statement of its belief as to the pedigree of a person.—We hold that the scope of
the enumeration contained in the second portion of this provision, in light of the
rule of ejusdem generis, is limited to objects which are commonly known as
“family possessions,” or those articles which represent, in effect, a family’s joint
statement of its belief as to the pedigree of a person. These have been described
as objects “openly exhibited and well known to the family,” or those “which, if
preserved in a family, may be regarded as giving a family tradition.” Other
examples of these objects which are regarded as reflective of a family’s
reputation or tradition regarding pedigree are inscriptions on tombstones,
monuments or coffin plates.
Same; Same; Same; Same; Same; “Common Reputation,” Explained; It is the
general repute, the common reputation in the family, and not the common
reputation in community, that is a material element of evidence going to establish
pedigree.—Plainly then, Exhibits S to V, as private documents not constituting
“family possessions” as discussed above, may not be admitted on the basis of
Rule 130, Section 40. Neither may these exhibits be admitted on the basis of Rule
130, Section 41 regarding common reputation, it having been observed that:
[T]he weight of authority appears to be in favor of the theory that it is the general
repute, the common reputation in the family, and not the common reputation in
community, that is a material element of evidence going to establish pedigree. x
x x [Thus] matters of pedigree may be proved by reputation in the family, and
not by reputation in the neighborhood or vicinity, except where the pedigree in
question is marriage which may be proved by common reputation in the
community.
Same; Same; Same; Notarial Law; Quantum of Evidence; The standard to
contradict a notarial document is clear and convincing evidence, i.e., more than
merely preponderant.—Indeed, if MONINA were truly not FRANCISCO’s
illegitimate daughter, it would have been unnecessary for him to have gone to
such great lengths in order that MONINA denounce her filiation. For as clearly
established before the trial court and properly appreciated by the Court of
Appeals, MONINA had resigned from Miller & Cruz five (5) months prior to the
execution of the sworn statement in question, hence negating FRANCISCO’s
theory of the need to quash rumors circulating within Miller & Cruz regarding
the identity of MONINA’s father. Hence, coupled with the assessment of the
credibility of the testimonial evidence of the parties discussed above, it is evident
that the standard to contradict a notarial document, i.e., clear and convincing
evidence and more than merely preponderant, has been met by MONINA.
Same; Same; Same; Denials; Perjurers usually confine themselves to the
incidents immediately related to the principal fact about which they testify, and
when asked about collateral facts by which their truthfulness could be tested, their
answers not infrequently take the stereotyped form of such expressions as “I don’t
know” or “I don’t remember.”—Two (2) glaring points in FRANCISCO’s
defense beg to be addressed: First, that his testimony was comprised of mere
denials, rife with bare, unsubstantiated responses such as “That is not true,” “I do
not believe that,” or “None that I know.” In declining then to lend credence to
FRANCISCO’s testimony, we resort to a guiding principle in adjudging the
credibility of a witness and the truthfulness of his statements, laid down as early
as 1921: The experience of courts and the general observation of humanity teach
us that the natural limitations of our inventive faculties are such that if a witness
undertakes to fabricate and deliver in court a false narrative containing numerous
details, he is almost certain to fall into fatal inconsistencies, to make statements
which can be readily refuted, or to expose in his demeanor the falsity of his
message. For this reason it will be found that perjurers usually confine themselves
to the incidents immediately related to the principal fact about which they testify,
and when asked about collateral facts by which their truthfulness could be tested,
their answers not infrequently take the stereotyped form of such expressions as
“I don’t know” or “I don’t remember.”
Laches; Elements; Doctrine of Stale Demands.—The last assigned error
concerning laches likewise fails to convince. The essential elements of laches are:
(1) conduct on the part of the defendant, or of one under whom he claims, giving
rise to the situation of which the complaint seeks a remedy; (2) delay in asserting
the complainant’s rights, the complainant having had knowledge or notice of the
defendant’s conduct as having been afforded an opportunity to institute a suit; (3)
lack of knowledge or notice on the part of the defendant that the complaint would
assert the right in which he bases his suit; and (4) injury or prejudice to the
defendant in the event relief is accorded to the complainant, or the suit is not held
barred. The last element is the origin of the doctrine that stale demands apply
only where by reason of the lapse of time it would be inequitable to allow a party
to enforce his legal rights.
Same; Laches is based upon grounds of public policy which requires, for the
peace of society, the discouragement of stale claims, and is principally a question
of the inequity or unfairness of permitting a right or claim to be enforced or
asserted.—As FRANCISCO set up laches as an affirmative defense, it was
incumbent upon him to prove the existence of its elements. However, he only
succeeded in showing MONINA’s delay in asserting her claim, but miserably
failed to prove the last element. In any event, it must be stressed that laches is
based upon grounds of public policy which requires, for the peace of society, the
discouragement of stale claims, and is principally a question of the inequity or
unfairness of permitting a right or claim to be enforced or asserted. There is no
absolute rule as to what constitutes laches; each case is to be determined
according to its particular circumstances. The question of laches is addressed to
the sound discretion of the court, and since it is an equitable doctrine, its
application is controlled by equitable considerations. It cannot be worked to
defeat justice or to perpetuate fraud and injustice. Since the instant case involves
paternity and filiation, even if illegitimate, MONINA filed her action well within
the period granted her by a positive provision of law. A denial then of her action
on ground of laches would clearly be inequitable and unjust. Jison vs. Court of
Appeals, 286 SCRA 495, G.R. No. 124853 February 24, 1998
This is a petition for review under Rule 45 of the Rules of Court of the 27 April
1995 decision of the Court of Appeals (CA) in CA-G.R. CV No. 328601 which
reversed the decision of Branch 24 of the Regional Trial Court (RTC) of Iloilo
City in Civil Case No. 16373.2 The latter dismissed the complaint of private
respondent Monina Jison (hereafter MONINA) for recognition as an illegitimate
child of petitioner Francisco Jison (hereafter FRANCISCO).
In issue is whether or not public respondent Court of Appeals committed
reversible error, which, in this instance, necessitates an inquiry into the facts.
While as a general rule, factual issues are not within the province of this Court,
nevertheless, in light of the conflicting findings of facts of the trial court and the
Court of Appeals, this case falls under an exception to this
rule.3cräläwvirtualibräry
In her complaint4 filed with the RTC on 13 March 1985, MONINA alleged that
FRANCISCO had been married to a certain Lilia Lopez Jison since 1940. At the
end of 1945 or the start of 1946, however, FRANCISCO impregnated Esperanza
F. Amolar (who was then employed as the nanny of FRANCISCO's daughter,
Lourdes). As a result, MONINA was born on 6 August 1946, in Dingle, Iloilo,
and since childhood, had enjoyed the continuous, implied recognition as an
illegitimate child of FRANCISCO by his acts and that of his family. MONINA
further alleged that FRANCISCO gave her support and spent for her education,
such that she obtained a Master's degree, became a certified public accountant
(CPA) and eventually, a Central Bank examiner. In view of FRANCISCO's
refusal to expressly recognize her, MONINA prayed for a judicial declaration of
her illegitimate status and that FRANCISCO support and treat her as such.
In his answer,5 FRANCISCO alleged that he could not have had sexual relations
with Esperanza Amolar during the period specified in the complaint as she had
ceased to be in his employ as early as 1944, and did not know of her whereabouts
since then; further, he never recognized MONINA, expressly or impliedly, as his
illegitimate child. As affirmative and special defenses, FRANCISCO contended
that MONINA had no right or cause of action against him and that her action was
barred by estoppel, laches and/or prescription. He thus prayed for dismissal of
the complaint and an award of damages due to the malicious filing of the
complaint.
After MONINA filed her reply,6 pre-trial was conducted where the parties
stipulated on the following issues:
1. Did Francisco Jison have any sexual relation[s] with Esperanza
Am[o]lar about the end of 1945 or the start of 1946?
2. Is Monina Jison the recognized illegitimate daughter of Francisco
Jison by the latters own acts and those of his family?
3. Is Monina Jison barred from instituting or prosecuting the present
action by estoppel, laches and/or prescription?
4. Damages.7
At trial on the merits, MONINA presented a total of eleven (11) witnesses,
namely: herself, Ruben Castellanes, Sr., Adela Casabuena, Arsenio Duatin,
Zafiro Ledesma, Danthea Lopez, Romeo Bilbao, Rudy Tingson, Alfredo
Baylosis, Dominador Zavariz and Lope Amolar.
Ruben Castellanes, Sr., a 63-year old resident of Iloilo City, testified that he had
worked for FRANCISCO for a total of six (6) years at Nelly Garden,
FRANCISCO's Iloilo residence. Towards the end of the Japanese occupation,
FRANCISCOs wife suffered a miscarriage or abortion, thereby depriving
FRANCISCO of consortium; thereafter, FRANCISCOs wife managed a
nightclub on the ground floor of Nelly Garden which operated daily from 6:00
p.m. till 3:00 a.m. of the following day, thereby allowing FRANCISCO free
access to MONINAs mother, Esperanza Amolar, who was nicknamed Pansay.
Adela Casabuena, a 61-year old farmer, testified that she served as
the yaya (nanny) of Lourdes from July 1946 up to February 1947.
Although Pansay had left Nelly Garden two (2) weeks before Adela started
working for the Jisons, Pansay returned sometime in September 1946, or about
one month after she gave birth to MONINA, to ask FRANCISCO for support. As
a result, Pansay and Lilia Jison, FRANCISCO's wife, quarreled in the living
room, and in the course thereof, Pansay claimed that FRANCISCO was the
father of her baby. To which, Lilia replied: I did not tell you to make that baby
so it is your fault. During the quarrel which lasted from 10:30 till 11:00 a.m.,
FRANCISCO was supposedly inside the house listening.
Arsenio Duatin, a 77-year old retired laborer, testified that from 1947 until 1977,
he worked as FRANCISCOs houseboy at the latters house on 12th Street, Capitol
Subdivision, Bacolod City. Arsenio met MONINA in 1967, when Felipe Lagarto,
the bookkeeper at Nelly Garden, informed Arsenio that MONINA,
FRANCISCOs daughter, would arrive at Bacolod City with a letter of
introduction from Lagarto.
Initially, Arsenio identified seven (7) black-and-white photographs (Exhs. X-5 to
X-11) of MONINA,8 and as he paid for the telephone bills, he likewise identified
six (6) telephone cards (Exhs. G to L). Arsenio then declared that when MONINA
arrived in Bacolod City, she introduced herself to him as FRANCISCOs
daughter. She stayed at FRANCISCOs house, but when the latter and his wife
would come over, Arsenio would conceal the presence of MONINA because
Mrs. Jison did not like to see her face. Once, Arsenio hid MONINA in the house
of FRANCISCOs sister, Mrs. Luisa Jison Alano, in Silay City; another time, at
the residence of FRANCISCOs cousin, Mrs. Concha Lopez Cuaycong. Finally,
Arsenio declared that the last time he saw MONINA was when she left for
Manila, after having finished her schooling at La Salle College in Bacolod City.
On re-direct and upon questions by the court, Arsenio disclosed that it was
FRANCISCO who instructed that MONINA be hidden whenever FRANCISCO
and his wife were around; that although FRANCISCO and MONINA saw each
other at the Bacolod house only once, they called each other through long
distance; and that MONINA addressed FRANCISCO as Daddy during their lone
meeting at the Bacolod house and were affectionate to each other. Arsenio
likewise declared that MONINA stayed at FRANCISCO's Bacolod house twice:
first for a month, then for about a week the second time. On both occasions,
however, FRANCISCO and his wife were abroad. Finally, Arsenio recalled that
FRANCISCO likewise bade Arsenio to treat MONINA like his (FRANCISCOs)
other daughters.
The testimony of Zafiro Ledesma, a 74-year old banker and former mayor of
Iloilo City, initially touched on how he and his wife were related to
FRANCISCO, FRANCISCO's wife and MONINA. Zafiro first identified Exhibit
R, a diagram of the family trees of the Jison and Lopez families, which showed
that former Vice-President Fernando Lopez was the first cousin of FRANCISCOs
wife, then told the court that the family of Vice-President Lopez treated
MONINA very well because she is considered a relative xxx by reputation, by
actual perception. Zafiro likewise identified Exhibits X-13 to X-18, photographs
taken at the 14 April 1985 birthday celebration of Mrs. Fernando Lopez, which
showed MONINA with the former Vice-President and other members of the
Lopez family.
Zafiro further testified that while MONINA lived with Mrs. Cuaycong, the latter
paid for some of MONINAs school needs and even asked MONINA to work in
a hospital owned by Mrs. Cuaycong; and that another first cousin of
FRANCISCOs wife, a certain Remedios Lopez Franco, likewise helped
MONINA with her studies and problems, and even attended MONINAs
graduation in 1978 when she obtained a masteral degree in Business
Administration, as evidenced by another photograph (Exh. X-12). Moreover,
upon Remedios recommendation, MONINA was employed as a secretary at
Merchant Financing Company, which was managed by a certain Danthea Lopez,
the wife of another first cousin of FRANCISCOs wife, and among whose
directors were Zafiro himself, his wife and Dantheas husband. In closing, Zafiro
identified MONINAs Social Security Record (Exh. W), which was signed by
Danthea as employer and where MONINA designated Remedios as the
beneficiary.
Danthea Lopez, a 58-year old housekeeper, declared that FRANCISCO was the
first cousin of her husband, Eusebio D. Lopez; and that she came to know
MONINA in the latter part of 1965 when Remedios Franco recommended
MONINA for employment at Merchant Financing Co., which Danthea managed
at that time. Remedios introduced MONINA to Danthea as being reputedly the
daughter of Mr. Frank Jison; and on several occasions thereafter, Remedios made
Danthea and the latters husband understand that MONINA was reputedly the
daughter of [FRANCISCO]. While MONINA worked at Merchant Financing,
Danthea knew that MONINA lived with Remedios; however, in the latter part of
1966, as Remedios left for Manila and MONINA was still studying at San
Agustin University, Danthea and her husband invited MONINA to live with
them. During MONINAs 6-month stay with them, she was not charged for board
and lodging and was treated as a relative, not a mere employee, all owing to what
Remedios had said regarding MONINAs filiation. As Danthea understood,
MONINA resigned from Merchant Financing as she was called by Mrs.
Cuaycong, a first cousin of Dantheas husband who lived in Bacolod City.
Romeo Bilbao, a 43-year old seaman, testified that he had worked for
FRANCISCO from 1969 up to 1980 at Nelly Garden in various capacities: as a
procurement officer, hacienda overseer and, later, as hacienda administrator.
Sometime in May, 1971, Romeo saw and heard MONINA ask her Daddy
(meaning FRANCISCO) for the money he promised to give her, but
FRANCISCO answered that he did not have the money to give, then told
MONINA to go see Mr. Jose Cruz in Bacolod City. Then in the middle of
September that year, FRANCISCO told Romeo to pick up Mr. Cruz at the Iloilo
pier and bring him to the office of Atty. Benjamin Tirol. At said office, Atty.
Tirol, Mr. Cruz and MONINA entered a room while Romeo waited outside.
When they came out, Atty. Tirol had papers for MONINA to sign, but she
refused. Atty. Tirol said that a check would be released to MONINA if she signed
the papers, so MONINA acceded, although Atty. Tirol intended not to give
MONINA a copy of the document she signed. Thereafter, Mr. Cruz gave
MONINA a check (Exh. Q), then MONINA grabbed a copy of the document she
signed and ran outside. Romeo then brought Mr. Cruz to Nelly Garden. As to his
motive for testifying, Romeo stated that he wanted to help MONINA be
recognized as FRANCISCOS daughter.
Rudy Tingson, a 45-year old antique dealer, testified that in 1963-1964, he was
employed by FRANCISCOs wife at the Baguio Military Institute in Baguio City;
then in 1965, Rudy worked at FRANCISCOs office at Nelly Garden recording
hacienda expenses, typing vouchers and office papers, and, at times, acting as
paymaster for the haciendas. From the nature of his work, Rudy knew the persons
receiving money from FRANCISCOs office, and clearly remembered that in
1965, as part of his job, Rudy gave MONINA her allowance from FRANCISCO
four (4) times, upon instructions of a certain Mr. Lagarto to give MONINA
P15.00 a month. Rudy likewise recalled that he first met MONINA in 1965, and
that she would go to Nelly Garden whenever FRANCISCOs wife was not around.
On some of these occasions, MONINA would speak with and address
FRANCISCO as Daddy, without objection from FRANCISCO. In fact, in 1965,
Rudy saw FRANCISCO give MONINA money thrice. Rudy further declared that
in April 1965, FRANCISCOs office paid P250.00 to Funeraria Bernal for the
funeral expenses of MONINAs mother. Finally, as to Rudy's motives for
testifying, he told the court that he simply wanted to help bring out the truth and
nothing but the truth, and that MONINAs filiation was common knowledge
among the people in the office at Nelly Garden.
On re-direct, Rudy declared that the moneys given by FRANCISCOs office to
MONINA were not reflected in the books of the office, but were kept in a separate
book, as Mr. Lagarto explained that FRANCISCOs wife and children should not
know [of] this. Rudy further revealed that as to the garden meetings between
FRANCISCO and MONINA, Rudy saw MONINA kiss FRANCISCO on the
cheek both upon arriving and before leaving, and FRANCISCOs reaction upon
seeing her was to smile and say in the Visayan dialect: Kamusta ka iha? (How
are you, daughter?); and that MONINA was free to go inside the house as the
household staff knew of her filiation, and that, sometimes, MONINA would join
them for lunch.
Alfredo Baylosis, a 62-year old retired accountant, testified that he worked for
FRANCISCO at Central Santos-Lopez in Iloilo from 1951 up to 1961, then at
Nelly Garden from 1961 until 1972. Alfredo first served FRANCISCO as a
bookkeeper, then when Mr. Lagarto died in 1967 or 1969, Alfredo replaced Mr.
Lagarto as office manager.
Alfredo knew MONINA since 1961 as she used to go to Nelly Garden to claim
her P15.00 monthly allowance given upon FRANCISCOs standing order.
Alfredo further declared that MONINAs filiation was pretty well-known in the
office; that he had seen MONINA and FRANCISCO go from the main building
to the office, with FRANCISCOs arm on MONINAs shoulder; and that the office
paid for the burial expenses of Pansay, but this was not recorded in the books in
order to hide it from FRANCISCOs wife. Alfredo also disclosed that the
disbursements for MONINAs allowance started in 1961 and were recorded in a
separate cash book. In 1967, the allowances ceased when MONINA stopped
schooling and was employed in Bacolod City with Miller, Cruz & Co., which
served as FRANCISCOs accountant-auditor. Once, when Alfredo went to the
offices of Miller, Cruz & Co. to see the manager, Mr. Atienza, and arrange for
the preparation of FRANCISCOs income tax return, Alfredo chanced upon
MONINA. When Alfredo asked her how she came to work there, she answered
that her Daddy, FRANCISCO, recommended her, a fact confirmed by Mr.
Atienza. Alfredo then claimed that Mr. Jose Cruz, a partner at Miller, Cruz &
Co., was the most trusted man of FRANCISCO.
Dominador Savariz, a 55-year old caretaker, testified that he worked as
FRANCISCOs houseboy at Nelly Garden from November 1953 up to 1965. One
morning in April 1954, MONINA and her mother Pansay went to Nelly Garden
and spoke with FRANCISCO for about an hour, during which time, Dominador
was vacuuming the carpet about six (6) to seven (7) meters away. Due to the
noise of the vacuum cleaner, FRANCISCO and MONINA spoke in loud voices,
thus Dominador overheard their conversation. As FRANCISCO
asked Pansay why they came, Pansay answered that they came to ask for the
sustenance of his child MONINA. FRANCISCO then touched MONINA's head
and asked: How are you Hija?, to which MONINA answered: Good morning,
Daddy. After FRANCISCO told Pansay and MONINA to wait, he pulled
something from his wallet and said to Pansay: I am giving this for the child.
In May 1954, Dominador saw MONINA at Mr. Lagartos office where
Dominador was to get the days expenses, while MONINA was claiming her
allowance from Mr. Diasnes. The next month, Dominador saw MONINA at
Nelly Garden and heard in the office that MONINA was there to get her
allowance from her Daddy. In December 1960, Dominador saw MONINA at
Nelly Garden, in the room of Don Vicente (father of FRANCISCOs wife), where
she asked for a Christmas gift and she was calling Don
Vicente, Lolo (grandfather). At that time, FRANCISCO and his wife were not
around. Then sometime in 1961, when Dominador went to Mr. Lagartos office to
get the marketing expenses, Dominador saw MONINA once more claiming her
allowance.
Dominador further testified that in February 1966, after he had stopped working
for FRANCISCO, Dominador was at Mrs. Francos residence as she
recommended him for employment with her sister, Mrs. Concha Cuaycong.
There, he saw MONINA, who was then about 15 years old, together with Mrs.
Francos daughter and son. Mrs. Franco pointed at MONINA and asked
Dominador if he knew who MONINA was. Dominador answered that MONINA
was FRANCISCOs daughter with Pansay, and then Mrs. Franco remarked that
MONINA was staying with her (Mrs. Franco) and that she was sending
MONINA to school at the University of San Agustin.
Lope Amolar, a 50-year old resident of Dingle, Iloilo, and the younger brother of
Esperanza Amolar (Pansay), testified that he worked for FRANCISCO as a
houseboy from March to November 1945 at Nelly Garden. Thereafter,
FRANCISCO sent Lope to work at Elena Apartments in Manila. By November
1945, Pansay was also working at Elena Apartments, where she revealed to Lope
that FRANCISCO impregnated her. Lope then confronted FRANCISCO, who
told Lope dont get hurt and dont cause any trouble, because I am willing to
support your Inday Pansay and my child. Three (3) days after this confrontation,
Lope asked for and received permission from FRANCISCO to resign because he
(Lope) was hurt.
On 21 October 1986, MONINA herself took the witness stand. At that time, she
was 40 years old and a Central Bank Examiner. She affirmed that as evidenced
by certifications from the Office of the Local Civil Registrar (Exhs. E and F) and
baptismal certificates (Exhs. C and D), she was born on 6 August 1946 in
Barangay Tabugon, Dingle, Iloilo, to Esperanza Amolar (who passed away on 20
April 1965) and FRANCISCO.9MONINA first studied at Sagrado where she
stayed as a boarder. While at Sagrado from 1952 until 1955 (up to Grade 4), her
father, FRANCISCO, paid for her tuition fees and other school expenses. She
either received the money from FRANCISCO or from Mr. Lagarto, or saw
FRANCISCO give money to her mother, or Mr. Lagarto would pay Sagrado
directly. After Sagrado, MONINA studied in different schools,10 but
FRANCISCO continuously answered for her schooling.
For her college education, MONINA enrolled at the University of Iloilo, but she
later dropped due to an accident which required a week's hospitalization.
Although FRANCISCO paid for part of the hospitalization expenses, her mother
shouldered most of them. In 1963, she enrolled at the University of San Agustin,
where she stayed with Mrs. Franco who paid for MONINA's tuition fees.
However, expenses for books, school supplies, uniforms and the like were
shouldered by FRANCISCO. At the start of each semester, MONINA would
show FRANCISCO that she was enrolled, then he would ask her to canvass
prices, then give her the money she needed. After finishing two (2) semesters at
University of San Agustin, as evidenced by her transcript of records (Exh. Z
showing that FRANCISCO was listed as Parent/Guardian [Exh. Z-1]), she
transferred to De Paul College, just in front of Mrs. Francos house, and studied
there for a year. Thereafter, MONINA enrolled at Western Institute of
Technology (WIT), where she obtained a bachelors degree in Commerce in April
1967. During her senior year, she stayed with Eusebio and Danthea Lopez at
Hotel Kahirup, owned by said couple. She passed the CPA board exams in 1974,
and took up an M.B.A. at De La Salle University as evidenced by her transcript
(Exh. AA), wherein FRANCISCO was likewise listed as Guardian (Exhs. AA-1
and AA-2).
MONINA enumerated the different members of the household staff at Nelly
Garden, to wit: Luz, the household cook; the houseboys Silvestre and Doming;
the housemaid Natang; the yaya of the adopted triplets, Deling;
the yaya of Lolo Vicente, Adelina; and others. MONINA likewise enumerated
the members of the office staff (Messrs. Baylosis, Lagarto, Tingson, Diasnes,
Jalandoni, Supertisioso, Doroy, and others), and identified them from a
photograph marked as Exhibit X-2. She then corroborated the prior testimony
regarding her employment at Merchant Financing Co., and her having lived at
Hotel Kahirup and at Mrs. Cuaycongs residence in Bacolod City, while working
at the hospital owned by Mrs. Cuaycong.
MONINA further testified that in March 1968, she went to Manila and met
FRANCISCO at Elena Apartments at the corner of Romero and Salas Streets,
Ermita. She told FRANCISCO that she was going for a vacation in Baguio City
with Mrs. Francos mother, with whom she stayed up to June 1968. Upon her
return from Baguio City, MONINA told FRANCISCO that she wanted to work,
so the latter arranged for her employment at Miller & Cruz in Bacolod City.
MONINA went to Bacolod City, was interviewed by Mr. Jose Cruz, a partner at
Miller & Cruz, who told her she would start working first week of
September, sans examination. She resigned from Miller & Cruz in 1971 and lived
with Mrs. Cuaycong at her Forbes Park residence in Makati. MONINA went to
see FRANCISCO, told him that she resigned and asked him for money to go to
Spain, but FRANCISCO refused as she could not speak Spanish and would not
be able find a job. The two quarreled and FRANCISCO ordered a helper to send
MONINA out of the house. In the process, MONINA broke many glasses at the
pantry and cut her hand, after which, FRANCISCO hugged her, gave her
medicine, calmed her down, asked her to return to Bacolod City and promised
that he would give her the money.
MONINA returned to Bacolod City by plane, using a Filipinas Orient Airways
plane ticket (Exh. M) which FRANCISCO gave. She called Mr. Cruz, then Atty.
Tirol, as instructed by Mr. Cruz. These calls were evidenced by PLDT long
distance toll cards (Exhs. G to L), with annotations at the back reading: charged
and paid under the name of Frank L. Jison and were signed by Arsenio Duatin
(Exhs. G-1 to L-1). PLDT issued a certification as to the veracity of the contents
of the toll cards (Exh. BB). Likewise introduced in evidence was a letter of
introduction prepared by Mr. Cruz addressed to Atty. Tirol, on MONINA's behalf
(Exh. N).
MONINA also declared that Atty. Tirol then told her that she would have to go
to Iloilo and sign a certain affidavit, before Mr. Cruz would turn over the money
promised by FRANCISCO. She went to Atty. Tirols office in Iloilo, but after
going over the draft of the affidavit, refused to sign it as it stated that she was not
FRANCISCOs daughter. She explained that all she had agreed with
FRANCISCO was that he would pay for her fare to go abroad, and that since she
was a little girl, she knew about her illegitimacy. She started crying, begged Atty.
Tirol to change the affidavit, to which Atty. Tirol responded that he was also a
father and did not want this to happen to his children as they could not be blamed
for being brought into the world. She then wrote a letter (Exh. O) to FRANCISCO
and sent it to the latters Forbes Park residence (Bauhinia Place) by JRS courier
service (Exhs. O-5 to O-7). MONINA subsequently met FRANCISCO in
Bacolod City where they discussed the affidavit which she refused to sign.
FRANCISCO told her that the affidavit was for his wife, that in case she heard
about MONINA going abroad, the affidavit would keep her peace.
MONINA then narrated that the first time she went to Atty. Tirols office, she was
accompanied by one Atty. Fernando Divinagracia, who advised her that the
affidavit (Exh. P)11 would boomerang against FRANCISCO as it is contrary to
law. MONINA returned to Bacolod City, then met with Atty. Tirol once more to
reiterate her plea, but Atty. Tirol did not relent. Thus, on the morning of 20 or 21
September 1971, she signed the affidavit as she was jobless and needed the
money to support herself and finish her studies. In exchange for signing the
document, MONINA received a Bank of Asia check for P15,000.00 (Exh. Q),
which was less than the P25,000.00 which FRANCISCO allegedly promised to
give. As Atty. Tirol seemed hesitant to give her a copy of the affidavit after
notarizing it, MONINA merely grabbed a copy and immediately left.
MONINA then prepared to travel abroad, for which purpose, she procured letters
of introduction (Exhs. S and T) from a cousin, Mike Alano (son of FRANCISCOs
elder sister Luisa); and an uncle, Emilio Jison (FRANCISCOs elder brother),
addressed to another cousin, Beth Jison (Emilios daughter), for Beth to assist
MONINA. Exhibit S contained a statement (Exh. S-1) expressly recognizing that
MONINA was FRANCISCOs daughter. Ultimately though, MONINA decided
not to go abroad, opting instead to spend the proceeds of the P15,000.00 check
for her CPA review, board exam and graduate studies. After finishing her
graduate studies, she again planned to travel abroad, for which reason, she
obtained a letter of introduction from former Vice President Fernando Lopez
addressed to then United States Consul Vernon McAnnich (Exh. V).
As to other acts tending to show her filiation, MONINA related that on one
occasion, as FRANCISCOs wife was going to arrive at the latters Bacolod City
residence, FRANCISCO called Arsenio Duatin and instructed Arsenio to hide
MONINA. Thus, MONINA stayed with Mrs. Luisa Jison for the duration of the
stay of FRANCISCOs wife. MONINA also claimed that she knew Vice President
Fernando Lopez and his wife, Mariquit, even before starting to go to school.
Thus, MONINA asked for a recommendation letter (Exh. U) from Mrs. Mariquit
Lopez for possible employment with Mrs. Rosario Lopez Cooper, another second
cousin of FRANCISCO. In Exhibit U, Mrs. Lopez expressly recognized
MONINA as FRANCISCOs daughter. As additional proof of her close
relationship with the family of Vice President Lopez, MONINA identified
photographs taken at a birthday celebration on 14 April 1985.
MONINA finally claimed that she knew the three (3) children of FRANCISCO
by wife, namely, Lourdes, Francisco, Jr. (Junior) and Elena, but MONINA had
met only Lourdes and Junior. MONINA's testimony dealt lengthily on her
dealings with Junior and the two (2) occasions when she met with Lourdes. The
last time MONINA saw FRANCISCO was in March 1979, when she sought his
blessings to get married.
In his defense, FRANCISCO offered his deposition taken before then Judge
Romeo Callejo of the Regional Trial Court of Manila, Branch 48. As additional
witnesses, FRANCISCO presented Nonito Jalandoni, Teodoro Zulla, Iigo
Supertisioso, Lourdes Ledesma, Jose Cruz and Dolores Argenal.
FRANCISCO declared that Pansays employment ceased as of October, 1944,
and that while employed by him, Pansay would sleep with the other female
helpers on the first floor of his residence, while he, his wife and daughter slept in
a room on the second floor. At that time, his household staff was composed of
three (3) female workers and two (2) male workers. After Pansayleft in October
1944, she never communicated with him again, neither did he know of her
whereabouts. FRANCISCO staunchly denied having had sexual relations
with Pansay and disavowed any knowledge about MONINAs birth. In the same
vein, he denied having paid for MONINAs tuition fees, in person or otherwise,
and asserted that he never knew that Mr. Lagarto paid for these fees. Moreover,
FRANCISCO could not believe that Lagarto would pay for these fees despite
absence of instructions or approval from FRANCISCO. He likewise categorically
denied that he told anyone, be it Danthea Lopez, Zafiro Ledesma, Concha
Cuaycong or Remedios Franco, that MONINA was his daughter.
FRANCISCO also disclosed that upon his return from the United States in 1971,
he fired Alfredo Baylosis upon discovering that Alfredo had taken advantage of
his position during the formers absence. FRANCISCO likewise fired Rudy
Tingson and Romeo Bilbao, but did not give the reasons therefor.
Finally, FRANCISCO denied knowledge of MONINAs long distance calls from
his Bacolod residence; nevertheless, when he subsequently discovered this, he
fired certain people in his office for their failure to report this anomaly. As regards
the caretaker of his Bacolod residence, FRANCISCO explained that since
MONINA lived at Mrs. Cuaycongs residence, the caretaker thought that he could
allow people who lived at the Cuaycong residence to use the facilities at his
(FRANCISCOs) house.
Nonito Jalandoni, bookkeeper and paymaster at Nellys Garden from 1963 up to
1974, then from 1980 up to 1986, the assistant overseer of Hacienda Lopez,
testified that he did not know MONINA; that he learned of her only in June 1988,
when he was informed by FRANCISCO that MONINA had sued him; and that
he never saw MONINA at Nellys Garden, neither did he know of any instructions
for anyone at Nellys Garden to give money to MONINA.
Teodoro Zulla, FRANCISCOs bookkeeper and paymaster from 1951 up to 1986,
testified that FRANCISCO dismissed Alfredo Baylosis due to certain unspecified
discrepancies; and that he never saw MONINA receive funds from either Mr.
Lagarto or Mr. Baylosis. Upon questions from the trial court, however, Teodoro
admitted that he prepared vouchers for only one of FRANCISCOs haciendas, and
not vouchers pertaining to the latters personal expenses.
Iigo Supertisioso testified that he worked for FRANCISCO at Nellys Garden
from 1964 up to 1984 as a field inspector, paymaster, cashier and, eventually,
officer-in-charge (OIC). He confirmed Alfredo Baylosis dismissal due to these
unspecified irregularities, then denied that FRANCISCO ever ordered that
MONINA be given her allowance. Likewise, Iigo never heard FRANCISCO
mention that MONINA was his (FRANCISCOs) daughter.
Lourdes Ledesma, FRANCISCOs daughter, testified that she saw (but did not
know) MONINA at the Our Lady of Mercy Hospital, on the occasion of the birth
of Lourdes first son, Mark. Over lunch one day, Lourdes aunt casually introduced
Lourdes and MONINA to each other, but they were referred to only by their first
names. Then sometime in 1983 or 1984, MONINA allegedly went to Lourdes
house in Sta. Clara Subdivision requesting for a letter of introduction or referral
as MONINA was then job-hunting. However, Lourdes did not comply with the
request.
Jose Cruz, a partner at Miller, Cruz & Co., testified that MONINA worked at
Miller & Cruz from 1968 up to 1971, however, he did not personally interview
her before she was accepted for employment. Moreover, MONINA underwent
the usual screening procedure before being hired. Jose recalled that one of the
accountants, a certain Mr. Atienza, reported that MONINA claimed to be
FRANCISCOs daughter. Jose then told Mr. Atienza to speak with MONINA and
see if he (Mr. Atienza) could stop her from spreading this rumor. Mr. Atienza
reported that he spoke with MONINA, who told him that she planned to leave for
the United States and needed P20,000.00 for that purpose, and in exchange, she
would sign a document disclaiming filiation with FRANCISCO. Thus, Jose
instructed Mr. Atienza to request that MONINA meet with Jose, and at that
meeting, MONINA confirmed Mr. Atienzas report. Jose then informed Atty.
Tirol, FRANCISCOs personal lawyer, about the matter.
Atty. Tirol told Jose to send MONINA and her lawyer to his (Atty. Tirols) office
in Iloilo. Jose then wrote out a letter of introduction for MONINA addressed to
Atty. Tirol. Jose relayed Atty. Tirols message to MONINA through Mr. Atienza,
then later, Atty. Tirol told Jose to go to Iloilo with a check for P15,000.00. Jose
complied, and at Atty. Tirols office, Jose saw MONINA, Atty. Tirol and his
secretary reading some documents. MONINA then expressed her willingness to
sign the document, sans revisions. Jose alleged that he drew the P15,000.00 from
his personal funds, subject to reimbursement from and due to an understanding
with FRANCISCO.
Dolores Argenal, a househelper at Nelly Garden from May 1944 up to May 1946,
testified that she knew that Pansay was Lourdes nanny; that Lourdes slept in her
parents room; that she had not seen FRANCISCO give special treatment
to Pansay; that there was no unusual relationship between FRANCISCO
and Pansay, and if there was any, Dolores would have easily detected it since she
slept in the same room as Pansay. Dolores further declared that whenever
FRANCISCOs wife was out of town, Pansay would bring Lourdes downstairs at
nighttime, and that Pansay would not sleep in the room where FRANCISCO
slept. Finally, Dolores declared that Pansay stopped working for FRANCISCO
and his wife in October, 1944.
The reception of evidence having been concluded, the parties filed their
respective memoranda.
It need be recalled that Judge Catalino Castaeda, Jr. presided over trial up to 21
October 1986, thereby hearing only the testimonies of MONINAs witnesses and
about half of MONINAs testimony on direct examination. Judge Norberto E.
Devera, Jr. heard the rest of MONINA's testimony and those of FRANCISCOs
witnesses.
In its decision of 12 November 199012 the trial court, through Judge Devera,
dismissed the complaint with costs against MONINA. In the opening paragraph
thereof, it observed:
This is a complaint for recognition of an illegitimate child instituted by plaintiff
Monina Jison against defendant Francisco Jison. This complaint was filed on
March 13, 1985 at the time when plaintiff, reckoned from her death of birth, was
already thirty-nine years old. Noteworthy also is the fact that it was instituted
twenty years after the death of plaintiffs mother, Esperanza Amolar. For the years
between plaintiffs birth and Esperanzas death, no action of any kind was
instituted against defendant either by plaintiff, her mother Esperanza or the latters
parents. Neither had plaintiff brought such an action against defendant
immediately upon her mothers death on April 20, 1965, considering that she was
then already nineteen years old or, within a reasonable time thereafter. Twenty
years more had to supervene before this complaint was eventually instituted.
The trial court then proceeded to discuss the four issues stipulated at pre-trial,
without, however, summarizing the testimonies of the witnesses nor referring to
the testimonies of the witnesses other than those mentioned in the discussion of
the issues.
The trial court resolved the first issue in the negative, holding that it was
improbable for witness Lope Amolar to have noticed that Pansay was pregnant
upon seeing her at the Elena Apartments in November 1945, since Pansay was
then only in her first month of pregnancy; that there was no positive assertion that
copulation did indeed take place between Francisco and Esperanza; and that
MONINAs attempt to show opportunity on the part of FRANCISCO failed to
consider that there was also the opportunity for copulation between Esperanza
and one of the several domestic helpers admittedly also residing at Nellys Garden
at that time. The RTC also ruled that the probative value of the birth and
baptismal certificates of MONINA paled in light of jurisprudence, especially
when the misspellings therein were considered.
The trial court likewise resolved the second issue in the negative, finding that
MONINAs evidence thereon may either be one of three categories, namely:
hearsay evidence, incredulous evidence, or self-serving evidence." To the first
category belonged the testimonies of Adela Casabuena and Alfredo Baylosis,
whose knowledge of MONINAs filiation was based, as to the former, on
utterances of defendants wife Lilia and Esperanza allegedly during the heat of
their quarrel, while as to the latter, Alfredo's conclusion was based from the
rumors going [around] that plaintiff is defendants daughter, from his personal
observation of plaintiffs facial appearance which he compared with that of
defendants and from the way the two (plaintiff and defendant) acted and treated
each other on one occasion that he had then opportunity to closely observe them
together. To the second category belonged that of Dominador Savariz, as:
At each precise time that Esperanza allegedly visited Nellys Garden and allegedly
on those occasions when defendants wife, Lilia was in Manila, this witness was
there and allegedly heard pieces of conversation between defendant and
Esperanza related to the paternity of the latters child. xxx
The RTC then placed MONINAs testimony regarding the acts of recognition
accorded her by FRANCISCOs relatives under the third category, since the latter
were never presented as witnesses, for which reason the trial court excluded the
letters from FRANCISCOs relatives (Exhs. S to V).
As to the third issue, the trial court held that MONINA was not barred by
prescription for it was of the perception that the benefits of Article 268 accorded
to legitimate children may be availed of or extended to illegitimate children in
the same manner as the Family Code has so provided; or by laches, which is [a]
creation of equity applied only to bring equitable results, and addressed to the
sound discretion of the court [and] the circumstances [here] would show that
whether plaintiff filed this case immediately upon the death of her mother
Esperanza in 1965 or twenty years thereafter in 1985, xxx there seems to be no
inequitable result to defendant as related to the situation of plaintiff.
The RTC ruled, however, that MONINA was barred by estoppel by deed because
of the affidavit (Exh. P/Exh. 2) which she signed when she was already twenty-
five years, a professional and under the able guidance of counsel.
Finally, the RTC denied FRANCISCOs claim for damages, finding that
MONINA did not file the complaint with malice, she having been propelled by
an honest belief, founded on probable cause.
MONINA seasonably appealed to the Court of Appeals (CA-G.R. CV No. 32860)
and sought reversal of the trial courts decision on the grounds that:
I Court of Appeals rejected the certifications issued by the Local Civil Registrar of
THE TRIAL COURT WAS ERRONEOUSLY PREDISPOSED TO ADJUDGE
THIS CASE AGAINST APPELLANT DUE TO ITS MISPERCEPTION THAT
APPELLANTS DELAY IN FILING HER COMPLAINT WAS FATAL TO
HER CASE.
II
THE TRIAL COURT ERRED IN ITS REJECTION OF THE TESTIMONIES
OF APPELLANTS WITNESSES AS TAILOR-MADE, INADEQUATE AND
INCREDIBLE.
III
THE TRIAL COURT ERRED IN ITS REJECTION OF THE ADMISSIBILITY
OF THE CERTIFIED COPIES OF PUBLIC DOCUMENTS PRESENTED BY
APPELLANT AS PART OF HER EVIDENCE.
IV
THE TRIAL COURT ERRED IN ITS REQUIREMENT THAT A WITNESS
TO THE ACTUAL ACT OF COPULATION BETWEEN THE APPELLEE
AND APPELLANTS MOTHER SHOULD HAVE POSITIVELY TESTIFIED
TO SAID EFFECT.
V Apparently, the trial court paid more emphasis on the date mentioned by Lope
THE TRIAL COURT ERRED IN REJECTING THE ADMISSIBILITY OF
THE DULY IDENTIFIED NOTES AND LETTER OF THE RELATIVES OF
THE APPELLEE AS HEARSAY.
VI
THE TRIAL COURT ERRED IN CONCLUDING THAT APPELLANTS
AFFIDAVIT (EXH. P) SERVED AS A BAR AGAINST HER CLAIM FOR
RECOGNITION INSTEAD OF REINFORCING SAID CLAIM. 13
Expectedly, FRANCISCO refuted these alleged errors in his Appellees
Brief.14cräläwvirtualibräry
In its decision of 27 April 1995,15 the Court of Appeals initially declared that as
no vested or acquired rights were affected, the instant case was governed by
Article 175, in relation to Articles 172 and 173, of the Family Code.16 While the
Dingle, Iloilo (Exhs. E and F) as FRANCISCO did not sign them, said court
focused its discussion on the other means by which illegitimate filiation could be
proved, i.e., the open and continuous possession of the status of an illegitimate
child or, by any other means allowed by the Rules of Court and special laws, such
as the baptismal certificate of the child, a judicial admission, a family bible
wherein the name of the child is entered, common reputation respecting pedigree,
admission by silence, testimonies of witnesses xxx.17 To the Court of Appeals,
the bottom line issue was whether or not MONINA established her filiation as
FRANCISCOs illegitimate daughter by preponderance of evidence, as to which
issue said court found:
[N]ot just preponderant but overwhelming evidence on record to prove that
[MONINA] is the illegitimate daughter of [FRANCISCO] and that she had
continuously enjoyed such status by direct acts of [FRANCISCO] and/or his
relatives.
In so ruling, the Court of Appeals observed that the testimonies of Lope Amolar,
Adela Casabuena and Dominador Savariz were already sufficient to establish
MONINAs filiation:
As adverted to earlier, the trial court discredited Lope Amolars testimony by
saying that Lope could not have detected Esperanzas pregnant state in November,
1945 since at that point in time [sic] she was still in the initial stage of pregnancy.
Amolar than on the tenor and import of his testimony. As xxx Lope xxx was
asked about an incident that transpired more than 41 years back, [u]nder the
circumstances, it is unreasonable to expect that Lope could still be dead right on
the specific month in 1945 that [he] met and confronted his sister. At any rate,
what is important is not the month that they met but the essence of his testimony
that his sister pointed to their employer [FRANCISCO] as the one responsible
for her pregnancy, and that upon being confronted, [FRANCISCO] assured him
of support for Esperanza and their child. It would appear then that in an attempt
to find fault with Lopes testimony, the trial court has fallen oblivious to the fact
that even [FRANCISCO], in his deposition, did not deny that he was confronted
by Lope about what he had done to Esperanza, during which he unequivocally
acknowledged paternity by assuring Lope of support for both Esperanza and their
child.
The Court of Appelas further noted that Casabuena and Savariz testified on
something that they personally observed or witnessed, which matters
FRANCISCO did not deny or refute. Finally, said court aptly held:
Taking into account all the foregoing uncontroverted testimonies xxx let alone
such circumstantial evidence as [MONINAs] Birth Certificates xxx and
Baptismal Certificates which invariably bear the name of [FRANCISCO] as her
father, We cannot go along with the trial courts theory that [MONINAs]
illegitimate filiation has not been satisfactorily established.
xxx
Significantly, [MONINAs] testimony finds ample corroboration from
[FRANCISCOs] former employees, Arsenio Duatin, Rudy Tingson and Alfredo
Baylosis. xxx
xxx
Carefully evaluating appellants evidence on her enjoyment of the status of an
illegitimate daughter of [FRANCISCO] vis-a-vis [FRANCISCOs] controversion
thereof, We find more weight in the former. The positive testimonies of
[MONINA] and [her] witnesses xxx all bearing on [FRANCISCOs] acts and/or
conduct indubitably showing that he had continuously acknowledged
[MONINA] as his illegitimate daughter have not been succeessfully [sic] refuted.
In fact, [FRANCISCO] himself, in his deposition, only casually dismissed
[MONINAs] exhaustive and detailed testimony as untrue, and with respect to
those given by [MONINAs] witnesses, he merely explained that he had fired
[them] from their employment. Needless to state, [FRANCISCOs] vague denial
is grossly inadequate to overcome the probative weight of [MONINAs]
testimonial evidence.
Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court
xxx does not hold sway in the face of [MONINAs] logical explanation that she
at first did agree to sign the affidavit which contained untruthful statements. In
fact, she promptly complained to [FRANCISCO] who, however explained to her
that the affidavit was only for the consumption of his spouse xxx. Further, the
testimony of Jose Cruz concerning the events that led to the execution of the
affidavit xxx could not have been true, for as pointed out by [MONINA], she
signed the affidavit xxx almost five months after she had resigned from the
Miller, Cruz & Co. xxx
At any rate, if [MONINA] were not his illegitimate daughter, it would have been
uncalled for, if not absurd, for [FRANCISCO] or his lawyer to have secured
[MONINAs] sworn statement xxx On the contrary, in asking [MONINA] to sign
the said affidavit at the cost of P15,000, [FRANCISCO] clearly betrayed his
intention to conceal or suppress his paternity of [MONINA]. xxx
In fine, We hold that [MONINAs] filiation as [FRANCISCOs] illegitimate
daughter has been conclusively established by the uncontroverted testimonies of
Lope Amolar, Adela Casabuena and Dominador Savariz to the effect that
appellee himself had admitted his paternity of the appellee, and also by the
testimonies of appellant, Arsenio Duatin, Romeo Bilbao, Rudy Tingson and
Alfredo Baylosis unerringly demonstrating that by his own conduct or overt acts
like sending appellant to school, paying for her tuition fees, school uniforms,
books, board and lodging at the Colegio del Sagrado Corazon de Jesus, defraying
appellants hospitalization expenses, providing her with [a] monthly allowance,
paying for the funeral expenses of appellants mother, acknowledging appellants
paternal greetings and calling appellant his Hija or child, instructing his office
personnel to give appellants monthly allowance, recommending appellant for
employment at the Miller, Cruz & Co., allowing appellant to use his house in
Bacolod and paying for her long distance telephone calls, having appellant spend
her vacation in his apartment in Manila and also at his Forbes residence, allowing
appellant to use his surname in her scholastic and other records (Exhs Z, AA,
AA-1 to AA-5, W & W-5), appellee had continuously recognized appellant as his
illegitimate daughter. Added to these are the acts of [FRANCISCOs] relatives
acknowledging or treating [MONINA] as [FRANCISCOs] daughter (Exh U) or
as their relative (Exhs T & V). On this point, witness Zafiro Ledesma, former
Mayor of Iloilo City, whose spouse belongs to the Lopez clan just like
[FRANCISCO], testified that [MONINA] has been considered by the Lopezes as
a relative. He identified pictures of the appellee in the company of the Lopezes
(Exhs X-16 & X-17). Another witness, Danthea H. Lopez, whose husband
Eusebio Lopez is appellees first cousin, testified that appellant was introduced to
her by appellees cousin, Remedios Lopez Franco, as the daughter of appellee
Francisco Jison, for which reason, she took her in as [a] secretary in the
Merchants Financing Corporation of which she was the manager, and further
allowed her to stay with her family free of board and lodging. Still on this aspect,
Dominador Savariz declared that sometime in February, 1966 appellees relative,
Ms. Remedios Lopez Franco pointed to appellant as the daughter of appellee
Francisco Jison.
Finally, the Certifications of the Local Civil Registrar of Dingle (Exhs E and F)
as well as [MONINAs] Baptismal Certificates (Exhs C & D) which the trial ocurt
admitted in evidence as part of [MONINAs] testimony, may serve as
circumstantial evidence to further reinforce [MONINAs] claim that she is
[FRANCISCOs] illegitimate daughter by Esperanza Amolar.
True it is that a trial judges assessment of the credibility of witnesses is accorded
great respect on appeal. But the rule admits of certain exceptions. One such
exception is where the judge who rendered the judgment was not the one who
heard the witnesses testify. [citations omitted] The other is where the trial court
had overlooked, misunderstood or misappreciated some facts or circumstances of
weight and substance which, if properly considered, might affect the result of the
case. [citations omitted] In the present case, both exceptions obtain. All of
[MONINAs] witnesses xxx whose testimonies were not given credence did not
testify before the judge who rendered the disputed judgment. xxx
The Court of Appeals then decreed:
WHEREFORE, premises considered, the judgment of the trial court is SET
ASIDE and another one is hereby entered for appellant Monina Jison, declaring
her as the illegitimate daughter of appellee Francisco Jison, and entitled to all
rights and privileges granted by law.
Costs against appellee.
SO ORDERED.
His motion for reconsideration having been denied by the Court of Appeals in its
resolution of 29 March 1996,18 FRANCISCO filed the instant petition. He urges
us to reverse the judgment of the Court of Appeals, alleging that said court
committed errors of law:
I.
IN REVERSING THE DECISION OF THE TRIAL COURT AND
DECLARING PRIVATE RESPONDENT AS THE ILLEGITIMATE CHILD
OF PETITIONER, CONSIDERING [THE] IMPOSSIBILITY OF SEXUAL
CONTACT BETWEEN THE PETITIONER AND THE PRIVATE
RESPONDENT'S MOTHER AT THE TIME CONCEPTION WAS SUPPOSED
TO HAVE OCCURRED.
II.
IN REVERSING THE TRIAL COURTS FINDING CONSIDERING THAT
PRIVATE RESPONDENT'S TESTIMONIAL EVIDENCE OF PATERNITY
AND FILIATION IS NOT CLEAR AND CONVINCING.
III.
IN GIVING CREDENCE TO DOCUMENTARY EVIDENCE PRESENTED
BY THE PRIVATE RESPONDENT AS EVIDENCE OF FILIATION
CONSIDERING THAT THE SAME ARE HEARSAY, SELF-SERVING AND
CANNOT BIND THE PETITIONER UNDER THE BASIC RULES OF
EVIDENCE.
IV.
IN INTERPRETING THE PRIVATE RESPONDENT'S SWORN
STATEMENT (EXH. P/EXH. 2) IN A MANNER NOT IN CONSONANCE
WITH THE RULINGS OF THE HONORABLE SUPREME COURT.
V.
IN NOT CONSIDERING THE LONG AND UNEXPLAINED DELAY IN THE
FILING OF THE PRESENT PATERNITY SUIT AS EQUIVALENT TO
LACHES.
As regards the first error, FRANCISCO insists that taking into account the second
paragraph of MONINAs complaint wherein she claimed that he and Pansay had
sexual relations by about the end of 1945 or the start of 1946, it was physically
impossible for him and Pansay to have had sexual contact which resulted in
MONINAs birth, considering that:
The normal period of human pregnancy is nine (9) months. If as claimed by
private respondent in her complaint that her mother was impregnated by
FRANCISCO at the end of 1945 or the start of 1946, she would have been born
sometime in late September or early October and not August 6, 1946 xxx. The
instant case finds factual and legal parallels in Constantino vs. Mendez,19 thus:
xxx
FRANCISCO further claims that his testimony that Pansay was no longer
employed by him at the time in question was unrebutted, moreover, other men
had access to Pansay during the time of or even after her employment by him.
As to the second error, FRANCISCO submits that MONINAs testimonial
evidence is shaky, contradictory and unreliable, and proceeds to attack the
credibility of her witnesses by claiming, in the main, that: (a) Lope Amolar could
not have detected Pansays pregnancy in November 1945 when they met since
she would have been only one (1) month pregnant then; (b) Dominador Savariz
did not in fact witness the meeting between FRANCISCO, Pansay and
MONINA; (c) Zafiro Ledesma had an ulterior motive in testifying for MONINA
as he owned a bank in Iloilo which was then under Central Bank supervision and
MONINA was the Bank Examiner assigned to Iloilo; and (d) Danthea Lopez was
not related to him by blood and whatever favorable treatment MONINA received
from Danthea was due to the formers employment at Merchants Financing
Company and additional services rendered at Kahirup Hotel; besides, Danthea
admitted that she had no personal knowledge as to the issue of paternity and
filiation of the contending parties, hence Sections 39 and 4020 of Rule 130 of the
Rules of Court did not come into play. FRANCISCO likewise re-echoes the view
of the trial court as regards the testimonies of Adela Casabuena and Alfredo
Baylosis.
FRANCISCO further asserts that MONINAs testimony that he answered for her
schooling was self-serving and uncorroborated by any receipt or other
documentary evidence; and assuming he did, such should be interpreted as a
manifestation of kindness shown towards the family of a former household
helper.
Anent the treatment given by his relatives to MONINA as his daughter,
FRANCISCO points to the fact that Pansay was the former laundrywoman of
Mrs. Franco; MONINA resided with the families of Eusebio Lopez and Concha
Cuaycong because she was in their employ at Kahirup Hotel and Our Lady of
Mercy Hospital, respectively; MONINA failed to present Mrs. Franco, Eusebio
Lopez and Mrs. Cuaycong; and MONINAs employment at the accounting firm
of Miller, Cruz & Co. was attributable to her educational attainment, there being
absolutely no evidence to prove that FRANCISCO ever facilitated her
employment thereat. Hence, in light of Baluyot v. Baluyot,21 the quantum of
evidence to prove paternity by clear and convincing evidence, not merely a
preponderance thereof, was not met.
With respect to the third assigned error, FRANCISCO argues that the Court of
Appeals reliance on the certifications of the Local Civil Registrar (Exhs. E and
F) and Baptismal Certificates (Exhs. C and D) as circumstantial evidence is
misplaced. First, their genuineness could not be ascertained as the persons who
issued them did not testify. Second, in light of Reyes v. Court of Appeals,22 the
contents of the baptismal certificates were hearsay, as the data was based only on
what was told to the priest who solemnized the baptism, who likewise was not
presented as a witness. Additionally, the name of the father appearing therein was
Franque Jison, which was not FRANCISCOs name. Third, in both Exhibits E and
F, the names of the childs parents were listed as Frank Heson and Esperanza
Amador (not Amolar). FRANCISCO further points out that in Exhibit F, the
status of the child is listed as legitimate, while the fathers occupation as laborer.
Most importantly, there was no showing that FRANCISCO signed Exhibits E
and F or that he was the one who reported the childs birth to the Office of the
Local Civil Registrar. As to MONINAs educational records, FRANCISCO
invokes Baas v. Baas23 which recognized that school records are prepared by
school authorities, not by putative parents, thus incompetent to prove paternity.
And, as to the photographs presented by MONINA, FRANCISCO cites Colorado
v. Court of Appeals,24 and further asserts that MONINA did not present any of
the persons with whom she is seen in the pictures to testify thereon; besides these
persons were, at best, mere second cousins of FRANCISCO. He likewise assails
the various notes and letters written by his relatives (Exhs. S to V) as they were
not identified by the authors. Finally, he stresses that MONINA did not testify as
to the telephone cards (Exhs. G to L) nor did these reveal the circumstances
surrounding the calls she made from his residence.
Anent the fourth assigned error, FRANCISCO contends that the Court of Appeals
interpretation of MONINAs affidavit of 21 September 1971 ran counter to
Dequito v. Llamas,25 and overlooked that at the time of execution, MONINA was
more than 25 years old and assisted by counsel.
As to the last assigned error, FRANCISCO bewails the Court of Appeals failure
to consider the long and unexplained delay in the filing of the case.
In her comment, MONINA forcefully refuted FRANCISCOs arguments, leading
FRANCISCO to file his reply thereto.
On 20 November 1996, we gave due course to this petition and required the
parties to submit their respective memoranda, which they subsequently did.
A painstaking review of the evidence and arguments fails to support petitioner.
Before addressing the merits of the controversy, we first dispose of preliminary
matters relating to the applicable law and the guiding principles in paternity suits.
As to the former, plainly, the Family Code of the Philippines (Executive Order
No. 209) governs the present controversy. As correctly cited by the Court of
Appeals, Uyguangco26 served as a judicial confirmation of Article 256 of the
Family Code27 regarding its retroactive effect unless there be impairment of
vested rights, which does not hold true here, it appearing that neither the putative
parent nor the child has passed away and the former having actually resisted the
latters claim below.
Under Article 175 of the Family Code, illegitimate filiation, such as MONINA's,
may be established in the same way and on the same evidence as that of legitimate
children. Article 172 thereof provides the various forms of evidence by which
legitimate filiation is established, thus:
ART. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved
by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
This Article reproduces, with amendments, Articles 265, 266 and 267 of the Civil
Code.
For the success of an action to establish illegitimate filiation under the second
paragraph, which MONINA relies upon given that she has none of the evidence
mentioned in the first paragraph, a high standard of proof28 is required.
Specifically, to prove open and continuous possession of the status of an
illegitimate child, there must be evidence of the manifestation of the permanent
intention of the supposed father to consider the child as his, by continuous and
clear manifestations of parental affection and care, which cannot be attributed to
pure charity. Such acts must be of such a nature that they reveal not only the
conviction of paternity, but also the apparent desire to have and treat the child as
such in all relations in society and in life, not accidentally, but
continuously.29cräläwvirtualibräry
By continuous is meant uninterrupted and consistent, but does not require any
particular length of time.30
The foregoing standard of proof required to establish ones filiation is founded on
the principle that an order for recognition and support may create an
unwholesome atmosphere or may be an irritant in the family or lives of the
parties, so that it must be issued only if paternity or filiation is established by
clear and convincing evidence.31
The foregoing discussion, however, must be situated within the general rules on
evidence, in light of the burden of proof in civil cases, i.e., preponderance of
evidence, and the shifting of the burden of evidence in such cases. Simply put, he
who alleges the affirmative of the issue has the burden of proof, and upon the
plaintiff in a civil case, the burden of proof never parts. However, in the course
of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the
duty or the burden of evidence shifts to defendant to controvert plaintiffs prima
facie case, otherwise, a verdict must be returned in favor of plaintiff. Moreover,
in civil cases, the party having the burden of proof must produce a preponderance
of evidence thereon, with plaintiff having to rely on the strength of his own
evidence and not upon the weakness of the defendants. The concept of
preponderance of evidence refers to evidence which is of greater weight, or more
convincing, that which is offered in opposition to it; at bottom, it means
probability of truth.32
With these in mind, we now proceed to resolve the merits of the instant
controversy.
FRANCISCOs arguments in support of his first assigned error deserve scant
consideration. While it has been observed that unlawful intercourse will not be
presumed merely from proof of an opportunity for such indulgence, 33 this does
not favor FRANCISCO. Akin to the crime of rape where, in most instances, the
only witnesses to the felony are the participants in the sexual act themselves, in
deciding paternity suits, the issue of whether sexual intercourse actually occurred
inevitably redounds to the victims or mothers word, as against the accuseds or
putative fathers protestations. In the instant case, MONINAs mother could no
longer testify as to the fact of intercourse, as she had, unfortunately, passed away
long before the institution of the complaint for recognition. But this did not mean
that MONINA could no longer prove her filiation. The fact of her birth and her
parentage may be established by evidence other than the testimony of her mother.
The paramount question then is whether MONINAs evidence is coherent, logical
and natural.34cräläwvirtualibräry
The complaint stated that FRANCISCO had carnal knowledge of Pansay by
about the end of 1945. We agree with MONINA that this was broad enough to
cover the fourth quarter of said year, hence her birth on 6 August 1946 could still
be attributed to sexual relations between FRANCISCO and MONINAs mother.
In any event, since it was established that her mother was still in the employ of
FRANCISCO at the time MONINA was conceived as determined by the date of
her birth, sexual contact between FRANCISCO and MONINAs mother was not
at all impossible, especially in light of the overwhelming evidence, as hereafter
shown, that FRANCISCO fathered MONINA, has recognized her as his daughter
and that MONINA has been enjoying the open and continuous possession of the
status as FRANCISCOs illegitimate daughter.
We readily conclude that the testimonial evidence offered by MONINA, woven
by her narration of circumstances and events that occurred through the years,
concerning her relationship with FRANCISCO, coupled with the testimonies of
her witnesses, overwhelmingly established the following facts:
1) FRANCISCO is MONINAs father and she was conceived at the time when
her mother was in the employ of the former;
2) FRANCISCO recognized MONINA as his child through his overt acts and
conduct which the Court of Appeals took pains to enumerate, thus:
[L]ike sending appellant to school, paying for her tuition fees, school uniforms,
books, board and lodging at the Colegio del Sagrado de Jesus, defraying
appellants hospitalization expenses, providing her with [a] monthly allowance,
paying for the funeral expenses of appellants mother, acknowledging appellants
paternal greetings and calling appellant his Hija or child, instructing his office
personnel to give appellants monthly allowance, recommending appellant for
employment at the Miller, Cruz & Co., allowing appellant to use his house in
Bacolod and paying for her long distance telephone calls, having appellant spend
her vacation in his apartment in Manila and also at his Forbes residence, allowing
appellant to use his surname in her scholastic and other records (Exhs Z, AA,
AA-1 to AA-5, W & W-5)
3) Such recognition has been consistently shown and manifested throughout the
years publicly,35spontaneously, continuously and in an uninterrupted manner.36
Accordingly, in light of the totality of the evidence on record, the second assigned
error must fail.
There is some merit, however, in the third assigned error against the probative
value of some of MONINAs documentary evidence.
MONINAs reliance on the certification issued by the Local Civil Registrar
concerning her birth (Exhs. E and F) is clearly misplaced. It is settled that a
certificate of live birth purportedly identifying the putative father is not
competent evidence as to the issue of paternity, when there is no showing that the
putative father had a hand in the preparation of said certificates, and the Local
Civil Registrar is devoid of authority to record the paternity of an illegitimate
child upon the information of a third person. 37 Simply put, if the alleged father
did not intervene in the birth certificate, e.g., supplying the information himself,
the inscription of his name by the mother or doctor or registrar is null and void;
the mere certificate by the registrar without the signature of the father is not proof
of voluntary acknowledgment on the latters part.38 In like manner, FRANCISCOs
lack of participation in the preparation of the baptismal certificates (Exhs. C and
D) and school records (Exhs. Z and AA) renders these documents incompetent to
prove paternity, the former being competent merely to prove the administration
of the sacrament of baptism on the date so specified.39 However, despite the
inadmissibility of the school records per se to prove paternity, they may be
admitted as part of MONINAs testimony to corroborate her claim that
FRANCISCO spent for her education.
We likewise disagree with the ruling of the Court of Appeals that the certificates
issued by the Local Civil Registrar and the baptismal certificates may be taken as
circumstantial evidence to prove MONINAs filiation. Since they are per
se inadmissible in evidence as proof of such filiation, they cannot be admitted
indirectly as circumstantial evidence to prove the same.
As to Exhibits S, T, U and V, the various notes and letters written by
FRANCISCOs relatives, namely Mike Alano, Emilio Jison, Mariquit Lopez and
Fernando Lopez, respectively, allegedly attesting to MONINAs filiation, while
their due execution and authenticity are not in issue,40 as MONINA witnessed the
authors signing the documents, nevertheless, under Rule 130, Section 39, the
contents of these documents may not be admitted, there being no showing that
the declarants-authors were dead or unable to testify, neither was the relationship
between the declarants and MONINA shown by evidence other than the
documents in question.41 As to the admissibility of these documents under Rule
130, Section 40, however, this requires further elaboration.
Rule 130, Section 40, provides:
Section 40. Family reputation or tradition regarding pedigree. -- The reputation
or tradition existing in a family previous to the controversy, in respect to the
pedigree of any one of its members, may be received in evidence if the witness
testifying thereon be also a member of the family, either by consanguinity or
affinity. Entries in family bibles or other family books or charts, engravings on
rings, family portraits and the like, may be received as evidence of pedigree.
(underscoring supplied)
It is evident that this provision may be divided into two (2) parts: the portion
containing the first underscored clause which pertains to testimonial evidence,
under which the documents in question may not be admitted as the authors thereof
did not take the witness stand; and the section containing the second underscored
phrase. What must then be ascertained is whether Exhibits S to V, as private
documents, fall within the scope of the clause and the like as qualified by the
preceding phrase [e]ntries in family bibles or other family books or charts,
engravings on rights [and] family portraits.
We hold that the scope of the enumeration contained in the second portion of this
provision, in light of the rule of ejusdem generis, is limited to objects which are
commonly known as family possessions, or those articles which represent, in
effect, a familys joint statement of its belief as to the pedigree of a person.42These
have been described as objects openly exhibited and well known to the
family,43 or those which, if preserved in a family, may be regarded as giving a
family tradition.44 Other examples of these objects which are regarded as
reflective of a familys reputation or tradition regarding pedigree are inscriptions
on tombstones,45 monuments or coffin plates.46
Plainly then, Exhibits S to V, as private documents not constituting "family
possessions" as discussed above, may not be admitted on the basis of Rule 130,
Section 40. Neither may these exhibits be admitted on the basis of Rule 130,
Section 41 regarding common reputation,47it having been observed that:
[T]he weight of authority appears to be in favor of the theory that it is the general
repute, the common reputation in the family, and not the common reputation in
community, that is a material element of evidence going to establish pedigree.
xxx [Thus] matters of pedigree may be proved by reputation in the family, and
not by reputation in the neighborhood or vicinity, except where the pedigree in
question is marriage which may be proved by common reputation in the
community.48
Their inadmissibility notwithstanding, Exhibits S to V, inclusive, may, in like
manner as MONINA's school records, properly be admitted as part of her
testimony to strengthen her claim that, indeed, relatives of FRANCISCO
recognized her as his daughter.
We now direct our attention to MONINAs 21 September 1971 affidavit (Exh.
P/Exh. 2), subject of the fourth assigned error, where she attests that
FRANCISCO is not her father. MONINA contends that she signed it under
duress, i.e., she was jobless, had no savings and needed the money to support
herself and finish her studies. Moreover, she signed Exhibit P upon the advice of
Atty. Divinagracia that filiation could not be waived and that FRANCISCOs ploy
would boomerang upon him. On the other hand, FRANCISCO asserts that full
credence should be afforded Exhibit P as MONINA was already 25 years old at
the time of its execution and was advised by counsel; further, being a notarized
document, its genuineness and due execution could not be questioned. He relies
on the testimony of Jose Cruz, a partner at the accounting firm of Miller & Cruz,
who declared that he intervened in the matter as MONINA was spreading rumors
about her filiation within the firm, which might have had deleterious effects upon
the relationship between the firm and FRANCISCO.
On this issue, we find for MONINA and agree with the following observations
of the Court of Appeals:
Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court
xxx does not hold sway in the face of [MONINAs] logical explanation that she
at first did agree to sign the affidavit which contained untruthful statements. In
fact, she promptly complained to [FRANCISCO] who, however explained to her
that the affidavit was only for the consumption of his spouse xxx.
At any rate, if [MONINA] were not his illegitimate daughter, it would have been
uncalled for, if not absurd, for [FRANCISCO] or his lawyer to have secured
[MONINAs] sworn statement xxx On the contrary, in asking [MONINA] to sign
the said affidavit at the cost of P15,000, [FRANCISCO] clearly betrayed his
intention to conceal or suppress his paternity of [MONINA]. xxx
Indeed, if MONINA were truly not FRANCISCOs illegitimate daughter, it would
have been unnecessary for him to have gone to such great lengths in order that
MONINA denounce her filiation. For as clearly established before the trial court
and properly appreciated by the Court of Appeals, MONINA had resigned from
Miller & Cruz five (5) months prior to the execution of the sworn statement in
question, hence negating FRANCISCOs theory of the need to quash rumors
circulating within Miller & Cruz regarding the identity of MONINAs father.
Hence, coupled with the assessment of the credibility of the testimonial evidence
of the parties discussed above, it is evident that the standard to contradict a
notarial document, i.e., clear and convincing evidence and more than merely
preponderant,49 has been met by MONINA.
Plainly then, the burden of evidence fully shifted to FRANCISCO.
Two (2) glaring points in FRANCISCOs defense beg to be addressed: First, that
his testimony was comprised of mere denials, rife with bare, unsubstantiated
responses such as That is not true, I do not believe that, or None that I know. In
declining then to lend credence to FRANCISCOs testimony, we resort to a
guiding principle in adjudging the credibility of a witness and the truthfulness of
his statements, laid down as early as 1921:
The experience of courts and the general observation of humanity teach us that
the natural limitations of our inventive faculties are such that if a witness
undertakes to fabricate and deliver in court a false narrative containing numerous
details, he is almost certain to fall into fatal inconsistencies, to make statements
which can be readily refuted, or to expose in his demeanor the falsity of his
message.
For this reason it will be found that perjurers usually confine themselves to the
incidents immediately related to the principal fact about which they testify, and
when asked about collateral facts by which their truthfulness could be tested, their
answers not infrequently take the stereotyped form of such expressions as I dont
know or I dont remember. xxx50cräläwvirtualibräry
Second, the reasons for the dismissals of Tingson, Baylosis and Savariz were
unspecified or likewise unsubstantiated, hence FRANCISCOs attempt to prove
ill-motive on their part to falsely testify in MONINAs favor may not succeed. As
may be gleaned, the only detail which FRANCISCO could furnish as to the
circumstances surrounding the dismissals of his former employees was that
Baylosis allegedly took advantage of his position while FRANCISCO was in the
United States. But aside from this bare claim, FRANCISCOs account is barren,
hence unable to provide the basis for a finding of bias against FRANCISCO on
the part of his former employees.
As to FRANCISCOs other witnesses, nothing substantial could be obtained
either. Nonito Jalandoni avowed that he only came to know of MONINA in June
1988;51 that during his employment at Nelly Garden from 1963 up to 1974, he
did not recall ever having seen MONINA there, neither did he know of any
instructions from FRANCISCO nor Mr. Lagarto (FRANCISCOs office manager
before passing away) regarding the disbursement of MONINAs
allowance.52 Teodoro Zulla corroborated Jalandonis testimony regarding not
having seen MONINA at Nelly Garden and MONINAs allowance; declared that
Alfredo Baylosis was dismissed due to discrepancies discovered after an audit,
without any further elaboration, however; but admitted that he never prepared the
vouchers pertaining to FRANCISCOs personal expenses, merely those intended
for one of FRANCISCOs haciendas.53 Then, Iigo Superticioso confirmed that
according to the report of a certain Mr. Atienza, Baylosis was dismissed by Mr.
Jison for irregularities, while Superticioso was informed by FRANCISCO that
Tingson was dismissed for loss of confidence. Superticioso likewise denied that
MONINA received money from FRANCISCOs office, neither was there a
standing order from FRANCISCO to release funds to her. 54
It is at once obvious that the testimonies of these witnesses for FRANCISCO are
likewise insufficient to overcome MONINAs evidence. The former merely
consist of denials as regards the latters having gone to Nelly Garden or having
received her allowance from FRANCISCOs office, which, being in the form of
negative testimony, necessarily stand infirm as against positive testimony;55 bare
assertions as regards the dismissal of Baylosis; ignorance of FRANCISCOs
personal expenses incapable of evincing that FRANCISCO did not provide
MONINA with an allowance; or hearsay evidence as regards the cause for the
dismissals of Baylosis and Tingson. But what then serves as the coup de grce is
that despite Superticiosos claim that he did not know MONINA,56 when
confronted with Exhibit H, a telephone toll ticket indicating that on 18 May 1971,
MONINA called a certain Eing at FRANCISCOs office, Superticioso admitted
that his nickname was Iing and that there was no other person named Iing in
FRANCISCOs office.57
All told, MONINAs evidence hurdled the high standard of proof required for the
success of an action to establish ones illegitimate filiation when relying upon the
provisions regarding open and continuous possession or any other means allowed
by the Rules of Court and special laws; moreover, MONINA proved her filiation
by more than mere preponderance of evidence.
The last assigned error concerning laches likewise fails to convince. The essential
elements of laches are: (1) conduct on the part of the defendant, or of one under
whom he claims, giving rise to the situation of which the complaint seeks a
remedy; (2) delay in asserting the complainants rights, the complainant having
had knowledge or notice of the defendants conduct as having been afforded an
opportunity to institute a suit; (3) lack of knowledge or notice on the part of the
defendant that the complaint would assert the right in which he bases his suit; and
(4) injury or prejudice to the defendant in the event relief is accorded to the
complainant, or the suit is not held barred.58 The last element is the origin of the
doctrine that stale demands apply only where by reason of the lapse of time it
would be inequitable to allow a party to enforce his legal rights.59
There is no presumption of the law more firmly established and founded on
sounder morality and more convincing reason than the presumption that children
born in wedlock are legitimate. (Tison vs. Court of Appeals, 276 SCRA 582
[1997]) Jison vs. Court of Appeals, 286 SCRA 495, G.R. No. 124853 February
24, 1998

As FRANCISCO set up laches as an affirmative defense, it was incumbent upon

him to prove the existence of its elements. However, he only succeeded in
showing MONINAs delay in asserting her claim, but miserably failed to prove
the last element. In any event, it must be stressed that laches is based upon
grounds of public policy which requires, for the peace of society, the
discouragement of stale claims, and is principally a question of the inequity or
unfairness of permitting a right or claim to be enforced or asserted. There is no
absolute rule as to what constitutes laches; each case is to be determined
according to its particular circumstances. The question of laches is addressed to
the sound discretion of the court, and since it is an equitable doctrine, its
application is controlled by equitable considerations. It cannot be worked to
defeat justice or to perpetuate fraud and injustice. 60 Since the instant case
involves paternity and filiation, even if illegitimate, MONINA filed her action
well within the period granted her by a positive provision of law. A denial then
of her action on ground of laches would clearly be inequitable and unjust.

WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby

DENIED and the challenged decision of the Court of Appeals of 27 April 1995
in CA-G.R. CV No. 32860 is AFFIRMED.

SO ORDERED.

Notes.—The phrase “vested or acquired rights” under Article 256 is not defined
by the Family Code, leaving it to the courts to determine what it means as each
particular issue is submitted to them. (Aruego, Jr. vs. Court of Appeals, 254
SCRA 711 [1996])

In the absence of titles indicated in Art. 265 of the Civil Code, the filiation of
children may be proven by continuous possession of the status of a legitimate
child and by any other means allowed by the Rules of Court or special laws.
(Balogbog vs. Court of Appeals, 269 SCRA 259 [1997])
G.R. No. 92740. March 23, 1992.
PHILIPPINE AIRLINES, INC., petitioner, vs. JAIME M. RAMOS, NILDA
RAMOS, ERLINDA ILANO, MILAGROS ILANO, DANIEL ILANO AND
FELIPA JAVALERA, respondents.
Evidence; Documentary evidence; Writing or document made
contemporaneously with transaction regarded as more reliable proof than oral
testimony.—In the absence of any controverting evidence, the documentary
evidence presented to corroborate the testimonies of PAL’s witnesses are prima
facie evidence of the truth of their allegations. The plane tickets of the private
respondents, exhs. “1,” “2,” “3,” “4,” (with emphasis on the printed condition of
the contract of carriage regarding check-in time as well as on the notation “late
4:02” stamped on the flight coupon by the check-in clerk immediately upon the
check-in of private respondents) and the passenger Manifest of Flight PR 264,
exh. “5,” (which showed the non-accommodation of Capati and Go and the
private respondents) are entries made in the regular course of business which the
private respondents failed to overcome with substantial and convincing evidence
other than their testimonies. Consequently, they carry more weight and credence.
A writing or document made contemporaneously with a transaction in which are
evidenced facts pertinent to an issue, when admitted as proof of those facts, is
ordinarily regarded as more reliable proof and of greater probative force than the
oral testimony of a witness as to such facts based upon memory and recollection
(20 Am Jur S 1179, 1029 cited in Francisco, Revised Rules of Court in the
Philippines Annotated, 1973 Edition, Volume VII, Part II, p. 654).
Same; Same; Exception to hearsay rule; Res gestae.—The hearsay rule will not
apply in this case as statements, acts or conduct accompanying or so nearly
connected with the main transaction as to form a part of it, and which illustrate,
elucidate, qualify or characterize the act, are admissible as part of the res gestae
(32 C.J.S., S. 411, 30-31).
Common carriers; Contract of carriage; Passengers bound by conditions of
contract.—When the private respondents purchased their tickets, they were
instantaneously bound by the conditions of the contract of carriage particularly
the check-in time requirement. The terms of the contract are clear. Their failure
to come on time for check-in should not militate against PAL. Their non-
accommodation on that flight was the result of their own action or inaction and
the ensuing cancellation of their tickets by PAL is only proper. Philippine
Airlines, Inc. vs. Ramos, 207 SCRA 461, G.R. No. 92740 March 23, 1992
This petition for review on certiorari seeks to reverse the decision of the Court
of Appeals dated March 15, 1990 affirming in toto the decision of the Regional
Trial Court of Imus, Cavite, Branch 21, directing the Philippine Airlines, Inc.
(PAL, for short) to pay the private respondents the amounts specified therein as
actual, moral and temperate damages as well as attorney's fees and expenses of
litigation.
The antecedents facts are briefly recounted by the appellate court, as follows:
Plaintiffs Jaime Ramos, Nilda Ramos, Erlinda Ilano, Milagros Ilano, Daniel Ilano
and Felipe Javalera, are officers of the Negros Telephone Company who held
confirmed tickets for PAL Flight No. 264 from Naga City to Manila on
September 24, 1985, scheduled to depart for Manila at 4:25 p.m. The tickets were
brought sometime in August 1985. Among the conditions included in plaintiffs
tickets is the following:
1. CHECK-IN TIME — Please check in at the Airport Passenger check-in
counter at least one hour before PUBLISHED departure time of your flight. We
will consider your accommodation forfeited in favor of waitlisted passenger if
you fail to check-in at least 30 minutes before PUBLISHED departure time.
(Exhs. (1-A-A, 2-A-1, S-A, O-A-1, tsn. Nov 23, 1987, p. 8).
Plaintiffs claim in their Complaint that they went tot he check-in counter of the
defendant's Naga branch at least one (1) hour before the published departure time
but no one was at the counter until 30 minutes before departure, but upon
checking -in and presentation of their tickets to the employee/clerk who showed
up, their tickets were cancelled and the seats awarded to chance passengers;
plaintiffs had to go to Manila by bus, and seek actual, moral and exemplary
damages, and attorney's fees for breach of contract of carriage.
Defendant disclaim any liability, claiming that the non-accommodation of
plaintiff on the said flight was due to their having check-in (sic) late for their
flight. It is averred even if defendant is found liable to the plaintiffs such liability
is confined to, and limited by, the CAB Economic Regulations No. 7 in
conjunction with P.D. 589.
The trial court rendered judgment finding defendant guilty of breach of contract
of carriage in bumping-off the plaintiffs from its F264 flight of September 25,
1985, and ordered defendant to pay:
1) P1,250.20 — the total value of the tickets:
2) P22.50 — the total value of airport security fees and terminal fees;
3) P20,000.00 — for each of the plaintiffs for moral and temperate damages; and
4) P5,000.00 — for attorney's fees and expenses of litigation. (Rollo, pp. 35-36)
PAL appealed to the Court of Appeals. On March 15, 990, the appellate court
rendered a decision, the dispositive portion of which, reads:
WHEREFORE, the decision appealed from is AFFIRMED in toto, with costs
against appellant.
SO ORDERED. (Rollo, p. 42)
Hence, this present petition with the following legal questions:
1. Can the Honorable Court of Appeals validity promulgate the questioned
decision by the simple expedient of adopting in toto the trial court's finding that
defendant-appellant is liable for damages on the sole issue of credibility of
witnesses without considering the material admissions made by the plaintiffs and
other evidence on record that substantiate the defense of defendant-appellant.
2. Can the Honorable Court award legally moral and temperate damages plus
attorney's fees of P5,000.00 contrary to the evidence and established
jurisprudence. (Rollo, p. 9)
Under Section 1, Rule 131 of the Rules of Court, each party in a case is required
to prove his affirmative allegations. In civil cases, the degree of evidence required
of a party in order to support his claim is preponderance of evidence or that
evidence adduced by one party which is more conclusive and credible than that
of the other party (Stronghold Insurance Company, Inc. vs. Court of Appeals, et
al., G.R. No. 83376, May 29, 1989, 173 SCRA 619, 625).
The case at bar presents a simple question of fact: Whether or not the private
respondents were late in checking-in for their flight from Naga City to Manila on
September 24. 1985. It is immediately apparent from the records of this case that
the claims of the parties on this question are dramatically opposed. As a rule, the
determination of a question of fact depends largely on the credibility of
witnesses unless some documentary evidence is available which clearly
substantiates the issue and whose genuineness and probative value is not disputed
(Legarda v. Miaile, 88 Phil. 637, 642). The exception to the rule now runs true in
this case.
We reverse. This case once more illustrates Our power to re-weigh the findings
of lower courts when the same are not supported by the record or not based on
substantial evidence (see Cruz v. Villarin, G.R. No. 75679, January 12, 1990, 181
SCRA 53, 61).
It is an admitted fact that the private respondents knew of the required check-in
time for passengers. The time requirement is prominently printed as one of the
conditions of carriage on their tickets, i.e., that the airport passenger should
check-in at least one hour before published departure time of his flight and PAL
shall consider his accommodation forfeited in favor of waistlisted passengers if
he fails to check-in at least 30 minutes.
We note that while the aforequoted condition has always been applied strictly
and without exception (TSN, December 16, 1987, p. 11), the station manager,
however, may exercise his discretion to allow passengers who checked-in late to
board provided the flight is not fully booked and seats are available (ibid, pp. 17-
18). On September 24, 1985, flight 264 from Naga to Manila was fully booked
owing to the Peñafrancia Festival (TSN, January 25, 1988, p.5). In addition, PAL
morning flights 261 and 262 were canceled resulting in a big number o f
waitlisted passengers. (TSN, November 23,
1987, p. 6).
The private respondents claim that they were on time in checking-in for their
flight; that no PAL personnel attended to them until much later which accounted
for their late check-in; that PAL advanced the check-in time and the departure of
their flight resulting in their non-accommodation; and that they suffered physical
difficulties, anxieties and business losses.
The evidence on record does not support the above contentions. We note that
there were two other confirmed passengers who came ahead of the private
respondents but were refused accommodation because they were late. Edmundo
Araquel, then the check-in-clerk, testified on this point, as follows:
Atty. Marcelino C. Calica, counsel for PAL
Q Before the plaintiffs arrive (sic) at the check-in counter, do you recall
if there were other passengers who arrived at the counter and they were
advised that they were late?
A Yes, sir.
Q Who were those persons?
A My former classmates at Ateneo, sir, Rose Capati and Go, Merly.
Q Were these two passengers also confirmed passengers on this flight?
A Yes, sir.
Q I show to you a document which is entitled "Passenger Manifest of
flight 264, September 24, 1985," which we request to be marked as Exh.
"5" you said earlier that aside from the plaintiffs here there were two
other passengers who also checked in but they were also late and you
mentioned the names of these passengers as Capati and Go, please point
to us that entry which will show the names of Go and Capati?
A Here, sir, numbers 13 and 14 of the Manifest.
ATTY. CALICA: We request that passengers 13 and 14 be marked in
evidence, Go for 13 and Capati for 14 as Exh. "5-A."
Q You said that these two passengers you mentioned were also similarly
denied accommodations because they checked in late, did they check in
before or after the plaintiffs?
A Before, sir.
Q What time did they appear at the counter?
A 4:01 p.m., sir.
Q What happened when they checked in at 4:01?
A I told them also that they were late so they cannot be accommodated
and they tried to protest, but they decided later on just to refund the
ticket. (TSN of November 23, 1987, pp. 11-12)
Shortly after, the private respondents followed the aforesaid two
passengers at the counter. At this juncture, Araquel declared, thus:
Q Now, you said that you met the plaintiffs in this case because they
were passengers of Flight 264 on September 24, 1985 and they were not
accommodated because they checked in late, what time did these
plaintiffs check in?
A Around 4:02 p.m., sir.
Q Who was the clerk at the check in counter who attended to them?
A I was the one, sir.
xxx xxx xxx
Q You said when you were presented the tickets of the plaintiffs in this
case and noting that they were late for checking in, immediately after
advising them that they were late, you said you made annotation on the
tickets?
A Yes, sir.
Q I am showing to you Exhs. "A," "B," "C," and "D," which are the
tickets of Mr. & Mrs. Jaime Ramos for Exh. "A," Exh. "B" ticket of Mr.
& Mrs. Daniel Ilano, "C" ticket of Felipa Javalera and "D" ticket of
Erlinda Ilano, will you please go over the same and point to us the
notations you said you made on these tickets?
A This particular time, sir. (Witness pointing to the notation "Late" and
the time "4:02" appearing at the upper righthand of the tickets Exhs.
"A," "B," "C," and "D.")
Q How long did it take after the tickets were tendered to you for
checking in and before you made this notation?
A It was just seconds, sir.
Q On the tickets being tendered for check-in and noting that they were
late, you mean to say you immediately made annotations?
A Yes, sir. That is an S.O.P. of the office.
Q So on what time did you base that 4:02?
A At the check-in counter clock, sir.
Q At the time you placed the time, what was the time reflected at the
counter clock?
A 4:02, sir. (ibid, pp. 8-11)
The private respondents submitted no controverting evidence. As
clearly manifested above, the intervening time between Capati and Go
and the private respondents took only a mere second. If indeed, the
private respondents were at the check-in counter at 3:30 p.m., they could
have been the first ones to be attended to by Araquel than Capati and
Go. They cold have also protested if they were the earliest passengers at
the counter but were ignored by Araquel in favor of Go and Capati. They
did not.
It is likewise improbable that not a single PAL personnel was in
attendance at the counter when the check-in counter was supposed to be
opened at 3:25 p.m. It mist be remembered that the morning flight to
Manila was canceled and hence, it is not farfetched for Us to believe that
the PAL personnel then have their hands full in dealing with the
passengers of the morning flight who became waitlisted passengers.
Moreover, the emphatic assertions of private respondent Daniel Javalora
Ilano regarding the absence of a PAL personnel lost its impact during
the cross examination:
ATTY. CALICA —
Q So, you maintain therefore that for all the time that you waited for
there for the whole twenty (20) minutes the check-in counter and other
PAL Offices there — the whole counter was completely unmanned? I
am referring to the whole area there where it is enclosed by a counter.
I will describe to you, for the benefit of the court.
When you approach the counter at Naga Airport, the counter is enclosed,
I mean, you cannot just go inside the PAL office, right? there is some
sort of counter where you deal with the PAL personnel and you
approximate this counter to be five (5) to six (6) meters. Now, this space
after the counter, did you observe what fixtures or enclosures are
contained there inside the enclosed space?
A I am not sure whether there are offices or enclosures there.
Q You have been traveling and had opportunity to check-in your tickets
so may times. Everytime that you check-in, how many personnel are
manning the check-in counter?
A There are about three (3) or four (4), sir.
Q Everytime, there are three (3) or four (4)?
A Everytime but not that time.
Q I am referring to your previous trips, I am not referring to this incident.
On previous occasions when you took the flight with Pili Airport and
you see three (3) or four (4) personnel everytime, are all these three (3)
or four (4) personnel at the counter or some are standing at the counter
or others are seated on the table doing something or what? Will you
describe to us?
A Some are handling the baggages and some are checking-in the tickets.
Q So, on most occasions when you check-in and say, there were at least
three (3) of four (4) people at the check-in counter, one would attend to
the tickets, another to the check in baggage, if any. Now, do you notice
if somebody evade when you check-in your ticket. This other person
would receive the flight coupon which is detached from your ticket and
record it on what we call passenger manifest?
A That's true.
Q Now, it is clear one would attend to the baggage, another person
would receive the ticket, detach the coupon and one would record it on
the passenger manifest. What about the fourth, what was he doing, if
you recall?
A I think, putting the identification tags on the baggages (sic). (TSN,
November 17, 1986, p. 38)
Ilano's declaration becomes even more patently unreliable in the face of
the Daily Station Report of PAL dated September 24, 1985 which
contained the working hours of its personnel from 0600 to 1700 and
their respective assignments, as follows:
ATTY. CALICA
Q Normally upon opening of the check-in counter, how many PAL
personnel are assigned to man the counter?
EDMUNDO ARAQUEL
A A total of four personnel with the assistance of others.
Q Who are these personnel are assigned to the counter and what specific
duties they performed?
A Mr. Oropesa handled the cargo, Mr. Espiritu handled the ticketing,
Mr. Valencia and me handled the checking in of passengers.
Q Are you referring to this particular flight 264 on September 24, 1985?
A Yes, sir.
Q Who was assigned as check-in clerk that particular time?
A I was the one with Mr. Valencia, sir.
Q What was Mr. Valencia doing?
A He assisted me, sir.
Q How?
A If a group of passengers simultaneously check in, we divided the work
between us. (TSN, November 23, 1987, p. 7)
xxx xxx xxx
Q When the plaintiffs testified in this case particularly plaintiff Daniel
Ilano and Felipa Javalera at the previous hearings said plaintiffs stated
that they arrived at the check-in counter at about 3:25 or 3:30 and there
was nobody in the counter, what can you say to that?
A We cannot leave the counter, sir. That was always manned from 3:25
up to the last minute. We were there assigned to handle the checking in
of the passengers.
Q You mentioned earlier that aside from you there were other personnel
assigned to the check-in counter and you even mentioned about a certain
Valencia assisting you, do you have any evidence to show said
assignment of personnel at the airport?
A Yes, sir.
Q I show to you a daily station report from 24 September 1985 covering
working hours 0600 to 1700, will you please go over the same and
thereafter tell us from the personnel listed in this Daily Station Report
what were the name (sic) of the personnel assigned to man a check-in
counter at that time?
A There (sic) persons assigned were Mr. Oropesa, Mr. Espiritu, Mr.
Medevilla, myself and Mr. Valencia.
Q You mentioned about Mr. Espiritu, what was his specific task at that
time?
A He was handling the ticketing, sir.
Q What about Mr. Medevilla?
A He was taking care of the ramp handling.
Q And Mr. Oropesa?
A He was handling the incoming cargo.
ATTY. CALICA: We request that this Daily Station Report be marked
Exh. "6" and the portion of the Report which shows the deployment of
personnel of PAL Naga Station on September 24, 1985 as "6-A."
Q Plaintiffs in this case testified that when they checked in there was
nobody manning the counter and they had to wait for twenty minutes
before someone came in to the counter, what can you say to that?
A It is not true because all the time we were there from the start, an hour
before the flight we were there because we were assigned there.
Q Plaintiff Daniel Ilano testified that he went to the counter twice, first
at 3:25 and it was only at 4:00 p.m. that somebody went to the counter
and attended to him and while he expected his boarding pass he was told
instead that plaintiffs could not be accommodated because they were
late, what can you say to that?
A The truth is we were always there and we never left the counter from
the start of the check-in time of 3:25 we were all there, we never left the
counter.
Q Until what time did you remain at the check-in counter?
A At around 4:15 p.m., sir.
 Q You said that the check-in counter was closed at 3:55, for what of it, and which illustrate, elucidate, qualify or characterize the act, are admissible
purpose were you still manning the check-in counter? as apart of the res gestae (32 C.J.S., S. 411, 30-31). Based on these
circumstances, We are inclined to believe the version of PAL. When the private
A To attend to the passenger who are late in checking in because they respondents purchased their tickets, they were instantaneously bound by the
also need assistance in explaining to them the situation. conditions of the contract of carriage particularly the check-in time requirement.
Q So it was for that purpose you were there? The terms of the contract are clear. Their failure to come on time for check-in
should not militate against PAL. Their non-accommodation on that flight was the
A Yes, sir. (ibid., pp. 16-18) result of their own action or inaction and the ensuing cancellation of their tickets
by PAL is only proper.
It is significant to note that there were no other passenger who checked-in late
after the private respondents (TSN, November 23, 1987, p. 13). In the absence of Furthermore, We do not find anything suspicious in the fact that PAL flight 264
any controverting evidence, the documentary evidence presented to corroborate departed at 4:13 p.m. instead of 4:25 p.m. Apart from their verbal assertions, the
the testimonies of PAL's witnesses are prima facie evidence of the truth of their private respondents did not show any evidence of irregularity. It being clear that
allegations. The plane tickets of the private respondents, exhs. "1," "2," "3," "4," all the passengers have already boarded, there was no sense in keeping them
(with emphasis on the printed condition of the contract of carriage regarding waiting for the scheduled time of departure before the plane could take flight.
check-in time as well as on the notation "late 4:02" stamped on the flight coupon
by the check-in clerk immediately upon the check-in of private respondents) and ACCORDINGLY, the petition is GRANTED. The questioned decision of the
the passenger Manifest of Flight PR 264, exh. "5," (which showed the non- Court of Appeals dated March 15, 1990 is hereby ANNULLED and SET ASIDE.
accommodation of Capati and Go an the private respondents)are entries made in No costs.
the regular course of business which the private respondents failed to overcome SO ORDERED.
with substantial and convincing evidence other than their testimonies.
Consequently, they carry more weight and credence. A writing or document Note.—A statement need not be in writing to be admissible as part of the res
made contemporaneously with a transaction in which are evidenced facts gestae. (Medios vs. Court of Appeals, 169 SCRA 838.) Philippine Airlines, Inc.
pertinent to an issue, when admitted as proof of those facts, is ordinarily regarded vs. Ramos, 207 SCRA 461, G.R. No. 92740 March 23, 1992
as more reliable proof and of greater probative force than the oral testimony of a
witness as to such facts based upon memory and recollection (20 Am Jur S 1179,
1029 cited in Francisco, Revised Rules of Court in the Philippines Annotated,
1973 Edition, Volume VII, Part II, p. 654). Spoken words could be notoriously
unreliable as against a written document that speaks a uniform language (Spouses
Vicente and Salome de Leon v. CA., et al., G.R. No. 95511, January 30, 1992).
This dictum is amply demonstrated by the diverse allegations of the private
respondents in their complaint (where they claimed that no one was at the counter
until thirty (30) minutes before the published departure time and that the
employee who finally attended to them marked them late, Records, p. 2) and in
their testimonies (where they contended that there were two different PAL
personnel who attended to them at the check-in counter. TSNs of November 17,
1986, pp. 41-45 and of May 18, 1987, pp. 5-6). Private respondents' only
objection to these documents is that they are self-serving cannot be sustained.
The hearsay rule will not apply in this case as statements, acts or conduct
accompanying or so nearly connected with the main transaction as to form a part
G.R. No. 140023. August 14, 2003
RUDY LAO, petitioner, vs. STANDARD INSURANCE CO., INC.,
respondent.
Evidence: Documentary Evidence; Police Blotter; A police blotter is admissible
if the following requisites are met.—The police blotter was admitted under Rule
130, Section 44 of the Rules of Court. Under the said rule, the following are the
requisites for its admissibility: (a) that the entry was made by a public officer, or
by another person, specially enjoined by law to do so; (b) that it was made by the
public officer in the performance of his duties, or by such other person in the
performance of a duty specially enjoined by law; (c) that the public officer or
other person had sufficient knowledge of the facts by him stated, which must
have been acquired by him personally or through official information.
Damages: Exemplary Damages; Although exemplary damages cannot be
recovered as a matter of right, they also need not be proved.—Although
exemplary damages cannot be recovered as a matter of right, they also need not
be proved. But a complainant must still show that he is entitled to moral,
temperate or compensatory damages before the court may consider the question
of whether or not exemplary damages should be awarded. Lao vs. Standard
Insurance Co., Inc., 409 SCRA 43, G.R. No. 140023 August 14, 2003
The instant petition seeks the reversal of the Court of Appeals’ Decision 1 dated
February 4, 1999, as well as its Resolution, 2 dated September 7, 1999, in CA-
G.R. CV No. 47227. The assailed decision dismissed petitioner’s appeal and the
resolution denied petitioner’s motion for reconsideration.
The original action was lodged before the Regional Trial Court of Iloilo City,
Branch 25, as Civil Case No. 17045 for breach of contract and damages, as a
result of the insurance company’s refusal of petitioner’s claim on the insurance
policy of his truck which figured in an accident during the effectivity of the
policy.
The following are the antecedent facts:
Petitioner Rudy Lao is the owner of a Fuso truck with Plate No. FCG-538. The
truck was insured with respondent Standard Insurance Co., Inc. under Policy
No. CV-21074 3 for the maximum amount of P200,000 and an additional sum
of P50,000 to cover any damages that might be caused to his goods.
While the policy was in effect, an accident occurred. At around 8:00 p.m. of
April 24, 1985, in Barangay Buhang, Jaro, Iloilo City, the insured truck bumped
another truck, with Plate No. FBS-917, also owned by petitioner Lao. The latter
truck was running ahead of the insured truck and was bumped from the rear.
The insured truck sustained damages estimated to be around P110,692, while
the damage to the other truck and to properties in the vicinity of the accident,
were placed at P35,000 more or less.
Petitioner filed a claim with the insurance company for the proceeds from his
policy. However, the claim was denied by the insurance company on the ground
that when its adjuster went to investigate the matter, it was found that the driver
of the insured truck, Leonardo Anit, did not possess a proper driver’s license at
the time of the accident. The restriction 4 in Leonardo Anit’s driver’s license
provided that he can only drive four-wheeled vehicles weighing not more than
4,500 kgs. Since the insured truck he was driving weighed more than 4,500
kgs., he therefore violated the "authorized driver" clause 5 of the insurance
policy. In addition, respondent cited the following excerpts from the police
blotter of the Iloilo INP, to wit:
C-UN-85 DAMAGE TO PROPERTY W/ PHY INJURIES —
R/IMPRUDENCE
11:30 PM — Sgt. A. Bernas informed this office that a collision took place at
Brgy. Buhang, Jaro, IC. Investigation conducted by Pat. Villahermosa, assisted
by Lt. P. Baclaron (OD), disclosed that at about 8:00 PM this date at the
aforementioned place, a collision took place between a truck (Hino) with Plate
Nr FB[S] 917 owned by Rudy Lao and driven by BOY GIDDIE Y COYEL, 38
yrs, a res. of Balasan, Iloilo, with License Nr DLR 1108142 and another truck
with Plate Nr. FCG-538 owned by Rudy Lao and driver (sic) by LEONARDO
ANIT Y PANES, 33 yrs, a res. of Brgy Laya, Balasan, Iloilo with License Nr
1836482.
Petitioner claims that at the time of the accident, it was in fact another driver
named Giddie Boy Y Coyel who was driving the insured truck. Giddie Boy
possessed a driver’s license authorizing him to drive vehicles such as the truck
which weighed more than 4,500 kgs. As evidence, petitioner presented the
Motor Vehicle Accident Report 7 wherein the Investigating Officer, Pat. Felipe
D. Villahermosa, stated that it was Giddie Boy driving the insured truck and not
Leonardo Anit. The said report was made three days after the accident or on
April 27, 1985. However, respondent insurance company was firm in its denial
of the claim.
Hence, petitioner filed the civil case before the RTC. After trial, the court
disposed of the case as follows:chanrob1es virtual 1aw library
WHEREFORE, premises considered, the Court finds that plaintiff lacks
sufficient cause of action against the defendant and hence ordered his case
dismissed and further orderes (sic) him to pay the defendant the following:
1) P20,000.00 as attorney’s fees plus P500.00 for appearance fee; and
2) P50,000.00 as exemplary damages.
SO ORDERED.
On appeal with the Court of Appeals, the RTC decision was affirmed. The
petition was dismissed and the motion for reconsideration was denied. The CA
stated:chanrob1es virtual 1aw library
IN VIEW OF THE FOREGOING, the decision appealed from is hereby
AFFIRMED. Consequently, the complaint is DISMISSED for lack of merit.
SO ORDERED. 9
In his petition for review now before us, petitioner cites the following as
grounds therefor:chanrob1es virtual 1aw library
A. THE HONORABLE COURT OF APPEALS AND THE LOWER COURT
RELIED MAINLY ON SECTION 44, RULE 130 OF THE RULES OF
COURT IN UPHOLDING THE ENTRY IN THE POLICE BLOTTER
WHICH STATED THAT THE DRIVER OF THE INSURED VEHICLE WAS
LEONARDO ANIT Y PANES, WHO WAS NOT AN AUTHORIZED
DRIVER. UNDER THE SAID SECTION 44, RULE 130 ITSELF HOWEVER,
THE POLICE BLOTTER IS MERELY A PRIMA FACIE EVIDENCE OF
THE FACTS STATED THEREIN WHICH MAY BE NULLIFIED BY
OTHER EVIDENCE; 10
B. PERCEPTION OF THE HONORABLE COURT OF APPEALS’ ON THE
"DIMINISHED" CREDIBILITY OF PAT. FELIPE VILLAHERMOSA, THE
TRAFFIC POLICE INVESTIGATOR, IS MISPLACED AND UNFOUNDED;
11
C. THE DRIVER OF THE INSURED TRUCK WITH PLATE NR. FCG-538
WAS GIDDIE BOY Y COYEL, AN AUTHORIZED DRIVER OF THE SAID
TRUCK. THE DRIVER OF THE OTHER TRUCK INVOLVED IN THE
ACCIDENT WITH PLATE NR. FBS-917 WAS LEONARDO ANIT Y
PANES; 12
D. THE HONORABLE COURT OF APPEALS MISAPPLIED ARTICLES
2232 AND 2208 OF THE NEW CIVIL CODE IN GRANTING EXEMPLARY
DAMAGES AND ATTORNEY’S FEES TO RESPONDENT. UNDER
ARTICLES 2229 AND 2234 OF THE NEW CIVIL CODE, EXEMPLARY
DAMAGES CANNOT BE AWARDED IN THE ABSENCE OF AN AWARD
FOR MORAL, TEMPERATE, LIQUIDATED OR COMPENSATORY
DAMAGES; 13
E. TESTIMONIES OF THE WITNESSES OF RESPONDENT NAMELY,
SGT. BERNAS, THE DESK OFFICER AND ROMEO GUIERGEN,
INSURANCE ADJUSTER, WERE INCONSISTENT AND UNRELIABLE;
14 and
F. THE HONORABLE COURT OF APPEALS UPHELD THE DECISION OF
THE LOWER COURT DESPITE GLARING MISAPPLICATION OF THE
LAW AND JURISPRUDENCE ESTABLISHED BY THIS HONORABLE
SUPREME COURT AS WELL AS CLEAR MISAPPREHENSION OF THE
FACTS IN THIS CASE. 15
Three issues must be resolved: (1) The admissibility and probative value of the
police blotter as evidence; (2) The assessment of the credibility of witnesses;
and (3) The propriety and basis of the awards for exemplary damages and
attorney’s fees. Also pertinent here is the factual issue of whether or not
Leonardo Anit, an unauthorized driver, was driving the insured truck at the time
of the accident.
Petitioner assails the admissibility and evidentiary weight given to the police
blotter, as a basis for the factual finding of the RTC and the CA. He contends
that the same entry was belied by the Motor Vehicle Accident Report and
testimony of the investigating policeman himself, attesting that it was Giddie
Boy Coyel, not Leonardo Anit, who was driving the insured vehicle. 16
Respondent avers that the same police report and testimony were of dubious
nature. Both trial and appellate courts noted that the report was made three days
after the accident and did not form part of the official police records. 17
The police blotter was admitted under Rule 130, Section 44 of the Rules of
Court. 18 Under the said rule, the following are the requisites for its
admissibility:chanrob1es virtual 1aw library
(a) that the entry was made by a public officer, or by another person, specially
enjoined by law to do so;
(b) that it was made by the public officer in the performance of his duties, or by
such other person in the performance of a duty specially enjoined by law;
(c) that the public officer or other person had sufficient knowledge of the facts
by him stated, which must have been acquired by him personally or through
official information. 19
We agree with the trial and appellate courts in finding that the police blotter was
properly admitted as they form part of official records. 20 Entries in police
records made by a police officer in the performance of the duty especially
enjoined by law are prima facie evidence of the fact therein stated, and their
probative value may be either substantiated or nullified by other competent
evidence. 21 Although police blotters are of little probative value, they are
nevertheless admitted and considered in the absence of competent evidence to
refute the facts stated therein.
In this case, the entries in the police blotter reflected the information subject of
the controversy. Stated therein was the fact that Leonardo Anit was driving the
insured truck with plate number FCG-538. This is unlike People v. Mejia, 22
where we said that "entries in the police blotters should not be given undue
significance or probative value," since the Court there found that "the entries in
question are sadly wanting in material particulars" .
Furthermore, in this case the police blotter was identified and formally offered
as evidence. The person who made the entries was likewise presented in court;
he identified and certified as correct the entries he made on the blotter. The
information was supplied to the entrant by the investigating officer who did not
protest about any inaccuracy when the blotter was presented to him. No
explanation was likewise given by the investigating officer for the alleged
interchange of names.
Petitioner also assails the credence given by the trial court to the version of the
respondents vis-a-vis the testimonies of the witnesses. Time and again we have
reiterated the settled doctrine that great weight, and even finality, is given to the
factual conclusions of the Court of Appeals which affirm those of the trial
courts. 23 We find on this score no reason to overturn such conclusions.
On the issue of damages, we agree with petitioner that the award of exemplary
damages was improper. In Tiongco v. Atty. Deguma 24 we held that the
entitlement to the recovery of exemplary damages must be shown. In the case at
bar, respondent have not shown sufficient evidence that petitioner indeed
schemed to procure the dubious documents and lied through his teeth to
establish his version of the facts. What was found was that the document he
presented was inadmissible, and its contents were dubious. However, no proof
was adduced to sufficiently establish that it came to his hands through his
employment of underhanded means. In Tiongco, we further stated:
Although exemplary damages cannot be recovered as a matter of right, they
also need not be proved. But a complainant must still show that he is entitled to
moral, temperate or compensatory damages before the court may consider the
question of whether or not exemplary damages should be awarded.25cralaw:red
Thus, it was error for the courts below to award exemplary damages in the
absence of any award for moral, temperate or compensatory damages.
The award of attorney’s fees must also be deleted. Such award was given in its
extraordinary concept as indemnity for damages to be paid by the losing party
to the prevailing party. 26 But it was not sufficiently shown that petitioner acted
maliciously in instituting the claim for damages. Perforce, the award of
attorney’s fees was improper.
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals
are AFFIRMED, with the MODIFICATION that the award of exemplary
damages and attorney’s fees is hereby DELETED. No pronouncement as to
costs.

SO ORDERED

Note.—The testimonies of the three police officers carry with it the presumption
of regularity in the performance of official functions. (People vs. Barita, 325
SCRA 22 [2000]) Lao vs. Standard Insurance Co., Inc., 409 SCRA 43, G.R. No.
140023 August 14, 2003
G.R. No. 127598. February 22, 2000. In the Decision promulgated on January 27, 1999, the Court disposed of the case
as follows:
MANILA ELECTRIC COMPANY, petitioner, vs. Hon. SECRETARY of
LABOR LEONARDO QUISUMBING and MERALCO EMPLOYEES and WHEREFORE, the petition is granted and the orders of public respondent
WORKERS ASSOCIATION (MEWA), respondents. Secretary of Labor dated August 19, 1996 and December 28, 1996 are set aside
to the extent set forth above. The parties are directed to execute a Collective
Labor Law; Collective Bargaining Agreements; Public Utilities; An increase in Bargaining Agreement incorporating the terms and conditions contained in the
the prices of electric current needs the approval of the appropriate regulatory unaffected portions of the Secretary of Labor's orders of August 19, 1996 and
government agency and does not automatically result from a mere increase in the December 28, 1996, and the modifications set forth above. The retirement fund
wages of the public utility firm’s employees.—–Petitioner warns that if the wage issue is remanded to the Secretary of Labor for reception of evidence and
increase of P2,200.00 per month as ordered by the Secretary is allowed, it would determination of the legal personality of the MERALCO retirement fund. 1
simply pass the cost covering such increase to the consumers through an increase
in the rate of electricity. This is a non sequitur. The Court cannot be threatened The modifications of the public respondent's resolutions include the following:
with such a misleading argument. An increase in the prices of electric current
needs the approval of the appropriate regulatory government agency and does not Secretary's
January 27, 1999 decision
automatically result from a mere increase in the wages of petitioner’s employees. resolution
Besides, this argument presupposes that petitioner is capable of meeting a wage
increase.
Wages - P1,900.00 for 1995-96 P2,200.00
Same; Same; Evidence; Commercial Lists; A mere newspaper account is not
considered a commercial list—it is at most an analysis or opinion which carries X'mas bonus - modified to one month 2 months
no persuasive weight in determining the rate of wage increase.—–Under the
afore-quoted rule, statement of matters contained in a periodical may be admitted
Retirees - remanded to the Secretary granted
only “if that compilation is published for use by persons engaged in that
occupation and is generally used and relied upon by them therein.” As correctly
held in our Decision dated January 27, 1999, the cited report is a mere newspaper Loan to coops - denied granted
account and not even a commercial list. At most, it is but an analysis or opinion
which carries no persuasive weight for purposes of this case as no sufficient GHSIP, HMP
figures to support it were presented. Neither did anybody testify to its accuracy. and
It cannot be said that businessmen generally rely on news items such as this in Housing loans - granted up to P60,000.00 granted
their occupation. Besides, no evidence was presented that the publication was
regularly prepared by a person in touch with the market and that it is generally
regarded as trustworthy and reliable. Absent extrinsic proof of their accuracy, Signing bonus - denied granted
these reports are not admissible. In the same manner, newspapers containing
stock quotations are not admissible in evidence when the source of the reports is Union leave - 40 days (typo error) 30 days
available. With more reason, mere analyses or projections of such reports cannot
be admitted. In particular, the source of the report in this case can be easily made High - not apply to those who members of a
available considering that the same is necessary for compliance with certain voltage/pole are team
governmental requirements. not exposed to the risk
 Collectors - no need for cash bond, no the consumers through an increase in the rate of electricity. This is a non sequitur.
need to reduce quota and The Court cannot be threatened with such a misleading argument. An increase in
MAPL the prices of electric current needs the approval of the appropriate regulatory
government agency and does not automatically result from a mere increase in the
wages of petitioner's employees. Besides, this argument presupposes that
exclude confidential petitioner is capable of meeting a wage increase. The All Asia Capital report upon
CBU - include
employees which the Union relies to support its position regarding the wage issue cannot be
an accurate basis and conclusive determinant of the rate of wage increase. Section
maintenance of 45 of Rule 130 Rules of Evidence provides:
Union security - closed shop
membership
Commercial lists and the like. — Evidence of statements of matters of interest to
persons engaged in an occupation contained in a list, register, periodical, or other
Contracting out - no need to consult union consult first published compilation is admissible as tending to prove the truth of any relevant
matter so stated if that compilation is published for use by persons engaged in
existing terms and that occupation and is generally used and relied upon by them therein.
All benefits - all terms
conditions
Under the afore-quoted rule, statement of matters contained in a periodical, may
be admitted only "if that compilation is published for use by persons engaged in
Dec. 28, 1996-Dec. 27, that occupation and is generally used and relied upon by them therein." As
Retroactivity - from Dec. 1, 1995
199(9) correctly held in our Decision dated January 27, 1999, the cited report is a mere
newspaper account and not even a commercial list. At most, it is but an analysis
Dissatisfied with the Decision, some alleged members of private respondent or opinion which carries no persuasive weight for purposes of this case as no
union (Union for brevity) filed a motion for intervention and a motion for sufficient figures to support it were presented. Neither did anybody testify to its
reconsideration of the said Decision. A separate intervention was likewise made accuracy. It cannot be said that businessmen generally rely on news items such
by the supervisor's union (FLAMES2) of petitioner corporation alleging that it as this in their occupation. Besides, no evidence was presented that the
has bona fide legal interest in the outcome of the case.3 The Court required the publication was regularly prepared by a person in touch with the market and that
"proper parties" to file a comment to the three motions for reconsideration but the it is generally regarded as trustworthy and reliable. Absent extrinsic proof of their
Solicitor-General asked that he be excused from filing the comment because the accuracy, these reports are not admissible.6 In the same manner, newspapers
"petition filed in the instant case was granted" by the Court.4 Consequently, containing stock quotations are not admissible in evidence when the source of the
petitioner filed its own consolidated comment. An "Appeal Seeking Immediate reports is available.7 With more reason, mere analyses or projections of such
Reconsideration" was also filed by the alleged newly elected president of the reports cannot be admitted. In particular, the source of the report in this case can
Union.5 Other subsequent pleadings were filed by the parties and intervenors. be easily made available considering that the same is necessary for compliance
with certain governmental requirements.
The issues raised in the motions for reconsideration had already been passed upon
by the Court in the January 27, 1999 decision. No new arguments were presented Nonetheless, by petitioner's own allegations, its actual total net income for 1996
for consideration of the Court. Nonetheless, certain matters will be considered was P5.1 billion.8 An estimate by the All Asia financial analyst stated that
herein, particularly those involving the amount of wages and the retroactivity of petitioner's net operating income for the same year was about P5.7 billion, a
the Collective Bargaining Agreement (CBA) arbitral awards. figure which the Union relies on to support its claim. Assuming without admitting
the truth thereof, the figure is higher than the P4.171 billion allegedly suggested
Petitioner warns that if the wage increase of P2,200.00 per month as ordered by by petitioner as its projected net operating income. The P5.7 billion which was
the Secretary is allowed, it would simply pass the cost covering such increase to
the Secretary's basis for granting the P2,200.00 is higher than the actual net
income of P5.1 billion admitted by petitioner. It would be proper then to increase
this Court's award of P1,900.00 to P2,000.00 for the two years of the CBA award.
For 1992, the agreed CBA wage increase for rank-and-file was P1,400.00 and
was reduced to P1,350.00; for 1993; further reduced to P1,150.00 for 1994. For
supervisory employees, the agreed wage increase for the years 1992-1994 are
P1,742.50, P1,682.50 and P1,442.50, respectively. Based on the foregoing
figures, the P2,000.00 increase for the two-year period awarded to the rank-and-
file is much higher than the highest increase granted to supervisory
employees.9 As mentioned in the January 27, 1999 Decision, the Court does "not
seek to enumerate in this decision the factors that should affect wage
determination" because collective bargaining disputes particularly those affecting
the national interest and public service "requires due consideration and proper
balancing of the interests of the parties to the dispute and of those who might be
affected by the dispute."10 The Court takes judicial notice that the new amounts
granted herein are significantly higher than the weighted average salary currently
enjoyed by other rank-and-file employees within the community. It should be
noted that the relations between labor and capital is impressed with public interest
which must yield to the common good.11 Neither party should act oppressively
against the other or impair the interest or convenience of the public.12Besides,
matters of salary increases are part of management prerogative. 13
On the retroactivity of the CBA arbitral award, it is well to recall that this petition
had its origin in the renegotiation of the parties' 1992-1997 CBA insofar as the
last two-year period thereof is concerned. When the Secretary of Labor assumed
jurisdiction and granted the arbitral awards, there was no question that these
arbitral awards were to be given retroactive effect. However, the parties dispute
the reckoning period when retroaction shall commence. Petitioner claims that the
award should retroact only from such time that the Secretary of Labor rendered
the award, invoking the 1995 decision in Pier 8 case 14 where the Court,
citing Union of Filipino Employees v. NLRC,15 said:
The assailed resolution which incorporated the CBA to be signed by the parties
was promulgated on June 5, 1989, the expiry date of the past CBA. Based on the
provision of Section 253-A, its retroactivity should be agreed upon by the parties.
But since no agreement to that effect was made, public respondent did not abuse
its discretion in giving the said CBA a prospective effect. The action of the public
respondent is within the ambit of its authority vested by existing law.
On the other hand, the Union argues that the award should retroact to such time
granted by the Secretary, citing the 1993 decision of St. Luke's. 16
Finally, the effectivity of the Order of January 28, 1991, must retroact to the date
of the expiration of the previous CBA, contrary to the position of petitioner.
Under the circumstances of the case, Article 253-A cannot be properly applied to
herein case. As correctly stated by public respondent in his assailed Order of
April 12, 1991 dismissing petitioner's Motion for Reconsideration —
Anent the alleged lack of basis for the retroactivity provisions awarded; we would
stress that the provision of law invoked by the Hospital, Article 253-A of the
Labor Code, speaks of agreements by and between the parties, and not arbitral
awards . . .
Therefore, in the absence of a specific provision of law prohibiting retroactivity
of the effectivity of arbitral awards issued by the Secretary of Labor pursuant to
Article 263(g) of the Labor Code, such as herein involved, public respondent is
deemed vested with plenary and discretionary powers to determine the effectivity
thereof.
In the 1997 case of Mindanao Terminal,17 the Court applied the St. Luke's
doctrine and ruled that:
In St. Luke's Medical Center v. Torres, a deadlock also developed during the
CBA negotiations between management and the union. The Secretary of Labor
assumed jurisdiction and ordered the retroaction of the CBA to the date of
expiration of the previous CBA. As in this case, it was alleged that the Secretary
of Labor gravely abused its discretion in making his award retroactive. In
dismissing this contention this Court held:
Therefore, in the absence of a specific provision of law prohibiting retroactive of
the effectivity of arbitral awards issued by the Secretary of Labor pursuant to
Article 263(g) of the Labor Code, such as herein involved, public respondent is
deemed vested with plenary and discretionary powers to determine the effectivity
thereof.
The Court in the January 27, 1999 Decision, stated that the CBA shall be
"effective for a period of 2 years counted from December 28, 1996 up to
December 27, 1999." Parenthetically, this actually covers a three-year period.
Labor laws are silent as to when an arbitral award in a labor dispute where the
Secretary had assumed jurisdiction by virtue of Article 263 (g) of the Labor Code
shall retroact. In general, a CBA negotiated within six months after the expiration
of the existing CBA retroacts to the day immediately following such date and if
agreed thereafter, the effectivity depends on the agreement of the parties. 18 On
the other hand, the law is silent as to the retroactivity of a CBA arbitral award or
that granted not by virtue of the mutual agreement of the parties but by
intervention of the government. Despite the silence of the law, the Court rules
herein that CBA arbitral awards granted after six months from the expiration of
the last CBA shall retroact to such time agreed upon by both employer and the
employees or their union. Absent such an agreement as to retroactivity, the award
shall retroact to the first day after the six-month period following the expiration
of the last day of the CBA should there be one. In the absence of a CBA, the
Secretary's determination of the date of retroactivity as part of his discretionary
powers over arbitral awards shall control.
It is true that an arbitral award cannot per se be categorized as an agreement
voluntarily entered into by the parties because it requires the interference and
imposing power of the State thru the Secretary of Labor when he assumes
jurisdiction. However, the arbitral award can be considered as an approximation
of a collective bargaining agreement which would otherwise have been entered
into by the parties.19 The terms or periods set forth in Article 253-A pertains
explicitly to a CBA. But there is nothing that would prevent its application by
analogy to an arbitral award by the Secretary considering the absence of an
applicable law. Under Article 253-A: "(I)f any such agreement is entered into
beyond six months, the parties shall agree on the duration of retroactivity
thereof." In other words, the law contemplates retroactivity whether the
agreement be entered into before or after the said six-month period. The
agreement of the parties need not be categorically stated for their acts may be
considered in determining the duration of retroactivity. In this connection, the
Court considers the letter of petitioner's Chairman of the Board and its President
addressed to their stockholders, which states that the CBA "for the rank-and-file
employees covering the period December 1, 1995 to November 30, 1997 is still
with the Supreme Court,"20 as indicative of petitioner's recognition that the CBA
award covers the said period. Earlier, petitioner's negotiating panel transmitted to
the Union a copy of its proposed CBA covering the same period inclusive. 21 In
addition, petitioner does not dispute the allegation that in the past CBA arbitral
awards, the Secretary granted retroactivity commencing from the period
immediately following the last day of the expired CBA. Thus, by petitioner's own
actions, the Court sees no reason to retroact the subject CBA awards to a different
date. The period is herein set at two (2) years from December 1, 1995 to
November 30, 1997.
On the allegation concerning the grant of loan to a cooperative, there is no merit
in the union's claim that it is no different from housing loans granted by the
employer. The award of loans for housing is justified because it pertains to a basic
necessity of life. It is part of a privilege recognized by the employer and allowed
by law. In contrast, providing seed money for the establishment of the employee's
cooperative is a matter in which the employer has no business interest or legal
obligation. Courts should not be utilized as a tool to compel any person to grant
loans to another nor to force parties to undertake an obligation without
justification. On the contrary, it is the government that has the obligation to render
financial assistance to cooperatives and the Cooperative Code does not make it
an obligation of the employer or any private individual. 22
Anent the 40-day union leave, the Court finds that the same is a typographical
error. In order to avoid any confusion, it is herein declared that the union leave is
only thirty (30) days as granted by the Secretary of Labor and affirmed in the
Decision of this Court.
The added requirement of consultation imposed by the Secretary in cases of
contracting out for six (6) months or more has been rejected by the Court. Suffice
it to say that the employer is allowed to contract out services for six months or
more. However, a line must be drawn between management prerogatives
regarding business operations per se and those which affect the rights of
employees, and in treating the latter, the employer should see to it that its
employees are at least properly informed of its decision or modes of action in
order to attain a harmonious labor-management relationship and enlighten the
workers concerning their rights.23Hiring of workers is within the employer's
inherent freedom to regulate and is a valid exercise of its management prerogative
subject only to special laws and agreements on the matter and the fair standards
of justice.24 The management cannot be denied the faculty of promoting
efficiency and attaining economy by a study of what units are essential for its
operation. It has the ultimate determination of whether services should be
performed by its personnel or contracted to outside agencies. While there should
be mutual consultation, eventually deference is to be paid to what management
decides.25 Contracting out of services is an exercise of business judgment or
management prerogative.26 Absent proof that management acted in a malicious
or arbitrary manner, the Court will not interfere with the exercise of judgment by
an employer.27 As mentioned in the January 27, 1999 Decision, the law already
sufficiently regulates this matter.28 Jurisprudence also provides adequate
limitations, such that the employer must be motivated by good faith and the
contracting out should not be resorted to circumvent the law or must not have
been the result of malicious or arbitrary actions. 29These are matters that may be
categorically determined only when an actual suit on the matter arises.

WHEREFORE, the motion for reconsideration is PARTIALLY GRANTED and

the assailed Decision is MODIFIED as follows: (1) the arbitral award shall
retroact from December 1, 1995 to November 30, 1997; and (2) the award of
wage is increased from the original amount of One Thousand Nine Hundred
Pesos (P1,900.00) to Two Thousand Pesos (P2,000.00) for the years 1995 and
1996. This Resolution is subject to the monetary advances granted by petitioner
to its rank-and-file employees during the pendency of this case assuming such
advances had actually been distributed to them. The assailed Decision is
AFFIRMED in all other respects.

SO ORDERED.
G.R. Nos. 115338-39. September 16, 1997.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LANIE ORTIZ-
MIYAKE, accused-appellant.
Labor Law; Criminal Law; Illegal Recruitment; Words and Phrases;
“Recruitment and Placement,” Defined.—The Labor Code defines recruitment
and placement as “x x x any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring or procuring workers and includes referrals,
contract services, promising or advertising for employment, locally or abroad,
whether for profit or not x x x.”
Same; Same; Same; Republic Act No. 8042 (Migrant Workers and Overseas
Filipinos Act of 1995); Ex Post Facto Laws; R.A. No. 8042 does not apply to an
offense committed before its effectivity.—During the pendency of this case,
Republic Act No. 8042, otherwise known as the “Migrant Workers and Overseas
Filipinos Act of 1995,” was passed increasing the penalty for illegal recruitment.
This new law, however, does not apply to the instant case because the offense
charged herein was committed in 1992, before the effectivity of said Republic
Act No. 8042. Hence, what are applicable are the aforecited Labor Code
provisions.
Same; Same; Same; In illegal recruitment cases, the number of persons
victimized is determinative.—It is evident that in illegal recruitment cases, the
number of persons victimized is determinative. Where illegal recruitment is
committed against a lone victim, the accused may be convicted of simple illegal
recruitment which is punishable with a lower penalty under Article 39(c) of the
Labor Code. Corollarily, where the offense is committed against three or more
persons, it is qualified to illegal recruitment in large scale which provides a higher
penalty under Article 39(a) of the same Code.
Same; Same; Same; Right of Confrontation; The right of confrontation has two
purposes: first, to secure the opportunity of cross-examination; and, second, to
allow the judge to observe the deportment and appearance of the witness while
testifying.—Under the aforecited rules, the accused in a criminal case is
guaranteed the right of confrontation. Such right has two purposes: first, to secure
the opportunity of cross-examination; and, second, to allow the judge to observe
the deportment and appearance of the witness while testifying.
Same; Same; Same; Same; Hearsay Rule; The right of confrontation is not
absolute as it is recognized that it is sometimes impossible to recall or produce a
witness who has already testified in a previous proceeding, in which event his
previous testimony is made admissible as a distinct piece of evidence, by way of
exception to the hearsay rule.—This right, however, is not absolute as it is
recognized that it is sometimes impossible to recall or produce a witness who has
already testified in a previous proceeding, in which event his previous testimony
is made admissible as a distinct piece of evidence, by way of exception to the
hearsay rule. The previous testimony is made admissible because it makes the
administration of justice orderly and expeditious.
Same; Same; Same; Same; Same; Judgments; The exception to the right of
confrontation contemplated by law covers only the utilization of testimonies of
absent witnesses made in previous proceedings, and does not include utilization
of previous decisions or judgments.—Under these rules, the adoption by the
Makati trial court of the facts stated in the decision of the Parañaque trial court
does not fall under the exception to the right of confrontation as the exception
contemplated by law covers only the utilization of testimonies of absent
witnesses made in previous proceedings, and does not include utilization of
previous decisions or judgments.
Same; Same; Same; Same; Same; Same; A previous decision or judgment, while
admissible in evidence, may only prove that an accused was previously convicted
of a crime—it may not be used to prove that the accused is guilty of a crime
charged in a subsequent case.—A previous decision or judgment, while
admissible in evidence, may only prove that an accused was previously convicted
of a crime. It may not be used to prove that the accused is guilty of a crime
charged in a subsequent case, in lieu of the requisite evidence proving the
commission of the crime, as said previous decision is hearsay. To sanction its
being used as a basis for conviction in a subsequent case would constitute a
violation of the right of the accused to confront the witnesses against him.
Same; Same; Same; Same; Same; Every conviction must be based on the findings
of fact made by a trial court according to its appreciation of the evidence before
it—a conviction may not be based merely on the findings of fact of another
court.—As earlier stated, the Makati court’s utilization of and reliance on the
previous decision of the Parañaque court must be rejected. Every conviction must
be based on the findings of fact made by a trial court according to its appreciation
of the evidence before it. A conviction may not be based merely on the findings
of fact of another court, especially where what is presented is only its decision
sans the transcript of the testimony of the witnesses who testified therein and
upon which the decision is based.
Same; Same; Same; Words and Phrases; “Simple Illegal Recruitment” and
“Illegal Recruitment in Large Scale,” Distinguished.—The distinction between
simple illegal recruitment and illegal recruitment in large scale are emphasized
by jurisprudence. Simple illegal recruitment is committed where a person: (a)
undertakes any recruitment activity defined under Article 13(b) or any prohibited
practice enumerated under Articles 34 and 38 of the Labor Code; and (b) does
not have a license or authority to lawfully engage in the recruitment and
placement of workers. On the other hand, illegal recruitment in large scale further
requires a third element, that is, the offense is committed against three or more
persons, individually or as a group.
Same; Same; Same; Evidence; In illegal recruitment in large scale, while the law
does not require that at least three victims testify at the trial, it is necessary that
there is sufficient evidence proving that the offense was committed against three
or more persons.—In illegal recruitment in large scale, while the law does not
require that at least three victims testify at the trial, it is necessary that there is
sufficient evidence proving that the offense was committed against three or more
persons. This Court agrees with the trial court that the evidence presented
sufficiently proves that illegal recruitment was committed by appellant against
Marasigan, but the same conclusion cannot be made as regards Generillo and Del
Rosario as well.
Same; Same; Same; Estafa; Double Jeopardy; Conviction under the Labor Code
for illegal recruitment does not preclude punishment under the Revised Penal
Code for the felony of estafa.—The Court likewise affirms the conviction of
appellant for estafa which was committed against Marasigan. Conviction under
the Labor Code for illegal recruitment does not preclude punishment under the
Revised Penal Code for the felony of estafa. This Court is convinced that the
prosecution proved beyond reasonable doubt that appellant violated Article
315(2)(a) of the Revised Penal Code. People vs. Ortiz-Miyake, 279 SCRA 180,
G.R. Nos. 115338-39 September 16, 1997
Accused-appellant Lanie Ortiz-Miyake was charged with illegal recruitment in
large scale in the Regional Trial Court of Makati on a complaint initiated by
Elenita Marasigan, Imelda Generillo and Rosamar del Rosario. In addition, she
was indicted for estafa by means of false pretenses in the same court, the offended
party being Elenita Marasigan alone.
The information in the charge of illegal recruitment in large scale in Criminal
Case No. 92-6153 reads as follows:
That in or about the period comprised from June 1992 to August 1992, in the
Municipality of Paraaque, Metro Manila, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, falsely representing herself
to have the capacity and power to contract, enlist and recruit workers for
employment abroad did then and there willfully, unlawfully, and feloniously
collect for a fee, recruit and promise employment/job placement abroad to the
following persons, to wit: 1) Rosamar del Rosario; 2) Elenita Marasigan; 3)
Imelda Generillo, without first securing the required license or authority from the
Department of Labor and Employment, thus amounting to illegal recruitment in
large scale, in violation of the aforecited law. 1
The information in the charge for estafa in Criminal Case No. 92-6154 alleges:
That in or about or sometime in the month of August, 1992, in the Municipality
of Paraaque, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, by means of false pretenses
executed prior to or simultaneously with the commission of the fraud, falsely
pretending to have the capacity and power to send complainant Elenita Marasigan
to work abroad, succeeded in inducing the latter to give and deliver to her the
total sum of P23,000.00, the accused knowing fully well that the said
manifestations and representation are false and fraudulent and calculated only to
deceive the said complainant to part with her money, and, once in possession
thereof, the said accused did then and there willfully, unlawfully and feloniously
appropriate, apply and convert the same to her own personal use and benefit, to
the damage and prejudice of the said Elenita Marasigan, in the aforementioned
amount of P23,000.00. 2
Upon arraignment, appellant pleaded not guilty to the charges and the cases were
tried jointly in Branch 145 of the Regional Trial Court of Makati.
Of the three complainants in the case for illegal recruitment in large scale,
Marasigan was the only one who testified at the trial. The two other complainants,
Generillo and Del Rosario, were unable to testify as they were then abroad.
Marasigan testified that she was a 32 year-old unmarried sales representative in
1992 when she was introduced to appellant by her co-complainants. 3Appellant
promised Marasigan a job as a factory worker in Taiwan for a P5,000.00 fee. At
that time, Marasigan had a pending application for overseas employment pending
in a recruitment agency. Realizing that the fee charged by appellant was much
lower than that of the agency, Marasigan withdrew her money from the agency
and gave it to appellant. 4
Marasigan paid appellant P5,000.00, but she was later required to make
additional payments. By the middle of the year, she had paid a total of P23,000.00
on installment basis. 5 Save for two receipts, 6 Marasigan was not issued receipts
for the foregoing payments despite her persistence in requesting for the same.
Marasigan was assured by appellant that obtaining a Taiwanese visa would not
be a problem. 7 She was also shown a plane ticket to Taiwan, allegedly issued in
her name. 8 Appellant issued Marasigan a photocopy of her plane ticket, 9 the
original of which was promised to be given to her before her departure. 10
Marasigan was never issued a visa. 11 Neither was she given the promised plane
ticket. Unable to depart for Taiwan, she went to the travel agency which issued
the ticket and was informed that not only was she not booked by appellant for the
alleged flight, but that the staff in the agency did not even know appellant.
Later, Marasigan proceeded to the supposed residence of appellant and was
informed that appellant did not live there. 12 Upon verification with the Philippine
Overseas Employment Administration (POEA), it was revealed that appellant
was not authorized to recruit workers for overseas employment. 13 Marasigan
wanted to recover her money but, by then, appellant could no longer be located.
The prosecution sought to prove that Generillo and Del Rosario, the two other
complainants in the illegal recruitment case, were also victimized by appellant.
In lieu of their testimonies, the prosecution presented as witnesses Lilia
Generillo, the mother of Imelda Generillo, and Victoria Amin, the sister of Del
Rosario.
Lilia Generillo claimed that she gave her daughter P8,000.00 to cover her
application for placement abroad which was made through appellant. 14 Twice,
she accompanied her daughter to the residence of appellant so that she could meet
her; however, she was not involved in the transactions between her daughter and
appellant. 15 Neither was she around when payments were made to appellant.
Imelda Generillo was unable to leave for abroad and Lilia Generillo concluded
that she had become a victim of illegal recruitment.
The prosecution presented Victoria Amin, the sister of Rosamar Del Rosario, to
show that the latter was also a victim of illegal recruitment. Victoria Amin
testified that appellant was supposed to provide her sister a job abroad. She
claimed that she gave her sister a total of P10,000.00 which was intended to cover
the latters processing fee. 16
Victoria Amin never met appellant and was not around when her sister made
payments. She assumed that the money was paid to appellant based on receipts,
allegedly issued by appellant, which her sister showed her. 17 Del Rosario was
unable to leave for abroad despite the representations of appellant. Victoria Amin
claimed that her sister, like Marasigan and Generillo, was a victim of illegal
recruitment.
The final witness for the prosecution was Riza Balberte, 18 a representative of the
POEA, who testified that appellant was neither licensed nor authorized to recruit
workers for overseas employment, POEA certificate certification. 19
Upon the foregoing evidence, the prosecution sought to prove that although two
of the three complainants in the illegal recruitment case were unable to testify,
appellant was guilty of committing the offense against all three complainants and,
therefore, should be convicted as charged.
On the other hand, appellant, who was the sole witness for the defense, denied
that she recruited the complainants for overseas employment and claimed that the
payments made to her were solely for purchasing plane tickets at a discounted
rate as she had connections with a travel agency. 20
She denied that she was paid by Marasigan the amount of P23,000.00, claiming
that she was paid only P8,000.00, as shown by a receipt. She further insisted that,
through the travel agency, 21 she was able to purchase discounted plane tickets
for the complainants upon partial payment of the ticket prices, the balance of
which she guaranteed. According to her, the complainants were supposed to pay
her the balance but because they failed to do so, she was obliged to pay the entire
cost of each ticket.
The evidence presented by the parties were thus contradictory but the trial court
found the prosecutions evidence more credible. On December 17, 1993,
judgment was rendered by said court convicting appellant of both crimes as
charged. 22
In convicting appellant of illegal recruitment in large scale, the lower court
adopted a previous decision of Branch 78 of the Metropolitan Trial Court of
Paraaque as a basis for the judgment. Said previous decision was a conviction for
estafa promulgated on July 26, 1993, 23rendered in Criminal Cases Nos. 74852-
53, involving the same circumstances in the instant case, wherein complainants
Generillo and Del Rosario charged appellant with two counts of estafa. This
decision was not appealed and had become final and executory.
In thus convicting appellant in the illegal recruitment case, the decision therein
of the Regional Trial Court stated that the facts in the foregoing estafa cases were
the same as those in the illegal recruitment case before it. It, therefore, adopted
the facts and conclusions established in the earlier decision as its own findings of
facts and as its rationale for the conviction in the case before it. 24
In Criminal Case No. 92-6153, the Makati court sentenced appellant to serve the
penalty of life imprisonment for illegal recruitment in large scale, as well as to
pay a fine of P100,000.00. Appellant was also ordered to reimburse the
complainants the following payments made to her, viz.: (a)
Marasigan, P23,000.00; (b) Generillo, P2,500.00; and (c) Del
Rosario, P2,500.00.
In the same judgment and for the estafa charged in Criminal Case No. 92-6154,
the Makati court sentenced appellant to suffer imprisonment of four (4) years and
two (2) months of prision correccional, as minimum, to eight (8) years of prision
mayor, as maximum, and to pay the costs.
In the instant petition, appellant seeks the reversal of the foregoing judgment of
the Regional Trial Court of Makati convicting her of illegal recruitment in large
scale and estafa. Specifically, she insists that the trial court erred in convicting
her of illegal recruitment in large scale as the evidence presented was insufficient.
Moreover, appellant claims that she is not guilty of acts constituting illegal
recruitment, in large scale or otherwise, because contrary to the findings of the
trial court, she did not recruit the complainants but merely purchased plane tickets
for them. Finally, she contends that in convicting her of estafa, the lower court
erred as she did not misappropriate the money paid to her by Marasigan, hence
there was no damage to the complainants which would substantiate the
conviction.
We uphold the finding that appellant is guilty but we are, compelled to modify
the judgment for the offenses she should be convicted of and the corresponding
penalties therefor.
Appellant maintains that her conviction for illegal recruitment in large scale is
erroneous. It is her view that in the prosecution of a case for such offense, at least
three complainants are required to appear as witnesses in the trial and, since
Marasigan was the only complainant presented as a witness, the conviction was
groundless.
The Solicitor General also advocates the conviction of appellant for simple illegal
recruitment which provides a lower penalty. The Court finds the arguments of
the Solicitor General meritorious and adopts his position.
The Labor Code defines recruitment and placement as x x x any act of canvassing,
enlisting, contracting transporting, utilizing, hiring or procuring workers and
includes referrals, contract services, promising or advertising for employment,
locally or abroad, whether for profit or not x x x. 25
Illegal recruitment is likewise defined and made punishable under the Labor
Code, thus:
Art. 38. Illegal Recruitment. -
(a) Any recruitment activities, including the prohibited practices
enumerated under Article 34 of this Code, to be undertaken by non-
licensees or non-holders of authority shall be deemed illegal and
punishable under Article 39 of this Code. x x x.
(b) Illegal recruitment when committed by a syndicate or in large scale
shall be considered an offense involving economic sabotage and shall
be penalized in accordance with Article 39 hereof.
x x x Illegal recruitment is deemed committed in large scale if
committed against three (3) or more persons individually or as a group.
Art. 39. Penalties. -
(a) The penalty of life imprisonment and a fine of One Hundred
Thousand Pesos (P100,000.00) shall be imposed if Illegal Recruitment
constitutes economic sabotage as defined herein;
xxx
(c) Any person who is neither a licensee nor a holder of authority under
this Title found violating any provision thereof or its implementing rules
and regulations shall, upon conviction thereof, suffer the penalty of
 imprisonment of not less than four (4) years nor more than eight (8)
years or a fine of not less than P20,000.00 nor more than P100,000.00,
or both such imprisonment and fine, at the discretion of the court. x x x
During the pendency of this case, Republic Act No. 8042, otherwise known as
the Migrant Workers and Overseas Filipinos Act of 1995, was passed increasing
the penalty for illegal recruitment. This new law, however, does not apply to the
instant case because the offense charged herein was committed in 1992, before
the effectivity of said Republic Act No. 8042. Hence, what are applicable are the
aforecited Labor Code provisions.
It is evident that in illegal recruitment cases, the number of persons victimized is
determinative. Where illegal recruitment is committed against a lone victim, the
accused may be convicted of simple illegal recruitment which is punishable with
a lower penalty under Article 39(c) of the Labor Code. Corollarily, where the
offense is committed against three or more persons, it is qualified to illegal
recruitment in large scale which provides a higher penalty under Article 39(a) of
the same Code.
The position of the Solicitor General is that the conviction of appellant should be
merely for the lesser offense of simple illegal recruitment. He submits that the
Regional Trial Court of Makati erred in convicting appellant of illegal
recruitment in large scale because the conviction was based on an earlier decision
of the Metropolitan Trial Court of Paraaque where appellant was found guilty of
estafa committed against Generillo and Del Rosario.
It is argued that the Makati court could not validly adopt the facts embodied in
the decision of the Paraaque court to show that illegal recruitment was committed
against Generillo and Del Rosario as well. Illegal recruitment was allegedly
proven to have been committed against only one person, particularly, Elenita
Marasigan. Appellant, therefore, may only be held guilty of simple illegal
recruitment and not of such offense in large scale.
He further submits that the adoption by the Makati court of the facts in the
decision of the Paraaque court for estafa to constitute the basis of the subsequent
conviction for illegal recruitment is erroneous as it is a violation of the right of
appellant to confront the witnesses, that is, complainants Generillo and Del
Rosario, during trial before it. He cites the pertinent provision of Rule 115 of the
Rules of Court, to wit:
Section 1. Rights of accused at the trial. In all criminal prosecutions, the accused
shall be entitled:
xxx
(f) To confront and cross-examine the witnesses against him at the trial. Either
party may utilize as part of its evidence the testimony of a witness who is
deceased, out of or cannot, with due diligence be found in the Philippines,
unavailable or otherwise unable to testify, given in another case or proceeding,
judicial or administrative, involving the same parties and subject matter, the
adverse party having had the opportunity to cross-examine him.
xxx
It will be noted that the principle embodied in the foregoing rule is likewise found
in the following provision of Rule 130:
Section 47. Testimony or deposition at a former proceeding. - The testimony or
deposition of a witness deceased or unable to testify, given in a former case or
proceeding, judicial or administrative, involving the same parties and subject
matter, may be given in evidence against the adverse party who had the
opportunity to cross-examine him.
Under the aforecited rules, the accused in a criminal case is guaranteed the right
of confrontation. Such right has two purposes: first, to secure the opportunity of
cross-examination; and, second, to allow the judge to observe the deportment and
appearance of the witness while testifying. 27chanroblesvirtuallawlibrary
This right, however, is not absolute as it is recognized that it is sometimes
impossible to recall or produce a witness who has already testified in a previous
proceeding, in which event his previous testimony is made admissible as a
distinct piece of evidence, by way of exception to the hearsay rule. 28 The
previous testimony is made admissible because it makes the administration of
justice orderly and expeditious. 29
Under these rules, the adoption by the Makati trial court of the facts stated in
the decision of the Paraaque trial court does not fall under the exception to the
right of confrontation as the exception contemplated by law covers only the
utilization of testimonies of absent witnesses made in previous proceedings, and
does not include utilization of previous decisions or judgments.
In the instant case, the prosecution did not offer the testimonies made by
complainants Generillo and Del Rosario in the previous estafa case. Instead, what
was offered, admitted in evidence, and utilized as a basis for the conviction in the
case for illegal recruitment in large scale was the previous decision in the estafa
case.
A previous decision or judgment, while admissible in evidence, may only prove
that an accused was previously convicted of a crime. 30 It may not be used to
prove that the accused is guilty of a crime charged in a subsequent case, in lieu
of the requisite evidence proving the commission of the crime, as said previous
decision is hearsay. To sanction its being used as a basis for conviction in a
subsequent case would constitute a violation of the right of the accused to
confront the witnesses against him.
As earlier stated, the Makati courts utilization of and reliance on the previous
decision of the Paraaque court must be rejected. Every conviction must be based
on the findings of fact made by a trial court according to its appreciation of the
evidence before it. A conviction may not be based merely on the findings of fact
of another court, especially where what is presented is only its decision sans the
transcript of the testimony of the witnesses who testified therein and upon which
the decision is based.
Furthermore, this is not the only reason why appellant may not be held liable for
illegal recruitment in large scale. An evaluation of the evidence presented before
the trial court shows us that, apart from the adopted decision in the previous estafa
case, there was no other basis for said trial courts conclusion that illegal
recruitment in large scale was committed against all three complainants.
The distinction between simple illegal recruitment and illegal recruitment in large
scale are emphasized by jurisprudence. Simple illegal recruitment is committed
where a person: (a) undertakes any recruitment activity defined under Article
13(b) or any prohibited practice enumerated under Articles 34 and 38 of the Labor
Code; and (b) does not have a license or authority to lawfully engage in the
recruitment and placement of workers. 31On the other hand, illegal recruitment in
large scale further requires a third element, that is, the offense is committed
against three or more persons, individually or as a group. 32
In illegal recruitment in large scale, while the law does not require that at least
three victims testify at the trial, it is necessary that there is sufficient evidence
proving that the offense was committed against three or more persons. This Court
agrees with the trial court that the evidence presented sufficiently proves that
illegal recruitment was committed by appellant against Marasigan, but the same
conclusion cannot be made as regards Generillo and Del Rosario as well.
The testimonies of Generillos mother, Lilia Generillo, and Del Rosarios sister,
Victoria Amin, reveal that these witnesses had no personal knowledge of the
actual circumstances surrounding the charges filed by Generillo and Del Rosario
for illegal recruitment in large scale. Neither of these witnesses was privy to the
transactions between appellant and each of the two complainants. The witnesses
claimed that appellant illegally recruited Generillo and Del Rosario. Nonetheless,
we find their averments to be unfounded as they were not even present when
Generillo and Del Rosario negotiated with and made payments to appellant.
For insufficiency of evidence and in the absence of the third element of illegal
recruitment in large scale, particularly, that the offense is committed against three
or more persons, we cannot affirm the conviction for illegal recruitment in large
scale. Nonetheless, we agree with the finding of the trial court that appellant
illegally recruited Marasigan, for which she must be held liable for the lesser
offense of simple illegal recruitment.
Appellants defense that she did not recruit Marasigan but merely purchased a
plane ticket for her is belied by the evidence as it is undeniable that she
represented to Marasigan that she had the ability to send people to work as factory
workers in Taiwan. Her pretext that the fees paid to her were merely payments
for a plane ticket is a desperate attempt to exonerate herself from the charges and
cannot be sustained.
Furthermore, no improper motive may be attributed to Marasigan in charging
appellant. The fact that Marasigan was poor does not make her so heartless as to
contrive a criminal charge against appellant. She was a simple woman with big
dreams and it was appellants duplicity which reduced those dreams to naught.
Marasigan had no motive to testify falsely against appellant except to tell the
truth. 33chanroblesvirtuallawlibrary
Besides, if there was anyone whose testimony needed corroboration, it was
appellant as there was nothing in her testimony except the bare denial of the
accusations. 34 If appellant really intended to purchase a plane ticket and not to
recruit Marasigan, she should have presented evidence to support this claim.
Also, in her testimony, appellant named an employee in the travel agency who
was allegedly her contact person for the purchase of the ticket. She could have
presented that person, or some other employee of the agency, to show that the
transaction was merely for buying a ticket. Her failure to do the foregoing acts
belies her pretensions.
The Court likewise affirms the conviction of appellant for estafa which was
committed against Marasigan. Conviction under the Labor Code for illegal
recruitment does not preclude punishment under the Revised Penal Code for the
felony of estafa. 35 This Court is convinced that the prosecution proved beyond
reasonable doubt that appellant violated Article 315(2)(a) of the Revised Penal
Code which provides that estafa is committed:
2. By means of any of the following false pretenses or fraudulent acts executed
prior to or simultaneously with the commission of the fraud:
(a) By using fictitious name or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions, or by
means of other similar deceits.
The evidence is clear that in falsely pretending to possess power to deploy
persons for overseas placement, appellant deceived the complainant into
believing that she would provide her a job in Taiwan. Her assurances made
Marasigan exhaust whatever resources she had to pay the placement fee required
in exchange for the promised job. The elements of deceit and damage for this
form of estafa are indisputably present, hence the conviction for estafa in
Criminal Case No. 92-6154 should be affirmed.
Under the Revised Penal Code, an accused found guilty of estafa shall be
sentenced to:
x x x The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000 but does
not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty
provided in this paragraph shall be imposed in its maximum period, adding one
year for each additional 10,000 pesos x x x. 36
The amount involved in the estafa case is P23,000.00. Applying the
Indeterminate Sentence Law, the maximum penalty shall be taken from the
maximum period of the foregoing basic penalty, specifically, within the range of
imprisonment from six (6) years, eight (8) months and twenty-one (21) days to
eight (8) years.
On the other hand, the minimum penalty of the indeterminate sentence shall be
within the range of the penalty next lower in degree to that provided by law,
without considering the incremental penalty for the amount in excess
of P22,000.00. 37 That penalty immediately lower in degree is prison
correccional in its minimum and medium periods, with a duration of six (6)
months and one (1) day to four (4) years and two (2) months. On these
considerations, the trial court correctly fixed the minimum and maximum terms
of the indeterminate sentence in the estafa case.
While we must be vigilant and should punish, to the fullest extent of the law,
those who prey upon the desperate with empty promises of better lives, only to
feed on their aspirations, we must not be heedless of the basic rule that a
conviction may be sustained only where it is for the correct offense and the
burden of proof of the guilt of the accused has been met by the prosecution.
WHEREFORE, the judgment of the court a quo finding accused-appellant
Lanie Ortiz-Miyake guilty beyond reasonable doubt of the crimes of illegal
recruitment in large scale (Criminal Case No. 92-6153) and estafa (Criminal Case
No. 92-6154) is hereby MODIFIED, as follows:
1) Accused-appellant is declared guilty beyond reasonable doubt of simple illegal
recruitment, as defined in Article 38(a) of the Labor Code, as amended. She is
hereby ordered to serve an indeterminate sentence of four (4) years, as minimum,
to eight (8) years, as maximum, and to pay a fine of P100,000.00.
2) In Criminal Case No. 92-6154 for estafa, herein accused-appellant is ordered
to serve an indeterminate sentence of four (4) years and two (2) months of prision
correccional, as minimum, to eight (8) years of prision mayor, as maximum, and
to reimburse Elenita Marasigan the sum of P23,000.00.
In all other respects, the aforestated judgment is AFFIRMED, with costs against
accused-appellant in both instances.
SO ORDERED.