[G.R. No. 152392.

May 26, 2005]

EXPERTRAVEL & TOURS, INC., petitioner, vs. COURT OF APPEALS and KOREAN AIRLINES, respondents.

DECISION

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) in CA-G.R.
SP No. 61000 dismissing the petition for certiorari and mandamus filed by Expertravel and Tours, Inc.
(ETI).

The Antecedents

Korean Airlines (KAL) is a corporation established and registered in the Republic of South Korea and
licensed to do business in the Philippines. Its general manager in the Philippines is Suk Kyoo Kim, while
its appointed counsel was Atty. Mario Aguinaldo and his law firm.

On September 6, 1999, KAL, through Atty. Aguinaldo, filed a Complaint[2] against ETI with the Regional
Trial Court (RTC) of Manila, for the collection of the principal amount of P260,150.00, plus attorneys fees
and exemplary damages. The verification and certification against forum shopping was signed by Atty.
Aguinaldo, who indicated therein that he was the resident agent and legal counsel of KAL and had
caused the preparation of the complaint.

ETI filed a motion to dismiss the complaint on the ground that Atty. Aguinaldo was not authorized to
execute the verification and certificate of non-forum shopping as required by Section 5, Rule 7 of the
Rules of Court. KAL opposed the motion, contending that Atty. Aguinaldo was its resident agent and was
registered as such with the Securities and Exchange Commission (SEC) as required by the Corporation
Code of the Philippines. It was further alleged that Atty. Aguinaldo was also the corporate secretary of
KAL. Appended to the said opposition was the identification card of Atty. Aguinaldo, showing that he
was the lawyer of KAL.

During the hearing of January 28, 2000, Atty. Aguinaldo claimed that he had been authorized to file the
complaint through a resolution of the KAL Board of Directors approved during a special meeting held on
June 25, 1999. Upon his motion, KAL was given a period of 10 days within which to submit a copy of the
said resolution. The trial court granted the motion. Atty. Aguinaldo subsequently filed other similar
motions, which the trial court granted.

Finally, KAL submitted on March 6, 2000 an Affidavit[3] of even date, executed by its general manager
Suk Kyoo Kim, alleging that the board of directors conducted a special teleconference on June 25, 1999,
which he and Atty. Aguinaldo attended. It was also averred that in that same teleconference, the board
of directors approved a resolution authorizing Atty. Aguinaldo to execute the certificate of non-forum
shopping and to file the complaint. Suk Kyoo Kim also alleged, however, that the corporation had no
written copy of the aforesaid resolution.

On April 12, 2000, the trial court issued an Order[4] denying the motion to dismiss, giving credence to
the claims of Atty. Aguinaldo and Suk Kyoo Kim that the KAL Board of Directors indeed conducted a
teleconference on June 25, 1999, during which it approved a resolution as quoted in the submitted
affidavit.

ETI filed a motion for the reconsideration of the Order, contending that it was inappropriate for the
court to take judicial notice of the said teleconference without any prior hearing. The trial court denied
the motion in its Order[5] dated August 8, 2000.

ETI then filed a petition for certiorari and mandamus, assailing the orders of the RTC. In its comment on
the petition, KAL appended a certificate signed by Atty. Aguinaldo dated January 10, 2000, worded as
follows:

SECRETARYS/RESIDENT AGENTS CERTIFICATE

KNOW ALL MEN BY THESE PRESENTS:

I, Mario A. Aguinaldo, of legal age, Filipino, and duly elected and appointed Corporate Secretary and
Resident Agent of KOREAN AIRLINES, a foreign corporation duly organized and existing under and by
virtue of the laws of the Republic of Korea and also duly registered and authorized to do business in the
Philippines, with office address at Ground Floor, LPL Plaza Building, 124 Alfaro St., Salcedo Village,
Makati City, HEREBY CERTIFY that during a special meeting of the Board of Directors of the Corporation
held on June 25, 1999 at which a quorum was present, the said Board unanimously passed, voted upon
and approved the following resolution which is now in full force and effect, to wit:

RESOLVED, that Mario A. Aguinaldo and his law firm M.A. Aguinaldo & Associates or any of its lawyers
are hereby appointed and authorized to take with whatever legal action necessary to effect the
collection of the unpaid account of Expert Travel & Tours. They are hereby specifically authorized to
prosecute, litigate, defend, sign and execute any document or paper necessary to the filing and
prosecution of said claim in Court, attend the Pre-Trial Proceedings and enter into a compromise
agreement relative to the above-mentioned claim.

IN WITNESS WHEREOF, I have hereunto affixed my signature this 10th day of January, 1999, in the City
of Manila, Philippines.

(Sgd.)

MARIO A. AGUINALDO

Resident Agent

SUBSCRIBED AND SWORN to before me this 10th day of January, 1999, Atty. Mario A. Aguinaldo
exhibiting to me his Community Tax Certificate No. 14914545, issued on January 7, 2000 at Manila,
Philippines.

(Sgd.)

Doc. No. 119; ATTY. HENRY D. ADASA

Page No. 25; Notary Public

Book No. XXIV Until December 31, 2000

Series of 2000. PTR #889583/MLA 1/3/2000[6]

On December 18, 2001, the CA rendered judgment dismissing the petition, ruling that the verification
and certificate of non-forum shopping executed by Atty. Aguinaldo was sufficient compliance with the
Rules of Court. According to the appellate court, Atty. Aguinaldo had been duly authorized by the board
resolution approved on June 25, 1999, and was the resident agent of KAL. As such, the RTC could not be
faulted for taking judicial notice of the said teleconference of the KAL Board of Directors.

ETI filed a motion for reconsideration of the said decision, which the CA denied. Thus, ETI, now the
petitioner, comes to the Court by way of petition for review on certiorari and raises the following issue:

DID PUBLIC RESPONDENT COURT OF APPEALS DEPART FROM THE ACCEPTED AND USUAL COURSE OF
JUDICIAL PROCEEDINGS WHEN IT RENDERED ITS QUESTIONED DECISION AND WHEN IT ISSUED ITS
QUESTIONED RESOLUTION, ANNEXES A AND B OF THE INSTANT PETITION?[7]

The petitioner asserts that compliance with Section 5, Rule 7, of the Rules of Court can be determined
only from the contents of the complaint and not by documents or pleadings outside thereof. Hence, the
trial court committed grave abuse of discretion amounting to excess of jurisdiction, and the CA erred in
considering the affidavit of the respondents general manager, as well as the Secretarys/Resident Agents
Certification and the resolution of the board of directors contained therein, as proof of compliance with
the requirements of Section 5, Rule 7 of the Rules of Court. The petitioner also maintains that the RTC
cannot take judicial notice of the said teleconference without prior hearing, nor any motion therefor.
The petitioner reiterates its submission that the teleconference and the resolution adverted to by the
respondent was a mere fabrication.

The respondent, for its part, avers that the issue of whether modern technology is used in the field of
business is a factual issue; hence, cannot be raised in a petition for review on certiorari under Rule 45 of
the Rules of Court. On the merits of the petition, it insists that Atty. Aguinaldo, as the resident agent and
corporate secretary, is authorized to sign and execute the certificate of non-forum shopping required by
Section 5, Rule 7 of the Rules of Court, on top of the board resolution approved during the
teleconference of June 25, 1999. The respondent insists that technological advances in this time and age
are as commonplace as daybreak. Hence, the courts may take judicial notice that the Philippine Long
Distance Telephone Company, Inc. had provided a record of corporate conferences and meetings
through FiberNet using fiber-optic transmission technology, and that such technology facilitates voice
and image transmission with ease; this makes constant communication between a foreign-based office
and its Philippine-based branches faster and easier, allowing for cost-cutting in terms of travel concerns.
It points out that even the E-Commerce Law has recognized this modern technology. The respondent
posits that the courts are aware of this development in technology; hence, may take judicial notice
thereof without need of hearings. Even if such hearing is required, the requirement is nevertheless
satisfied if a party is allowed to file pleadings by way of comment or opposition thereto.

In its reply, the petitioner pointed out that there are no rulings on the matter of teleconferencing as a
means of conducting meetings of board of directors for purposes of passing a resolution; until and after
teleconferencing is recognized as a legitimate means of gathering a quorum of board of directors, such
cannot be taken judicial notice of by the court. It asserts that safeguards must first be set up to prevent
any mischief on the public or to protect the general public from any possible fraud. It further proposes
possible amendments to the Corporation Code to give recognition to such manner of board meetings to
transact business for the corporation, or other related corporate matters; until then, the petitioner
asserts, teleconferencing cannot be the subject of judicial notice.

The petitioner further avers that the supposed holding of a special meeting on June 25, 1999 through
teleconferencing where Atty. Aguinaldo was supposedly given such an authority is a farce, considering
that there was no mention of where it was held, whether in this country or elsewhere. It insists that the
Corporation Code requires board resolutions of corporations to be submitted to the SEC. Even assuming
that there was such a teleconference, it would be against the provisions of the Corporation Code not to
have any record thereof.

The petitioner insists that the teleconference and resolution adverted to by the respondent in its
pleadings were mere fabrications foisted by the
respondent and its counsel on the RTC, the CA and this Court.

The petition is meritorious.

Section 5, Rule 7 of the Rules of Court provides:

SEC. 5. Certification against forum shopping. The plaintiff or principal party shall certify under oath in
the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed
thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or
filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of
his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action
or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that
the same or similar action or claim has been filed or is pending, he shall report that fact within five (5)
days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice,
unless otherwise provided, upon motion and after hearing. The submission of a false certification or
non-compliance with any of the undertakings therein shall constitute indirect contempt of court,
without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his
counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary
dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative
sanctions.

It is settled that the requirement to file a certificate of non-forum shopping is mandatory[8] and that the
failure to comply with this requirement cannot be excused. The certification is a peculiar and personal
responsibility of the party, an assurance given to the court or other tribunal that there are no other
pending cases involving basically the same parties, issues and causes of action. Hence, the certification
must be accomplished by the party himself because he has actual knowledge of whether or not he has
initiated similar actions or proceedings in different courts or tribunals. Even his counsel may be unaware
of such facts.[9] Hence, the requisite certification executed by the plaintiffs counsel will not suffice.[10]

In a case where the plaintiff is a private corporation, the certification may be signed, for and on behalf of
the said corporation, by a specifically authorized person, including its retained counsel, who has
personal knowledge of the facts required to be established by the documents. The reason was explained
by the Court in National Steel Corporation v. Court of Appeals,[11] as follows:

Unlike natural persons, corporations may perform physical actions only through properly delegated
individuals; namely, its officers and/or agents.

The corporation, such as the petitioner, has no powers except those expressly conferred on it by the
Corporation Code and those that are implied by or are incidental to its existence. In turn, a corporation
exercises said powers through its board of directors and/or its duly-authorized officers and agents.
Physical acts, like the signing of documents, can be performed only by natural persons duly-authorized
for the purpose by corporate by-laws or by specific act of the board of directors. All acts within the
powers of a corporation may be performed by agents of its selection; and except so far as limitations or
restrictions which may be imposed by special charter, by-law, or statutory provisions, the same general
principles of law which govern the relation of agency for a natural person govern the officer or agent of
a corporation, of whatever status or rank, in respect to his power to act for the corporation; and agents
once appointed, or members acting in their stead, are subject to the same rules, liabilities and
incapacities as are agents of individuals and private persons.

For who else knows of the circumstances required in the Certificate but its own retained counsel. Its
regular officers, like its board chairman and president, may not even know the details required therein.

Indeed, the certificate of non-forum shopping may be incorporated in the complaint or appended
thereto as an integral part of the complaint. The rule is that compliance with the rule after the filing of
the complaint, or the dismissal of a complaint based on its non-compliance with the rule, is
impermissible. However, in exceptional circumstances, the court may allow subsequent compliance with
the rule.[12] If the authority of a partys counsel to execute a certificate of non-forum shopping is
disputed by the adverse party, the former is required to show proof of such authority or representation.

In this case, the petitioner, as the defendant in the RTC, assailed the authority of Atty. Aguinaldo to
execute the requisite verification and certificate of non-forum shopping as the resident agent and
counsel of the respondent. It was, thus, incumbent upon the respondent, as the plaintiff, to allege and
establish that Atty. Aguinaldo had such authority to execute the requisite verification and certification
for and in its behalf. The respondent, however, failed to do so.

The verification and certificate of non-forum shopping which was incorporated in the complaint and
signed by Atty. Aguinaldo reads:

I, Mario A. Aguinaldo of legal age, Filipino, with office address at Suite 210 Gedisco Centre, 1564 A.
Mabini cor. P. Gil Sts., Ermita, Manila, after having sworn to in accordance with law hereby deposes and
say: THAT -

1. I am the Resident Agent and Legal Counsel of the plaintiff in the above entitled case and have caused
the preparation of the above complaint;

2. I have read the complaint and that all the allegations contained therein are true and correct based on
the records on files;
3. I hereby further certify that I have not commenced any other action or proceeding involving the same
issues in the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or
agency. If I subsequently learned that a similar action or proceeding has been filed or is pending before
the Supreme Court, the Court of Appeals, or different divisions thereof, or any tribunal or agency, I will
notify the court, tribunal or agency within five (5) days from such notice/knowledge.

(Sgd.)

MARIO A. AGUINALDO

Affiant

CITY OF MANILA

SUBSCRIBED AND SWORN TO before me this 30th day of August, 1999, affiant exhibiting to me his
Community Tax Certificate No. 00671047 issued on January 7, 1999 at Manila, Philippines.

(Sgd.)

Doc. No. 1005; ATTY. HENRY D. ADASA

Page No. 198; Notary Public

Book No. XXI Until December 31, 2000

Series of 1999. PTR No. 320501 Mla. 1/4/99[13]

As gleaned from the aforequoted certification, there was no allegation that Atty. Aguinaldo had been
authorized to execute the certificate of non-forum shopping by the respondents Board of Directors;
moreover, no such board resolution was appended thereto or incorporated therein.

While Atty. Aguinaldo is the resident agent of the respondent in the Philippines, this does not mean that
he is authorized to execute the requisite certification against forum shopping. Under Section 127, in
relation to Section 128 of the Corporation Code, the authority of the resident agent of a foreign
corporation with license to do business in the Philippines is to receive, for and in behalf of the foreign
corporation, services and other legal processes in all actions and other legal proceedings against such
corporation, thus:

SEC. 127. Who may be a resident agent. A resident agent may either be an individual residing in the
Philippines or a domestic corporation lawfully transacting business in the Philippines: Provided, That in
the case of an individual, he must be of good moral character and of sound financial standing.

SEC. 128. Resident agent; service of process. The Securities and Exchange Commission shall require as a
condition precedent to the issuance of the license to transact business in the Philippines by any foreign
corporation that such corporation file with the Securities and Exchange Commission a written power of
attorney designating some persons who must be a resident of the Philippines, on whom any summons
and other legal processes may be served in all actions or other legal proceedings against such
corporation, and consenting that service upon such resident agent shall be admitted and held as valid as
if served upon the duly-authorized officers of the foreign corporation as its home office.[14]

Under the law, Atty. Aguinaldo was not specifically authorized to execute a certificate of non-forum
shopping as required by Section 5, Rule 7 of the Rules of Court. This is because while a resident agent
may be aware of actions filed against his principal (a foreign corporation doing business in the
Philippines), such resident may not be aware of actions initiated by its principal, whether in the
Philippines against a domestic corporation or private individual, or in the country where such
corporation was organized and registered, against a Philippine registered corporation or a Filipino
citizen.

The respondent knew that its counsel, Atty. Aguinaldo, as its resident agent, was not specifically
authorized to execute the said certification. It attempted to show its compliance with the rule
subsequent to the filing of its complaint by submitting, on March 6, 2000, a resolution purporting to
have been approved by its Board of Directors during a teleconference held on June 25, 1999, allegedly
with Atty. Aguinaldo and Suk Kyoo Kim in attendance. However, such attempt of the respondent casts
veritable doubt not only on its claim that such a teleconference was held, but also on the approval by
the Board of Directors of the resolution authorizing Atty. Aguinaldo to execute the certificate of non-
forum shopping.

In its April 12, 2000 Order, the RTC took judicial notice that because of the onset of modern technology,
persons in one location may confer with other persons in other places, and, based on the said premise,
concluded that Suk Kyoo Kim and Atty. Aguinaldo had a teleconference with the respondents Board of
Directors in South Korea on June 25, 1999. The CA, likewise, gave credence to the respondents claim
that such a teleconference took place, as contained in the affidavit of Suk Kyoo Kim, as well as Atty.
Aguinaldos certification.

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.[15] Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that
it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of
accurate and ready determination by resorting to sources whose accuracy cannot reasonably be
questionable.[16]

Things of common knowledge, of which courts take judicial 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. As
the common knowledge of man ranges far and wide, a wide variety of particular facts have been
judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any
fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no
constructive knowledge.[17]
In this age of modern technology, the courts may take judicial notice that business transactions may be
made by individuals through teleconferencing. Teleconferencing is interactive group communication
(three or more people in two or more locations) through an electronic medium. In general terms,
teleconferencing can bring people together under one roof even though they are separated by hundreds
of miles.[18] This type of group communication may be used in a number of ways, and have three basic
types: (1) video conferencing - television-like communication augmented with sound; (2) computer
conferencing - printed communication through keyboard terminals, and (3) audio-conferencing-verbal
communication via the telephone with optional capacity for telewriting or telecopying.[19]

A teleconference represents a unique alternative to face-to-face (FTF) meetings. It was first introduced
in the 1960s with American Telephone and Telegraphs Picturephone. At that time, however, no demand
existed for the new technology. Travel costs were reasonable and consumers were unwilling to pay the
monthly service charge for using the picturephone, which was regarded as more of a novelty than as an
actual means for everyday communication.[20] In time, people found it advantageous to hold
teleconferencing in the course of business and corporate governance, because of the money saved,
among other advantages include:

1. People (including outside guest speakers) who wouldnt normally attend a distant FTF meeting can
participate.

2. Follow-up to earlier meetings can be done with relative ease and little expense.

3. Socializing is minimal compared to an FTF meeting; therefore, meetings are shorter and more
oriented to the primary purpose of the meeting.

4. Some routine meetings are more effective since one can audio-conference from any location
equipped with a telephone.

5. Communication between the home office and field staffs is maximized.

6. Severe climate and/or unreliable transportation may necessitate teleconferencing.

7. Participants are generally better prepared than for FTF meetings.

8. It is particularly satisfactory for simple problem-solving, information exchange, and procedural tasks.

9. Group members participate more equally in well-moderated teleconferences than an FTF

meeting.[21]

On the other hand, other private corporations opt not to hold teleconferences because of the following
disadvantages:

1. Technical failures with equipment, including connections that arent made.

2. Unsatisfactory for complex interpersonal communication, such as negotiation or bargaining.

3. Impersonal, less easy to create an atmosphere of group rapport.

4. Lack of participant familiarity with the equipment, the medium itself, and meeting skills.

5. Acoustical problems within the teleconferencing rooms.

6. Difficulty in determining participant speaking order; frequently one person monopolizes the meeting.

7. Greater participant preparation time needed.

8. Informal, one-to-one, social interaction not possible.[22]

Indeed, teleconferencing can only facilitate the linking of people; it does not alter the complexity of
group communication. Although it may be easier to communicate via teleconferencing, it may also be
easier to miscommunicate. Teleconferencing cannot satisfy the individual needs of every type of
meeting.[23]

In the Philippines, teleconferencing and videoconferencing of members of board of directors of private

corporations is a reality, in light of Republic Act No. 8792. The Securities and Exchange Commission
issued SEC Memorandum Circular No. 15, on November 30, 2001, providing the guidelines to be
complied with related to such conferences.[24] Thus, the Court agrees with the RTC that persons in the
Philippines may have a teleconference with a group of persons in South Korea relating to business
transactions or corporate governance.

Even given the possibility that Atty. Aguinaldo and Suk Kyoo Kim participated in a teleconference along
with the respondents Board of Directors, the Court is not convinced that one was conducted; even if
there had been one, the Court is not inclined to believe that a board resolution was duly passed
specifically authorizing Atty. Aguinaldo to file the complaint and execute the required certification
against forum shopping.

The records show that the petitioner filed a motion to dismiss the complaint on the ground that the
respondent failed to comply with Section 5, Rule 7 of the Rules of Court. The respondent opposed the
motion on December 1, 1999, on its contention that Atty. Aguinaldo, its resident agent, was duly
authorized to sue in its behalf. The respondent, however, failed to establish its claim that Atty.
Aguinaldo was its resident agent in the Philippines. Even the identification card[25] of Atty. Aguinaldo
which the respondent appended to its pleading merely showed that he is the company lawyer of the
respondents Manila Regional Office.

The respondent, through Atty. Aguinaldo, announced the holding of the teleconference only during the
hearing of January 28, 2000; Atty. Aguinaldo then prayed for ten days, or until February 8, 2000, within
which to submit the board resolution purportedly authorizing him to file the complaint and execute the
required certification against forum shopping. The court granted the motion.[26] The respondent,
however, failed to comply, and instead prayed for 15 more days to submit the said resolution,
contending that it was with its main office in Korea. The court granted the motion per its Order[27]
dated February 11, 2000. The respondent again prayed for an extension within which to submit the said
resolution, until March 6, 2000.[28] It was on the said date that the respondent submitted an affidavit of
its general manager Suk Kyoo Kim, stating, inter alia, that he and Atty. Aguinaldo attended the said
teleconference on June 25, 1999, where the Board of Directors supposedly approved the following
resolution:
RESOLVED, that Mario A. Aguinaldo and his law firm M.A. Aguinaldo & Associates or any of its lawyers
are hereby appointed and authorized to take with whatever legal action necessary to effect the
collection of the unpaid account of Expert Travel & Tours. They are hereby specifically authorized to
prosecute, litigate, defend, sign and execute any document or paper necessary to the filing and
prosecution of said claim in Court, attend the Pre-trial Proceedings and enter into a compromise
agreement relative to the above-mentioned claim.[29]

But then, in the same affidavit, Suk Kyoo Kim declared that the respondent do[es] not keep a written
copy of the aforesaid Resolution because no records of board resolutions approved during
teleconferences were kept. This belied the respondents earlier allegation in its February 10, 2000
motion for extension of time to submit the questioned resolution that it was in the custody of its main
office in Korea. The respondent gave the trial court the impression that it needed time to secure a copy
of the resolution kept in Korea, only to allege later (via the affidavit of Suk Kyoo Kim) that it had no such
written copy. Moreover, Suk Kyoo Kim stated in his affidavit that the resolution was embodied in the
Secretarys/Resident Agents Certificate signed by Atty. Aguinaldo. However, no such resolution was
appended to the said certificate.

The respondents allegation that its board of directors conducted a teleconference on June 25, 1999 and
approved the said resolution (with Atty. Aguinaldo in attendance) is incredible, given the additional fact
that no such allegation was made in the complaint. If the resolution had indeed been approved on June
25, 1999, long before the complaint was filed, the respondent should have incorporated it in its
complaint, or at least appended a copy thereof. The respondent failed to do so. It was only on January
28, 2000 that the respondent claimed, for the first time, that there was such a meeting of the Board of
Directors held on June 25, 1999; it even represented to the Court that a copy of its resolution was with
its main office in Korea, only to allege later that no written copy existed. It was only on March 6, 2000
that the respondent alleged, for the first time, that the meeting of the Board of Directors where the
resolution was approved was held via teleconference.

Worse still, it appears that as early as January 10, 1999, Atty. Aguinaldo had signed a
Secretarys/Resident Agents Certificate alleging that the board of directors held a teleconference on June
25, 1999. No such certificate was appended to the complaint, which was filed on September 6, 1999.
More importantly, the respondent did not explain why the said certificate was signed by Atty. Aguinaldo
as early as January 9, 1999, and yet was notarized one year later (on January 10, 2000); it also did not
explain its failure to append the said certificate to the complaint, as well as to its Compliance dated
March 6, 2000. It was only on January 26, 2001 when the respondent filed its comment in the CA that it
submitted the Secretarys/Resident Agents Certificate[30] dated January 10, 2000.

The Court is, thus, more inclined to believe that the alleged teleconference on June 25, 1999 never took
place, and that the resolution allegedly approved by the respondents Board of Directors during the said
teleconference was a mere concoction purposefully foisted on the RTC, the CA and this Court, to avert
the dismissal of its complaint against the petitioner.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-
G.R. SP No. 61000 is REVERSED and SET ASIDE. The Regional Trial Court of Manila is hereby ORDERED to
dismiss, without prejudice, the complaint of the respondent.

SO ORDERED.
EN BANC

OFFICE OF THE COURT ADMINISTRATOR,

Complainant,

- versus -

LOURDES F. BERMEJO, COURT STENOGRAPHER II, MUNICIPAL TRIAL COURT IN CITIES, PUERTO PRINCESA
CITY,

Respondent.
A.M. No. P-05-2004
(Formerly OCA I.P.I. No. 05-2086-P)

Present:

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

CARPIO,

AUSTRIA-MARTINEZ,

CORONA,

CARPIO MORALES,

AZCUNA,

TINGA,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,

REYES, and

LEONARDO-DE CASTRO, JJ.

Promulgated:

March 14, 2008

x-----------------------------------------------------------------------------------------x
DECISION

PER CURIAM:

Before this Court is an administrative case for Dishonesty against Lourdes F. Bermejo, Court
Stenographer II, stationed at the Municipal Trial Court in Cities (MTCC), Puerto Princesa City, Palawan.

On January 20, 2004, then Court Administrator Presbitero J. Velasco, Jr.[1] received a letter from
Consolacion C. Santos, Director IV of the Civil Service Commission (CSC) Regional Office No. 3, San
Fernando, Pampanga, referring to the Office of the Court Administrator (OCA) an undated letter from a
concerned citizen accusing Bermejo of using another name in taking her Civil Service Eligibility
Examination, while another person took the same exam using Bermejos name. Attached to the letter is
a Memorandum dated August 14, 2003 of Nora S. Castro, Chief Personnel Specialist of the same CSC
regional office, reporting that upon verification of the pictures attached to the anonymous letter and
that of the Picture Seat Plan used during the exam, the person who purportedly impersonated Bermejo
and the picture of the person in the seat plan using the name of Bermejo was the same person. The
letter also states that because of this impersonation, Bermejo passed the exam and was able to use said
eligibility to obtain a permanent appointment as a stenographer at the Puerto Princesa City MTCC. The
real Bermejo allegedly also took the same exam under a different name, but failed.

In an Indorsement dated March 15, 2004, Court Administrator Velasco referred the anonymous letter to
Bermejo for comment. In her handwritten Comment, Bermejo denied the allegations and said that she
went through the proper process to obtain her civil service eligibility. She alleged that the charges were
the handiwork of her husbands mistress who had been threatening to have her removed from the
service. As regards the photographs attached to the letter, Bermejo said that she had inquired into the
identity of the person who allegedly used her name in the exam and found that she was a childhood
friend of her husband, but was currently serving sentence for adultery at the Correctional Institute for
Women.

Bermejo also explained why she took the test in San Fernando, Pampanga. She allegedly applied to take
the exam in Manila since her appointment was set to expire on July 15, 1998. However, she was
informed that the next exam was on June 16, 1998. Learning that there was an exam scheduled earlier
in San Fernando, she went there to see if she could take the exam there instead. And she did.
Subsequently, on July 16, 2004, Deputy Court Administrator Jose P. Perez directed Bermejo to explain
the discrepancy between the picture on her personnel file and the picture of the person who took the
examination using her name. According to DCA Perez, records of the OCA and of the CSC showed that
Bermejo was not the same person who used Bermejos name and took the sub-professional examination
on May 27, 1998 in San Fernando, Pampanga.

In her reply, Bermejo alleged that she could not explain the discrepancy. She said that she personally
took the exam and attached proof of her travel from Palawan to Manila and from Manila to Pampanga,
as well as her Application Receipt to take the May 27, 2008 exam in San Fernando, with her name and
picture appearing therein.

Bermejo stated that the person she suspected to be behind the case, her husbands mistress, had
already passed away. She maintained that she did not know the person in the picture and said she could
not find the same person, as the place where the latter allegedly lived had been razed by fire. She said
that the only discrepancy she could own up to was that pertaining to her birth date, listed in her
Certificate of Eligibility as May 13, 1965, while her birth certificate indicated May 13, 1968.

After investigation, the OCA submitted its evaluation and recommendation,[2] stating thus:

EVALUATION: The focal issue here is factual i.e., whether or not another person actually took the Civil
Service Commission Sub-Professional eligibility test at San Fernando, Pampanga on 27 May 1998, using
the name Lourdes F. Bermejo. In the affirmative, the corollary legal issue proceeds i.e., whether or not it
constitutes dishonesty as would merit a finding of administrative liability on the part of respondent.

At bar is an anonymous complaint, which respondent suspects is the handiwork of her husbands []other
woman[.] In evidence is a certified copy of the Seat Plan of the examination concerned. Said document
is of public record and indicates that it was duly checked and certified by the room examiner as well as
counter-checked by the supervising examiner. The same indubitably bears out a different person
appearing to take the exam using the name Lourdes F. Bermejo, whereas the real Lourdes F. Bermejo
(whose picture matches the respondents) is the one seated beside her. Respondent fails to overcome
this evidence. Aside from the presumption of regularity in the execution of official documents,
respondent in her two letters did not categorically deny the genuineness and due execution of the Seat
Plan. Instead, she impliedly admitted the same by her defense that she could not anymore locate the
person appearing atop her name.
We note that it took more than five (5) years for the supposed concerned citizen to assail the anomaly,
and that the alleged motive imputed to complainant probably holds water. However, these, at best, are
merely persuasive, circumstantial, and do not suffice to discount an evidence which tend directly to
prove the fact in issue.

Coming to the next issue, it is our considered opinion that the circumstances constitute dishonesty,
given the following considerations:

1) Respondents insistent line is that she actually took the exam which is misleading since she
indeed took the same but she kept mum on that (sic) she let another person use her name in taking the
civil service examination;

2) Respondent asserts that the person who purportedly took the exam using the name Lourdes
F. Bermejo was her husbands childhood peer who is now allegedly serving sentence for adultery and
whose locality of origin was razed by fire. How she was able to figure out the details of said person,
when she only supposedly met her briefly during [the] exam that took place more than five years ago, at
a far place where respondent was a complete stranger, is suspect;

3) It should be stressed that as a matter of procedure, the room examiners assigned to

supervise the conduct of a Civil Service examination closely examine the pictures submitted and affixed
on the Picture Seat Plan (CSC Resolution No. 95-3964, Obedencio, Jaime A.). The examiners carefully
compare the appearance of each of the examinees with the person in the picture submitted and affixed
on the Picture Seat Plan. In cases where the examinee does not look like the person in the picture
submitted and attached on (sic) the PSP, the examiner will not allow the said person to take the
examination (CSC Resolution No. 95-5195, Taguinay, Ma. Theresa).

Hence, it is clear that somebody else took the CSC exam for respondent Lourdes F. Bermejo. For her to
deny it and actually reap the benefits of passing the same, when in fact somebody else took it for her,
constitutes dishonesty.

In similar cases, the Honorable Court is consistent in imposing the stern penalty of dismissal, pursuant to
Section 23, Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292. [Pls. see:
CSC vs. Zenaida T. Sta. Ana, A.M. No. P-03-1696 (April 20, 2003); Cruz and Paitim vs. CSC, G.R. No.
144464 (Nov. 27, 2001); Floria vs. Sunga A.M. No. CA-01-10-PI (Nov. 14, 2001)].
RECOMMENDATION: Respectfully submitted for consideration of the Honorable Court is our
recommendation that:

1. the instant complaint be docketed as a regular administrative matter; and

2. respondent Lourdes F. Bermejo, (sic) be found guilty of dishonesty and accordingly

DISMISSED as Court Stenographer II, MTCC, Puerto Princesa City, with forfeiture of all her retirement
benefits, except accrued leave credits, and with prejudice to reemployment in any branch or
instrumentality of the government, including government-owned or controlled corporations.

The OCAs recommendation is well-taken.

This Court has had occasion to rule on similar cases in the past. In Civil Service Commission v. Sta.
Ana,[3] the Court found, thus:

After a thorough review of the matter, the Court finds that respondent is indeed guilty of dishonesty. An
examination of respondents Personal Data Sheet reveals that her signature and picture on it are
different from those in her CAT Application and Picture Seat Plan. Respondent attributes such
discrepancy to unknown persons who may have been committing such anomaly and irregularity in the
examination procedure of the CSC. However, this Court agrees with the observation of the executive
judge that the irregularity should not be attributed to the CSC which had no motive in tampering with
such documents. Even if such irregularity was attributable to error or oversight, respondent did not
present any proof that it occurred during the examination and, thus, the CSC officials who supervised
the exam enjoyed the presumption of regularity in the performance of their official duty. Besides, for
the CSC to commit such a mistake - mixing up the pictures and signatures of examinees - was unlikely
due to the strict procedures it follows during civil service examinations. In a similar case, this Court
approved the findings of the CSC regarding procedures during examinations:

It should be stressed that as a matter of procedure, the room examiners assigned to supervise the
conduct of a Civil Service examination closely examine the pictures submitted and affixed on the Picture
Seat Plan (CSC Resolution No. 95-3694, Obedencio, Jaime A.). The examiners carefully compare the
appearance of each of the examinees with the person in the picture submitted and affixed on the PSP. In
cases where the examinee does not look like the person in the picture submitted and attached on the
PSP, the examiner will not allow the said person to take the examination (CSC Resolution No. 95-5195,
Taguinay, Ma. Theresa).

Thus, the irregularity in respondents Personal Data Sheet, CAT Application and Picture Seat Plan cannot
be attributed to error on the CSCs part. It is clear that somebody else took the CSC exam for respondent
Sta. Ana.

For respondent to claim that she herself took the CSC exam when in fact somebody else took it for her
constitutes dishonesty.

On the other hand, in Donato v. Civil Service Commission Regional Office No. 1,[4] Alejandro Donato, Jr.
was charged with dishonesty and falsification of public documents for representing himself as Gil Arce
and taking the civil service exam under that name. The CSC and the Court of Appeals both found that the
picture of Donato appeared on the Picture Seat Plan on top of the name Gil Arce. On the other hand,
Arce admitted that he might have mistakenly submitted Donatos picture during the exam. The Court
rejected Donatos claim that the case was merely the handiwork of his former principal who allegedly
had an axe to grind against him in the face of positive evidence against him and Arce. Accordingly, the
Court upheld the dismissal of both Arce and Donato.

In the case at bar, respondent Bermejo attributes the anonymous complaint to her husbands mistress
and alleges that the woman whose picture appears with her name on the Seat Plan is her husbands
childhood friend. However, she fails to explain how the two, who apparently also live in Palawan, were
able to manipulate and influence the CSC personnel in San Fernando, Pampanga in order to come up
with the charges against her, or how they were able to coax another person allegedly her husbands
childhood friend into impersonating her to take the exam. Besides, it seems to us a little too convenient
for respondent to pin the blame on persons who are no longer around to defend themselves.

Respondent also fails to refute the documentary evidence against her. It is a settled rule in our
jurisdiction that the duly accomplished form of the Civil Service is an official document of the
Commission, which, by its very nature, is considered in the same category as that of a public document,
admissible in evidence without need of further proof. As an official document, the entries thereof made
in the course of official duty are prima facie evidence of the facts stated therein.[5]
Instead, respondent tries to support her arguments with documents of her own. Unfortunately, the
evidence she adduces does not negate the veracity of the CSCs Picture Seat Plan. Worse, these
documents even strengthen the case against her. The picture in her passport is that of the person whose
name in the Seat Plan is indicated as Julieta M. Padrones, who happens to be seated beside the person
purportedly named Lourdes F. Bermejo.

It is difficult to believe that respondent could not have noticed that her picture was put on top of a
different name and that her name was accompanied by the picture of another person. There was a
space provided for the signature of the examinee. Thus, respondent could not have missed that she was
signing if indeed she was signing her own name the box with a different picture. She proffers no
sufficient explanation for this discrepancy.

In Donato, this Court quoted with approval the CSCs findings, to wit:

In the offense of impersonation, there are always two persons involved. The offense cannot prosper
without the active participation of both persons (CSC Resolution No. 94-6582). Further, by engaging or
colluding with another person to take the test in his behalf and thereafter by claiming the resultant
passing rate as his, clinches the case against him. In cases of impersonation, the Commission has
consistently rejected claims of good faith, for it is contrary to human nature that a person will do
(impersonation) without the consent of the person being impersonated. (CSC resolution No. 94-0826)[6]

Finally, respondents allegations fail to controvert the presumption of regularity in the performance of
official duties of the CSC personnel. The Court has noted in previous cases the procedure followed
during the conduct of the Civil Service Exams, as quoted by the OCA in its evaluation.[7] Respondent
does not even allege that the CSC Regional Office No. 3 personnel who administered the exam departed
from this established procedure or that any irregularity attended the conduct of the exam.

Dishonesty is defined as intentionally making a false statement on any material fact, or practicing or
attempting to practice any deception or fraud in securing his examination, appointment or
registration.[8] Dishonesty is a serious offense which reflects a persons character and exposes the moral
decay which virtually destroys his honor, virtue and integrity. It is a malevolent act that has no place in
the judiciary, as no other office in the government service exacts a greater demand for moral
righteousness from an employee than a position in the judiciary.[9]
We conclude that there is substantial evidence to hold that respondent committed the act of dishonesty
imputed to her. Under the Uniform Rules on Administrative Cases in the Civil Service,[10] dishonesty is
classified as a grave offense punishable by dismissal for the first offense.

WHEREFORE, the foregoing premises considered, respondent LOURDES F. BERMEJO is found GUILTY of
dishonesty and DISMISSED from the service, with forfeiture of all retirement benefits, except accrued
leave credits, and with prejudice to reemployment in any branch or instrumentality of the government,
including government-owned or controlled corporations.

SO ORDERED.

EN BANC

[G.R. No. 124077. September 5, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ADORACION SEVILLA y JOSON @ BABY and JOEL
GASPAR y CABRAL, accused-appellants.

DECISION

PURISIMA, J.:

For automatic review here is a decision[1] handed down by Branch 26[2] of the Regional Trial Court in
Cabanatuan City, convicting appellants Adoracion Sevilla y Joson @ Baby and Joel Gaspar y Cabral for
violation of Section 8, Article II, Republic Act No. 6425[3] as amended by Republic Act No. 7659,[4] and
sentencing both appellants to the supreme penalty of death.

Filed on September 17, 1995 by Prosecutor Amelia C. Tiu, the Information indicting the appellants,
Adoracion Sevilla y Joson @ Baby and Joel Gaspar y Cabral, alleges:

That on or about the 15th day of September, 1995, in the City of Cabanatuan, Republic of the Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating
and mutually aiding and abetting each other, without authority of law, did then and there, wilfully,
unlawfully and feloniously have in their possession, control and custody four (4) bricks of marijuana
dried leaves with fruiting tops approximately weighing four thousand (4,000) grams.

CONTRARY TO LAW.[5]

Upon arraignment[6] on October 6, 1995 with the assistance of their respective lawyers, appellants
pleaded NOT GUILTY to the charged. Thereafter, trial on the merits ensued, resulting in the rendition of
the judgment of conviction disposing thus:

PREMISES CONSIDERED, and finding both accused Adoracion Sevilla Y Joson and accused Joel Gaspar Y
Cabral guilty beyond reasonable doubt of the crime of Violation of Section 8, Art. II, Republic Act 6425,
as amended by Republic Act 7659, both of them are hereby sentenced to suffer the penalty of DEATH
with all the accessory penalties provided by law, and a fine of Five Hundred Thousand Pesos
(P500,000.00), Philippine Currency, and to pay the costs of suit.

The 4,000 grams, more or less of marijuana is hereby confiscated in favor of the government and to be
disposed of in accordance with law.

SO ORDERED.[7]

Evidence for the People upon which the trial court anchored its finding of guilt, consisted of the
testimonies of: 1) ROGELIO S. DE VERA, a member of the Philippine National Police (PNP) assigned at the
3rd Regional Field Unit, Nueva Ecija-Aurora Narcotics Command (NARCOM) District Office in Cabanatuan
City; 2) Police Senior Inspector ANDREI FELIX, the Provincial Officer of the NARCOM for Aurora and
Nueva Ecija; 3) SPO1 NESTOR PINEDA, an officer of the Criminal Investigation Service (CIS) assigned at
Cabanatuan City; 4) DANILO TUMANGAN, Barangay Captain of Bantug Norte, Cabanatuan City; and 5)
P/Capt. DAISY P. BABOR, a forensic chemist assigned at the PNP Camp Olivas in San Fernando,
Pampanga.

The facts and circumstances sued upon are stated by the Solicitor General in the Consolidated Appellees
Brief[8] as follows:

On September 15, 1995, at about 4:00 oclock in the afternoon, a team of police officers composed of
P/Sr. Insp. Andrei Felix and SPO3 Rogelio de Vera of the Narcotics Command (NARCOM), and SPO2
Padilla and SPO1 Pineda of the Central Intelligence Service (CIS), arrived at 904 Martinez Street, Bantug
Norte, Cabanatuan City, to effect the arrest of Adoracion Sevilla (TSN, October 9, 1995, p. 12).

Prior to the operation, P/Sr. Insp. Felix, being the Provincial Officer of the NARCOM for the provinces of
Aurora and Nueva Ecija, had disseminated to his confidential agents a list of suspected drug dealers.
Among those in the list was Adoracion Sevilla who had a warrant for her arrest issued in Criminal Case
No. 1317 for violation of Presidential Decree No. 6425 (TSN, October 9, 1995, p. 8).

Thus, when P/Sr. Insp. Felix was informed by one of his confidential agents at about 3:00 oclock in the
afternoon of September 15, 1995, of the exact whereabouts of Adoracion Sevilla, he immediately
instructed one of his men to verify from the CIS if the warrant of arrest issued in Criminal Case No. 1317
was still unserved. On being told that it was still unserved, he then coordinated with the CIS to effect the
arrest of Adoracion Sevilla. Thus, the composite team of police officers from NARCOM and CIS was
formed and proceeded to 904 Martinez Street, Bantug Norte, Cabanatuan City (TSN, October 9, 1995,
pp. 8-10).

The police officers, who were in civilian clothes, were allowed inside the house by Adoracion Sevilla
herself who was seated at the sala. She had a male companion, later identified as Joel Gaspar, who was
standing near the stairs. After the police officers had introduced themselves and stated their purpose,
P/Sr. Insp. Felix observed Adoracion Sevilla instructing Joel Gaspar to bring upstairs a box of Ginebra San
Miguel which was lying on the floor beside him. Suspecting the box to contain illegal drugs, P/Sr. Insp.
Felix followed Joel Gaspar upstairs and there asked the latter what were the contents of the box. Joel
Gaspar readily replied that the box contained marijuana. Joel Gaspar then opened the box and
voluntarily handed it to P/ Sr. Insp. Felix, telling the latter that the box belonged to Adoracion Sevilla.
Inside the box were four (4) bricks of dried marijuana leaves and flowering tops (TSN, October 9, 1995,
pp. 12-15).

Both Adoracion Sevilla and Joel Gaspar were arrested and the bricks of dried marijuana leaves and
flowering tops confiscated. Adoracion Sevilla was brought directly to the office of the CIS while Joel
Gaspar was first brought to the Barangay Hall where his arrest was blottered and, in the presence of the
Barangay officials, the bricks of dried marijuana leaves and flowering tops were inventoried and a
receipt therefor prepared (TSN, October 9, 1995, pp. 15-16). The confiscated articles were consequently
turned over to the PNP Crime Laboratory. Upon physical, chemical and confirmatory tests conducted by
P/Capt. Daisy P. Babor, a forensic chemist, the articles were found to be marijuana, a prohibited drug
(TSN, October 16, 1995, pp. 12-13; Exhibit E)[9]

For the defense, appellants took the witness stand.

Expectedly, appellant Sevilla presented a different version of what led to the indictment. In her
Appellants Brief,[10] Sevilla theorized:

xxx she was in Cabanatuan City on September 15,1995, particularly at Bantug Norte in the apartment of
her daughter Micaela Santos. She had just arrived from the PJGMRMC hospital where she had gone for
treatment as she was then bleeding. She had just seated in the sala resting for about ten minutes when
several persons numbering about twelve, came, introduced themselves as NARCOM agents and
presented her a warrant of arrest. Some of the agents went at the back of the house and at the kitchen
where they searched every cabinet overturning in the process, the two (2) boxes under the stairs.
Others went upstairs. She did not know what they did upstairs but she heard noise. She asked the
agents if they had a search warrant but they answered that there is no need for a search warrant. The
agents stayed there for 15 to 20 minutes. When they left, Adoracion Sevilla and her companion were
brought with them. Sevilla was first brought to the CIS Office, then at the NARCOM office. Thereat, the
agents typed some papers which they forced her to sign but she refused because it was stated therein
that the house as well as the marijuana belonged to her. She denied seeing the box presented by the
prosecution and claimed that she only saw it in Court. She likewise denied owning the box containing
the marijuana. She did not know who owned the same (TSN, October 23, 1995, pp. 2-11).[11]

For his part, appellant Gaspar recounted that he was inside the toilet washing his clothes at the time of
the incident, when he heard Sevilla conversing with someone. Upon opening the door of the toilet, he
saw a man standing in front of Sevilla and several other men on the stairs going up the second floor of
the apartment. Then, the men descended from the upper portion of the house with a carton box which
contained the marijuana complained of.[12] Gaspar averred that the men were already searching the
house when he saw them.[13]

Gaspar testified that he did not see who carried the said box upstairs even as he denied any knowledge
regarding the source thereof. According to him, it was only on that day that he went to the house at
Bantug Norte, Cabanatuan City. He had just arrived from Bulacan with the son of his co-accused,[14]
who he had befriended at the Luneta Park in Manila when he was a stow-away during the previous
summer.

Additionally, Gaspar declared that he was forced to sign a document stating that the box containing
marijuana belonged to his co-accused, Adoracion Sevilla,[15] and was requested to point at the
marijuana leaves spread on a table at the CIS office so that pictures of the same could be taken.[16] He
stressed that he was not informed of his constitutional rights nor was he given an opportunity to engage
the services of a lawyer during the questioning at the barangay hall[17] and at the CIS office.[18]

Relying on the presumption that the arresting officers performed their official duties regularly and
rejecting appellants defense of denial, the trial court convicted appellants and sentenced them to
DEATH.

Appellant Adoracion Sevilla urges the Court to acquit her on the sole assignment of error, that:

THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT ADORACION SEVILLA GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME CHARGED IN THE INFORMATION.[19]

Appellant Joel Gaspar theorized that:

1. THE COURT ERRED IN CONVICTING THE ACCUSED INSPITE OF THE ABSENCE OF SEARCH WARRANT;

2. THAT EVEN ASSUMING FOR ARGUENDO (SIC) THAT JOEL GASPAR Y CABRAL WAS IN POSSESSION OF
BOX (SIC) CONTAINING PROHIBITED DRUGS BUT HE WAS ONLY INSTRUCTED BY ADORACION SEVILLA TO
BRING UPSTAIRS (SIC) AND NO PROOF HE HAS KNOWLEDGE OF THIS BOX (SIC).[20]

After meticulous examination of the records and evidence on hand, the Court is of the finding and
conclusion that a reversal of the decision a quo under review is in order.

Article III, Section 2 of the 1987 Constitution reads:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.

From the aforecited constitutional provision, it can readily be gleaned that as a general rule, the
procurement of a warrant is required before a law enforcer can validly search or seize the person,
house, papers or effects of any individual. In People vs. Aruta,[21] this Court ruled that this
constitutional guarantee is not a blanket prohibition against all searches and seizures as it operates only
against unreasonable searches and seizures. The plain import of the language of the Constitution, which
in one sentence prohibits unreasonable searches and seizures and at the same time prescribes the
requisites for a valid warrant, is that searches and seizures are normally unreasonable unless authorized
by a validly issued search warrant or warrant of arrest.

To underscore the significance the law attaches to the fundamental right of an individual against
unreasonable searches and seizures, the Constitution of this Republic succinctly declares under its
Article III, Section 3(2) that any evidence obtained in violation of this or the preceding section shall be
inadmissible in evidence for any purpose in any proceeding. Consequently, evidence derived from an
illegal search is placed beyond the Courts consideration, as a practical means to enforce the
constitutional injunction and to discourage violations of basic civil rights under the guise of legitimate
law enforcement.
Of course, there are certain cases where the law itself allows a search even in the absence of a warrant.
Jurisprudence mentions the following instances under which a warrantless search and seizure may be
effected, to wit:

1. Search which is incidental to a lawful arrest ( Rule 126, Section 12, Rules of Court);

2. Seizure of evidence in plain view;

3. Search of a moving vehicle;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk;

7. Exigent and emergency circumstances.[22]

The enumeration above being exceptions to the general rule, their application must be limited to the
situations clearly falling within their contemplation. Furthermore, what is sought to be protected by the
proscription being a basic right guaranteed by the fundamental law of the land, no less, the requirement
of a warrant must be construed strictly and cannot lightly be disregarded. To do otherwise would
unnecessarily infringe upon individuals personal liberty and encroach upon a basic right so deserving of
full protection and vindication.[23]

In the case at bar, the prosecution posits that the search conducted in subject house at Bantug Norte,
which yielded the corpus delicti of the present accusation, is incidental to the lawful arrest of Sevilla
who had been long wanted by the police in Criminal Case No. 1317. It is the theory of the State that the
act of Gaspar in picking up the box containing the marijuana in question and bringing it to the second
floor of said apartment, allegedly upon Sevillas instruction, gave the arresting officers probable cause to
act upon the idea that prohibited drugs were in such box.

First of all, the Court does not fully subscribe to the submission of the prosecution that the search was in
the course of a lawful arrest. With respect thereto, the Court finds the evidence for the People to be
conflicting. While P/Sr. Inspector Felix and SPO3 De Vera are steadfast in their claim that the search they
conducted was borne of a reasonable suspicion that the box which Gaspar carted away contained
marijuana, SPO1 Pineda, on the other hand, declared quite candidly that the NARCOM officers joined
them in serving the warrant on Sevilla for the specific purpose of making a search. Pineda testified thus:

xxx xxx xxx

FISCAL MACARAIG:

Q. When was the time this particular warrant of arrest against Adoracion Sevilla for Violation of Republic
Act No. 6425 served ?

A. September 15, 1995 at 4:00 oclock in the afternoon, Sir.

Q. Will you please state how was or what was the manner this particular warrant of arrest implemented
(sic) ?

ATTORNEY BANSALE:

No basis, Your Honor.

FISCAL MACARAIG:

The witness has testified that they served the warrant of arrest, we are asking the manner or
implementation, Your Honor.

COURT:

Witness may answer.

We served it at her residence in Bantug, Sir.

FISCAL MACARAIG:

Q. How do you know that it is her residence?

A. We were accompanied by an informant who stayed in that house, Sir.

COURT:

Who stated that she is staying in that house?

A. It was the informant who told us, Your Honor.

FISCAL MACARAIG:

Q. Were you alone in serving the warrant of arrest?

A. We were four (4), Sir.

Q. Who were your companions in serving the warrant of arrest?

A. SPOII Padilla, Capt. Felix and SPOIII Rivera,[24] a member of the NARCOM, Sir.

Q. Who in particular among this group are the members of the Narcotics Command?

A. Capt. Felix and SPOIII Rivera, Sir.

Q. How about SPOII Padilla?

A. He is a member of the 302nd CISC, Sir.

Q. Aside from the fact that your office has a copy of the warrant of arrest against four (4) criminal cases
(sic), against Adoracion Sevilla, how were you able to effect the warrant of arrest?

A. Because according to the informant, she lives there and so we went in Bantug, Sir.

Q. Is this informant that you are talking about, is he or she an informant of the CIS?(sic)

A. No, Sir.

Q. To your knowledge, was he or she an informant of the NARCOM?

A. No also, Sir.

Q. Why were the NARCOM elements became (sic) a member of the composite team who served the
warrant of arrest against Adoracion Sevilla?

A. Because according to our informant, there is marijuana in the house of Adoracion Sevilla, Sir.

Q. In other words, it is a joint group undertaken (sic) in the office of the Narcom and CIS regarding the
serving of the warrant of arrest?

ATTY. BANSALE:

Leading, Your Honor.

COURT:

Witness may answer.

A. Yes, Sir. [25]

xxx xxx xxx

CROSS EXAMINATION CONDUCTED BY ATTY. RAUL N. BANSALE:

ATTY. BANSALE:

Q. How many vehicles did you use in going to the house where you arrested Adoracion Sevilla on
September 15, 1995?

FISCAL MACARAIG:

May we know the materiality of this question, Your Honor because the question has not testified by the
witness (sic), as to whether there were vehicles used!

COURT :

Witness may answer.

A. Two (2) vehicles, Sir.

ATTY. BANSALE:

Q. What kind of vehicles?

A. Two (2) owner type jeeps, Sir.

Q. How many persons were riding in that jeep when you served the warrant of arrest on September 15,
1995?

A. Two (2) passengers for every jeep, Sir.

COURT:

Q. You mean the Narcom Officers were in a jeep and the members of the CIS were also in another jeep?

A. Yes, Your Honor.

ATTY. BANSALE:

Q. Does that include the driver?

A. Yes, Sir.

Q. You said that you were accompanied by an informant, how come that you were saying that there
were only two (2) occupants in a jeep?

A. The informant went ahead and was riding in a tricycle, Sir.

Q. So that, in serving the warrant of arrest, you used three (3) vehicles, including the tricycle?

A. Yes, Sir.

COURT:

Q. What did you think of using two (2) vehicles when you were only to serve a warrant of arrest?

A. Because there was also a marijuana (sic) in their house, Sir.

ATTY. BANSALE:

Q. And because of that report, that was the reason why the Narcom agents joined your team ?

A. Yes, Sir.

Q. And the purpose of the Narcom agents in joining your team is to search and get the marijuana?
A. Yes, Sir.[26]

xxx xxx xxx

ATTY. BANSALE:

Q. When did this informant inform you about this Adoracion Sevilla?

A. On that same day we served the warrant of arrest, Sir.

Q. You said that this informant is not connected with the Philippine National Police, do you know the
reason why said informant gave you the information regarding the whereabouts of Adoracion Sevilla, as
well as the marijuana in the house of Adoracion Sevilla?

A. I do not know the reason, Sir.

Q. Did you try to secure a search warrant with respect to the information of marijuana by the
informant?

A. No, Sir.

Q. You did not advise the Narcom agents to secure a search warrant with respect to the seizure of
marijuana?

A. No, sir, what we are concerned only is the warrant of arrest (sic).[27]

xxx xxx xxx

ATTY. BANSALE:

Q. What happened after you served the warrant of arrest against Adoracion Sevilla?

A. The Narcom agents searched the house, Sir.

Q. Did they also search the upper portion of the house?

FISCAL MACARAIG:

Your Honor, the witness is no longer in the position to answer that.

COURT:

Okey, what did you understand to (sic) the word search?

A. Searching of the house, Your Honor.

ATTY. BANSALE:
Q. Did they search the other parts of the house?

FISCAL MACARAIG:

He is incompetent, Your Honor. How can he knows (sic) if he is guarding Adoracion Sevilla?

COURT:

Sustained. Do not use him as your witness.

ATTY. BANSALE:

That would be all, Your Honor.[28]

As can be gathered from the above testimony, the NARCOM officers had every intention of conducting a
search in subject house at Bantug Norte even before they proceeded to the place to arrest Sevilla. Per
SPO1 Pinedas account, they received prior information that there was marijuana in the said house at
Bantug Norte and it was precisely on the basis of such information the NARCOM officers joined in the
service of the warrant. In short, the NARCOM officers were of the impression that they were to search
the house and yet, they failed to even try to secure a search warrant as required by law although there
was opportunity to do so.

Then too, except for the admission that no search warrant was ever procured, SPO1 Pinedas revelation
traversed that of SPO3 De Vera who declared that their only purpose of going to Bantug Norte was to
arrest Sevilla.[29] Also, SPO3 De Vera made it appear in his testimony that it was upon the prodding of
the CIS operatives that they decided to join forces, which was not what SPO1 Pineda recounted. SPO3
De Veras account was as follows:

xxx xxx xxx

ATTY. BANSALE:

Q. The only purpose why you went to Bantug Norte on September 15, 1995 is to arrest Adoracion
Sevilla, is it not?

A. Yes, sir.

Q. At the time, you were only armed with a warrant of arrest dated August 1989, is it not?

A. Yes, sir.

Q. You were not there to conduct a buy-bust operation, is it not?

A. Yes, sir.

Q. How many were you when you served the warrant of arrest against Adoracion Sevilla on September
15, 1995?
A. We were four (4), sir.

Q. Who are those four (4)?

A. Me and Police Senior Inspector Andrei Felix, both of NARCOM and two (2) members of the CIC
namely, SPO2 Padilla and SPO1 Pineda.

Q. You said that your only purpose is to serve a warrant of arrest against Adoracion Sevilla: My question
to you is this: Is it your Standard Operating Procedures (sic) when you serve a warrant of arrest to have
assistance from the CIC considering that the person you are going to arrest is a woman?

A. Not all, sir.

ATTY. BANSALE:

Q. Why did you ask assistance from the CIC on that particular date when the one you are going to arrest
is a woman only?

A. I referred to the members of the CIS the copy of the warrant of arrest considering that the said
document is dated 1989, sir.

COURT:

Q. What was the reaction to you of their office when you referred that date (sic)?

A. According to the members of the CIC, the warrant of arrest is still valid to serve against the person.

Q. Aside from the statement that it is still valid, what was, if any, is the reaction of that office to whom
you referred (sic)?

A. According to them, it was one of their functions, so, we better join forces.

ATTY. BANSALE:

Q. In the warrant of arrest, it was stated there that the address was MS Garcia. How were you able to
know that accused Adoracion Sevilla is at Bantug Norte?

A. Based on the report by a civilian informant that Adoracion Sevilla is now residing at Bantug Norte.

Q. You said a while ago that you conducted surveillance for months against Adoracion Sevilla, when did
you conduct said surveillance?

A. I cannot remember the exact date but it is this year only, sir.

ATTY. BANSALE:

Q. Why did you conduct a surveillance against Adoracion Sevilla?

A. Because many reports were reaching to our office (sic) that she is allegedly involved in transporting
and selling of marijuana dried leaves in the city.[30]

In light of the testimonies aforecited and evidence on record, the Court entertains serious doubts over
the circumstances under which the NARCOM agents conducted the search. What appears more
probable is that having been informed of Sevillas presence as well as the existence of the contraband in
subject house, the NARCOM agents joined the arresting team and forthwith turned the whole place
upside-down under the assumption that a search warrant was not needed - a conclusion consistent with
Sevillas narration of the events and scenario she was in.

The Court is not impressed with the Peoples stance that the search was incidental to a lawful arrest and
therefore did not require the procurement of a search warrant. The facts establishing a probable cause
for the law enforcers to conduct a warrantless search, as theorized upon by the prosecution, do not
seem to accord with human nature and experience. While there is no hard and fast rule to determine
the truthfulness of ones testimony, that which conforms, however, to the quotidian knowledge,
observation and experience of man is often deemed to be reliable.[31]

The Court finds it hard to believe that appellant Sevilla, supposedly a notorious drug pusher who had a
standing warrant for her arrest, would casually allow and even ask the police officers to enter the house
after introducing themselves.[32] If Sevilla had indeed something to hide or be wary of, it would have
been a more natural reaction for her to evade the police officers or at least exert an effort to conceal
the box in which the prohibited article was kept before allowing the arresting officers to enter the
premises. The evidence shows that Sevilla did neither and was even seated at the sala, apparently
unaffected by the arrival of the four men who entered the house to serve the warrant.[33]

All things viewed in proper perspective, the Court is inclined to believe the posture of the defense that
over the objection and protestation of Sevilla, the arresting officers just barged into the place and
searched the house straightaway. This conclusion is more logical and consistent with the evidence on
record especially in the face of appellants insistence that such transpired on that fateful day.

Also hard to believe is the tale of P/Sr. Inspector Felix that after having introduced themselves as police
authorities, Sevilla instructed Gaspar to bring the carton box to the second floor.[34] It is difficult to
imagine why Sevilla would arouse more suspicion by doing such a thing in the presence of the four
arresting officers.

Neither can the Court perceive any plausibility in the allegation that appellant Gaspar readily admitted
that the contents of the carton box were marijuana and the latter voluntarily handed over the same to
the NARCOM officers while confessing that the illegal substance belonged to Sevilla. Suffice it to note
such averment too convenient for comfort considering the vehement denial by Gaspar as well as the
improbability of the same.

Then too, a thorough scrutiny of the testimonial evidence offered by the People reveals inconsistencies
and absurdities which, when viewed in isolation, seem trivial and unimportant. Taken as a whole,
however, the conflicting accounts and improbabilities cast doubt over the credibility of the prosecution
witnesses and veracity of their narrations. In People vs. Noay,[35] the Court held that where the
testimonies of key witnesses cannot stand together, the inevitable conclusion is that one or both must
be telling a lie and their story a mere concoction.
De Vera, the first prosecution witness to take the stand, categorically declared that he noticed Gaspar
immediately and instinctively cart upstairs a medium-sized carton box when Gaspar learned that they
were officers of the law.[36] On the other hand, P/Sr. Inspector Felix later disclosed that it was only
upon receiving instructions from Sevilla that Gaspar carried the carton box upstairs.[37]

The discrepancy in such testimonies is disturbing given the fact that the same are crucial to the
prosecution of Sevilla, whose only link to the said carton box is the instruction which she allegedly gave
to Gaspar. It is noteworthy that apart from the suggestion made by Prosecutor Macaraig in the course of
questioning that an instruction was given by Sevilla (to which the defense counsel timely objected on
the ground that the prosecutor was leading the witness), SPO3 De Vera made no mention whatsoever of
the purported instruction which would establish the connection between Sevilla and the controverted
box. It was only when the second prosecution witness (Felix) was called to the witness stand that the
incriminating assertion was made, giving the Court the impression that the prosecution tailored Felixs
testimony to suit that of De Vera in support of the theory the prosecution wanted to project.

As regards the manner in which entrance was effected in the house at Bantug Norte and how the
warrant of arrest was served on Sevilla, P/Sr. Inspector Felix, SPO3 De Vera and SPO1 Pineda could not
even agree on their respective tales.

For instance, Felix disclosed that when they arrived, the gate was slightly open, Sevilla was standing by
the gate and even asked them to enter the house.[38] De Vera, on the other hand, testified that Sevilla
was merely seated inside the house when they arrived.[39] To add to the uncertainty, Pinedas account
completely clashed with Felixs and De Veras story when the former testified that the door was closed,
that they had to knock on the door of the house and that they arrested Sevilla by the door when the
latter opened the same.[40]

Equally sketchy are the subsequent events which happened when Sevilla and Gaspar were taken into
custody by the PNP and NARCOM officers.

SPO1 Pineda recounted that after the arrest of the two appellants, they were directly brought to the CIS
at the same time for booking and that they did not stop at any place in between.[41] Meanwhile, De
Vera and Felix maintain that Gaspar was initially investigated at the barangay hall while Sevilla was first
brought to the NARCOM district office.[42]

According to SPO3 De Vera, Sevilla was not brought to the barangay hall because she refused to
acknowledge that she knew anything about the marijuana.[43] P/Sr. Inspector Felix, on the other hand,
disclosed that the reason Sevilla was not brought to the barangay hall, which, according to De Vera, is a
standard operating procedure,[44] was because she was in an angry mood, and wanted to escape. Yet
strangely, Felix also revealed that Sevilla and Gaspar reached the NARCOM district office at the same
time because the vehicle and troop which accompanied Sevilla stopped along the highway to wait for
Gaspar, who was then being investigated at the barangay hall. If the investigation at the barangay hall
was a standard operating procedure, why was Sevilla not investigated considering that Sevilla had to
wait for Gaspar along the highway?

The Court cannot also understand why the NARCOM agents could not conclusively state when and how
the surveillance was undertaken on the person of appellant Sevilla. If a surveillance had in fact taken
place, they would have discovered that the house did not belong to Sevilla but to her daughter, Micaela.
In view of the foregoing, the Court does not see its way clear to give full faith and credence to the
prosecution evidence on hand. It is not unmindful of the settled doctrine that the assessment by the
trial court of the credibility of the witnesses and their testimonies, as a rule, is binding on appellate
courts, absent any fact or circumstance of weight and substance that had been overlooked,
misapprehended or misapplied.[45] In the present case, however, and for the reasons already advanced,
the Court finds it proper to apply the exception rather than the general rule because although
declarations of law enforcers are accorded weight, their testimonies, to be worthy of belief, must
themselves be credible and not suspect.[46]

Not only that, where the inculpatory facts and circumstances are capable of two or more explanations
or interpretations, one of which is consistent with the innocence of the accused and the other
consistent with his guilt, the evidence does not meet or hurdle the test of moral certainty required for
conviction.[47] Consequently, the acquittal of appellants is indicated.

The illegal search conducted by the NARCOM agents is not the only constitutional infirmity tainting the
case. An exhaustive review of the records discloses that appellants were not duly informed of their
constitutional rights after their arrest. Neither were they assisted by counsel at any stage of the
custodial investigation, despite the lack of waiver of their right to counsel. In his testimony, P/Sr.
Inspector Felix admitted thus:

FISCAL MACARAIG:

xxx xxx xxx

Q. Before the accused who goes by the name alias Joel at that time he confessed as to who is the owner
of the marijuana bricks, in connection of your duty what step or steps did you do (sic)?

A. As a police officer, after hearing that the contents of the box is marijuana I apprehended him and I
told him that I will bring him to the Office for investigation and after saying that you are under arrest
and you have the right to remain silent and if you wish we can provide you with a lawyer (sic), sir.

Q. So, in other words Mr. Witness, at that point in time after you arrested the accused and before the
same was effected you would like to impress the Court the constitutional right of the accused at that
time was stated by you to him (sic)?

A. Yes, sir.

Q. What happened afterwards, Mr. Witness?

A. Afterwards, I called my investigator SPO3 de Vera upstairs and gave to him the marijuana for proper
receipts, sir.

Q. After doing so, what happened afterwards?

A. Afterwards, we went downstairs and left, the others proceeded to the office while we brought Joel
Gaspar at the Barangay Hall, sir.
Q. What about the other accused Adoracion Sevilla was she ever arrested on that occasion?

A. Yes, sir.

Q. And where was she brought in particular after the arrest was made?

A. In the district office of the NARCOM, sir.

Q. What happened after Adoracion Sevilla was brought over to the Narcom District Office?

A. After bringing to the Narcom District Office we sent her to the Narcom Office for booking blotter, sir.

COURT:

How about the other accused Joel Gaspar?

A. We brought Joel Gaspar to our office for investigation, we separated them, sir.[48]

xxx xxx xxx

Q. What happened after both of them were already at your office?

A. The investigation was conducted, sir.

Q. And who conducted the investigation?

A. SPO3 de Vera, sir.

Q. Was that investigation conducted in your presence?

A. Yes, sir.

Q. Before the investigation was made what particular steps did SPO3 de Vera undertook (sic)?

A. de Vera appraised them the constitutional right (sic), sir.

Q. Will you please state what is the constitutional right read or appraised (sic) before the two accused?

A. That they have the right to remain silent and if they wanted a lawyer they can have their own lawyer,
sir.

Q. Aside from these two, were there any other constitution right (sic) that were stated before the two
accused?

A. Yes, sir, we further read the constitutional right, sir.

Q. After the appraisal (sic) of the constitutional right of the accused, what happened afterwards Mr.
witness?
A. They remained silent while Adoracion Sevilla did not give any statement, sir.

Q. How about the other accused Joel Gaspar?

A. Only his confession, sir.

xxx xxx xxx

Q. Upon being informed that both the witness refused to give their statement on their own, what step
did SPO3 de Vera undertook (sic) afterwards?

A. He continued conducting the investigation, sir.[49]

xxx xxx xxx

CROSS EXAMINATION:

xxx xxx xxx

ATTY. FERRER:

xxx xxx xxx

Q. The investigation was conducted by the CIS, am I correct in the person of Joel Gaspar (sic)?

A. No, sir.

Q. Who conducted the investigation?

A. SPO3 de Vera, sir.

Q. The investigation was put in writing?

A. Typewritten, sir.

xxx xxx xxx

Q. During the investigation conducted in your office, were you present?

A. Yes, sir.

Q. And you noticed that there was no lawyer representing the person of Joel Gaspar?

A. Yes, sir, Joel Gaspar stated that he knows nothing.

Q. During the whole investigation conducted in your office you were present?
A. Yes, sir.

Q. And there was no lawyer?

A. Yes, sir.

xxx xxx xxx

FISCAL MACARAIG:

Only one re-direct, Your Honor.

COURT:

Proceed.

FISCAL MACARAIG:

Mr. Witness, when the investigation was conducted at your office and according to the defense there
was no counsel despite the reading of constitutional right, please tell us categorically, was there any
forced (sic) made upon the person of the accused while this investigation was conducted?

A. None, sir. [50]

xxx xxx xxx

Therefrom, it can be deduced that appellants were not clearly informed of their constitutional rights to
remain silent and to independent and competent counsel, when they were arrested and investigated in
connection with the offense charged. Simply stating the rights to which the arrestee is entitled to or
reading the same to him did not suffice. Under the rulings of this Court, the right to be informed of ones
right contemplates the transmission of meaningful information rather than just the ceremonial and
perfunctory recitation of an abstract constitutional principle.[51] The right to be informed consists of no
less than effective communication which results in a full understanding of what is conveyed.

The investigating officer is tasked to explain to the person under custody the significance as well as the
consequences of his rights under Section 12, Article III of the Constitution and should not simply assume
that the person arrested fully comprehended the same. To merely say that you have the right to remain
silent and if you want, you can have your own lawyer is not enough. It is not the appraisal of rights
required by law.

Worth stressing upon are the following guidelines laid down by this Court[52] regarding the procedure
to be observed by police officers in effecting an arrest and conducting an investigation:

At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason
for the arrest and he must be shown the warrant of arrest if any. He shall be informed of his
constitutional rights to remain silent and to counsel, and that any statement he might make could be
used against him. The person arrested shall have the right to communicate with his lawyer, a relative or
anyone he chooses by the most expedient means by telephone if possible, or by letter or messenger. It
shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial
investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested,
by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by
anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made
with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down,
whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence.

The fact that there was no lawyer present during the interrogation at the NARCOM district office leads
the Court to question the law enforcers adherence to the constitutional mandate relating to persons
held for the commission of a crime. It reinforces the Courts conclusion that the NARCOM officers did
transgress appellants constitutional rights during, and after their arrest. It does not matter that no force
or coercion was ever employed by them during the investigation, as the prosecution is wont to insist,
because in the absence of any showing that the arresting officers properly complied with what was
incumbent upon them in the performance of their functions, any importunings to that effect would be
futile.

Given the attendant circumstances, the Court cannot uphold the trial courts conclusion that the
policemen regularly performed their duties as public officers. Such presumption has been effectively
rebutted by evidence to the contrary. Besides, as correctly argued by appellant Sevilla in her brief,[53]
the presumption of regularity in the performance of official duty cannot by itself overcome the
presumption of innocence nor constitute proof of guilt beyond reasonable doubt.[54] It must be
emphasized that even granting that appellants were allegedly drug pushers, they would nonetheless be
entitled to their basic constitutional rights.

In sum, the Court is of the irresistible conclusion that there was no probable cause for conducting an
extensive search in the house occupied by appellants. The truthfulness of the facts in support of
probable cause is doubtful and the Court is of the impression that the search in question was not at all
incidental to the lawful arrest of Sevilla but rather, pre-planned. Therefore, any evidence obtained in the
course thereof must be excluded.

The confession allegedly given by Gaspar during custodial interrogation must likewise be rejected for
having been extracted without the assistance of counsel or a valid waiver of legal assistance. As a side
note, it bears emphasizing that Gaspar did not execute a "confession". More accurately, what the
prosecution elicited from Gaspar was actually an admission, the difference being that in a confession, an
accused acknowledges his guilt. There is no such acknowledgment of guilt in an "admission".[55]

Furthermore, the totality of the prosecution evidence before the Court does not measure up to the
requisite quantum of proof for conviction. It is a legal truism that an accused in a criminal case is entitled
to an acquittal unless the prosecution shows that he is guilty beyond reasonable doubt. It is incumbent
upon the State to establish its case with that degree of proof which produces conviction in an
unprejudiced mind with evidence which stands or falls on its own merits. The prosecution cannot be
allowed to draw strength from the weakness of the defenses evidence for it has the onus probandi in
establishing the guilt of the accused - ei incumbit probatio qui dicit, non qui negat - he who asserts, not
he who denies, must prove.[56]

Needless to state, the trial court should have exercised due diligence and prudence in deliberating upon
appellants guilt. It should have given more serious consideration to the pros and cons of the evidence
offered by both the defense and the State and many loose ends should have been settled by the trial
court in determining the merits of the present case. The Court is not unaware that in some instances law
enforcers resort to the practice of planting evidence to extract information or even to harass civilians.
Consequently, the court must be extra vigilant in trying drug cases lest an innocent person is made to
suffer the unusually severe penalties for drug offenses.[57]

WHEREFORE, the Decision under automatic review is REVERSED and SET ASIDE, and appellants
ADORACION SEVILLA Y JOSON @ BABY and JOEL GASPAR Y CABRAL are hereby ACQUITTED of the crime
charged. The Director of the Bureau of Corrections is directed to cause the immediate release of
appellants unless they are being lawfully held for another cause, and to inform the court of the date of
their release, or the ground for their continued confinement, within ten days from notice. Costs de
oficio.

SO ORDERED

SECOND DIVISION

[G.R. No. 106282. January 20, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. QUINCIANO RENDOQUE, SR. y AMORES, VICTORINO
BACUAC y QUISEL, FELIX ESTRELLADO y BACUAC, PABLITO RENDOQUE y ABIO, QUINCIANO RENDOQUE,
JR. y ABIO, and ESPERATO SALAQUIN y BACUAC, accused,

PABLITO RENDOQUE y ABIO, QUINCIANO RENDOQUE, JR. y ABIO, and ESPERATO SALAQUIN y BACUAC,
accused-appellants.

DECISION

QUISUMBING, J.:

Appellants assail the decision of the Regional Trial Court of Dumaguete City, Branch 36,[1] in Criminal
Case No. 8341, convicting them of the crime of murder, imposing upon them the penalty of reclusion
perpetua, and ordering them to indemnify the heirs of the victim the amount of P30,000.00, and to pay
the costs. Their co-accused Quinciano Rendoque, Sr. y Amores, Victorino Bacuac y Quisel, and Felix
Estrellado y Bacuac were acquitted for failure of the prosecution to prove their guilt beyond reasonable
doubt.

The facts, as summarized by the Office of the Solicitor General and which we find to be supported by the
records, are as follows:[2]

"On or about 8:00 oclock in the evening of April 21, 1988, Abundio Sido and the members of his family
were resting inside their house at Barangay Basiao, Municipality of San Jose, Negros Oriental. All of a
sudden, a group of armed men, six in number, arrived. One of them shouted "Abundio Sido lumabas
kayo, mga military kami" (pp. 7-8, tsn, March 1, 1989; p. 5-6, tsn, June 14, 1989). In return, Abundio
answered, "you come up, we will talk upstairs" (p. 9, tsn, March 1, 1989). The group however, insisted
that he comes (sic) down and so, Abundio instructed his wife Florida to open the door. The latter,
accompanied by her daughter Elvie who was holding a kerosene lamp, proceeded towards the door to
open it. When the door was opened, Florida and her daughter by the aid of the kerosene lamp were
able to recognize the six armed men standing in front of their house wearing fatigue uniforms as Pablito
Rendoque, Esperato Salaquin, Quinciano Rendoque, Sr., Quinciano Rendoque, Jr., Victorino Bacuac and
Felix Estrellado. With the exception of Quinciano Rendoque, Sr. who was seen carrying a revolver, the
rest were all armed with shotguns (pp. 10-11, tsn, March 1, 1989; p. 8, tsn, June 14, 1989). Jj lex

On that occasion when the door was opened, Pablito Rendoque shouted "fire" to his companions. In
obedience to his order, Esperato Salaquin and Quinciano Rendoque, Jr. aimed and fired their respective
shotguns towards the direction of the wall inside the house where Abundio was sitting. As a result, the
victim was hit at the back and on the left shoulder by pellets which caused his death (pp. 11-12, tsn,
March 1, 1989; pp. 9-10, tsn, June 14, 1989). Thereafter, the armed group left leaving Abundios dead
body behind (id.)

Dr. Bienvenida Palongpalong, Municipal Health Officer of San Jose, Negros Oriental, was able to conduct
a post-mortem examination of the cadaver of Abundio Sido and it was found that the latter sustained
gunshot wounds at the deltoid region and at the back lumber vertebrae which caused severe
hemorrhage resulting in his death (p. 10, tsn, May 23, 1990)."

Following police investigation, a criminal complaint for murder[3] was filed against all six (6) accused. At
the preliminary investigation, they waived the filing of counter-affidavits.[4] The Municipal Trial Judge
issued a Resolution[5] finding sufficient ground to engender a well-founded belief that a crime
cognizable by the Regional Trial Court has been committed and that accused are probably guilty thereof
and should be held for trial, and forwarded the records of the case to the Provincial Prosecutor of
Dumaguete City, Negros Oriental for the filing of the appropriate Information. The six (6) accused were
accused of murder under an Information,[6] which pertinently reads as follows:

n or about the 21st day of April, 1988, at Barangay Basere willfully, unlawfully and feloniously assault,
attack and shoot Abundio Sido with the use of home made firearms, thereby inflicting upon the body of
Abundio Sido the following injuries, to wit:

1. Gunshot wounds 8 in number, 1 cm. in diameter, (L) Deltoid region;

2. 8 gunshot wounds 1 cm. in diameter x 3 inc depthness, back (not legible) 2nd and 3rd and 4th Lumbar
vertebrae.

which directly caused the death of Abundio Sido immediately thereafter.

Contrary to Article 248 of the Revised Penal Code.

Dumaguete City, Philippines, August 26, 1988."

Upon arraignment, the accused, duly assisted by counsel, entered pleas of "not guilty."[7] Through
counsel, they filed a Motion for Consolidation[8] with another criminal case against the same accused,
for murder involving the brother of the victim herein, committed on the same night. In its Order dated
November 24, 1988,[9] the trial court, however, denied said Motion because the proceedings had
already reached different stages. Sppedsc

The prosecution presented the following witnesses: (1) Elvie Sido, the 15 year-old daughter of the
victim; (2) Florida Sido, the widow of the victim, both eyewitnesses to the shooting incident; (3) Dra.
Bienvenida Palongpalong, Municipal Health Officer of San Jose, Negros Oriental, who conducted the
post-mortem examination on the victim and testified that the cause of death was "severe hemorrhage
resulting from the (gunshot) wounds of the victim."[10]

Testifying on their behalf, appellants interposed the defenses of denial and alibi. Appellant Pablito
Rendoque claimed that on April 21, 1988, from 7 oclock in the evening until 7:00 the following morning,
he was on duty as a security guard at Master Footwear in Dumaguete City.[11] His testimony was
supported by the testimonies of several witnesses. Eduardo Dingal, his co-security guard, testified that
appellant Pablito Rendoque relieved him from duty at 7:00 P.M. of April 21, 1988.[12] Dingals wife, also
testified that she visited her husband at Master Footwear at 7:00 P.M., and saw appellant Pablito
Rendoque take over her husbands post.[13] Ernesto Amistoso, a member of the PNP, San Jose, Negros
Oriental, also testified that the day after the incident, he confirmed with Dingal that appellant Pablito
Rendoque relieved him from duty the previous night.[14] Aniano Eliseo, Officer-In-Charge of the
Sherlock Security Agency, testified that he conducted an inspection of the guards of the agency and saw
appellant Pablito Rendoque at his post in Master Footwear at around 7:00 on the night of the
incident.[15]

The other five accused testified that on April 21, 1988, from 6 oclock in the evening until around 8
oclock the following morning, they were in the house of Placido Despojo at Sto. Nio, San Jose, Negros
Oriental to attend an "Anti-Communist Trust In Oriental Negros" (ACTION) seminar, which however, was
postponed to the following day.[16] Placido Despojo confirmed this fact.[17] Millard Generoso, the
District Commander of ACTION, testified that on April 22, 1988, the day after the incident, the five
accused, except for appellant Pablito Rendoque, were at his house in Calindagan, Dumaguete City from
around 8 oclock in the morning up to 11 oclock in the evening attending the seminar.[18] Misj uris

The defense also presented as its witness Patrolman Fred Redira, who testified that on the night of the
incident, one Celso Turtal reported to him that he (Turtal) was requested by the wife of the victim to
inform the authorities that the victim was shot by "unidentified men."[19] The defense also presented
Patrolman Antonio Ramirez, the Officer-in-Charge of the Police Station,[20] and the custodian of the
police logbook containing the aforesaid report. Patrolman Ramirez testified that he prepared the
affidavits of Elvie and Florida Sido wherein they stated that the persons who shot the victim were
Pablito Rendoque and Esperato Salaquin only. However, Patrolman Ramirez claimed that the Municipal
Mayor borrowed the affidavits and never returned them again. He also testified that the affidavits of
Elvie and Florida Sido which were presented to him in court for identification were new affidavits, and
not the ones which he prepared.[21]

On January 6, 1992, the trial court rendered a decision[22] convicting the three (3) appellants. As
already stated, their three (3) co-accused were acquitted for failure of the prosecution to prove their
guilt beyond reasonable doubt. The dispositive portion of the decision reads:

"FOR ALL THE FOREGOING CONSIDERATIONS, this court finds the accused Esperato Salaquin, Quinciano
Rendoque, Jr., and Pablito Rendoque guilty beyond doubt of the crime of murder defined and penalized
under Article 248 of the Revised Penal Code and sentences each one of them to suffer the penalty of
Reclusion Perpetua, to indemnify the heirs of the offended party of the sum of P30,000.00 and to pay
the cost. The instruments used if confiscated by the government are deemed forfeited. The accused
Quinciano Rendoque, Sr., Victorino Bacuac and Felix Estrellado whose guilt are not established beyond
doubt are acquitted.

SO ORDERED."
Hence, the present appeal. In their consolidated brief, appellants assign the following errors:

"I. THE REGIONAL TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE AND MORE WEIGHT TO THE
TESTIMONIES OF PROSECUTION WITNESSES ELVIE SIDO AND FLORIDA SIDO AND DID NOT CONSIDER
THE TESTIMONIES OF P/CPL ANTONIO RAMIREZ AND PATROLMAN FRED REDIRA REGARDING THE ENTRY
IN THE LOGBOOK ON APRIL 21, 1988, AS REPORTED BY A CERTAIN CELSO TURTAL, EXHIBIT "1" FOR THE
DEFENSE WHICH WAS NOT ADMITTED BY THE COURT AND THE VEHEMENT REFUSAL AND OBJECTION
OF THE COURT TO ALLOW FLORIDA SIDO TO TESTIFY IN COURT PERTINENT TO EXHIBIT "1", AS A HOSTILE
WITNESS, DESPITE THE CONFORMITY OF FISCAL EDUVIGIS VERGARA IN OPEN COURT. Ed p

II. THAT THE LOWER COURT COMMITTED A SERIOUS ERROR IN GIVING MORE CREDENCE TO THE
TESTIMONIES OF ELVIE SIDO AND FLORIDA SIDO AND TO DISREGARDED (sic) THE ALIBI OF THE ACCUSED
PABLITO RENDOQUE, SUPPORTED BY THE TESTIMONIES OF WITNESSES ELISEO ANIANO, OFFICER-IN-
CHARGE OF SHERLOCK AGENCY WITH DOCUMENTARY EVIDENCE, ELSAULA DINGAL, EDUARDO DINGAL
AND ERNESTO AMISTOSO.

III. THAT THE LOWER COURT ERRED IN NOT GIVING CONSIDERATION OF THE ALIBI OF THE ACCUSED
QUINCIANO RENDOQUE, JR., ESPERATO SALAQUIN, ACCUSED-APPELLANTS AND CORROBORATED BY
THE REST OF THE ACCUSED AND SUPPORTED BY THE TESTIMONIES OF PLACIDO DESPOJO AND MILLARD
GENEROSO."

Appellants brief contends that the trial court erred in not considering the entry in the police logbook,
and the testimonies of the custodian and the entrant thereof that the victims wife asked Celso Turtal to
report to the authorities that her husband was shot by "unidentified men" while sitting on the porch of
their house. Appellants claim that the statement of the widow should have been considered as part of
the res gestae under Section 42 of Rule 130 of the Rules of Court. Further, appellants insist that the trial
court erred in not considering the Affidavit of Confirmation executed by Celso Turtal regarding the
incident. Appellants contend that the trial court erred in not allowing the defense to present Florida Sido
as a hostile witness. The foregoing evidence, appellants claim, if properly considered, would destroy the
positive identification of appellants and co-accused as the perpetrators of the shooting incident.
Appellants also fault the trial court for not giving due credence to the defenses of denial and alibi of
appellants considering that these were sufficiently supported by the testimonies of their numerous
witnesses. Mi sedp

The Office of the Solicitor General, on the other hand, contends that the issues raised pertain to the
credibility of witnesses, the assessment of which is within the province of the trial court. In fact, the
defense failed to point any significant flaw in the testimonies of the prosecution witnesses. The OSG
further asserts that the entries in the police logbook cannot be correlated to the alleged Affidavit of
Confirmation of one Celso Turtal because the latters affidavit is inadmissible for being hearsay. The OSG
also contends that the trial court could not be faulted for denying the request of the defense to make
Florida Sido a hostile witness since the defense already cross-examined said witness extensively
regarding her identification of the assailants. On the defenses of denial and alibi, the OSG cites the
finding of the trial court that the place of work of Pablito Rendoque and the house of Placido Despojo
are a mere eight (8) kilometers away from the locus criminis. The OSG likewise prays that the award of
death indemnity be increased from P30,000.00 to P50,000.00 pursuant to existing jurisprudence.
The crucial issue raised by appellants, in our view, pertains solely to the credibility of the prosecution
witnesses. In particular, we have to consider the positive identification of appellants as the perpetrators
of the offense as against their defenses of denial and alibi.

In a long line of cases, the Court has consistently held that the determination of credibility of a witness is
properly within the domain of the trial court as it is in the best position to observe his demeanor and
bodily movements.[23] Findings of the trial court with respect to the credibility of witnesses and their
testimonies are entitled to great respect, and even finality,[24] unless said findings are arbitrary, or facts
and circumstances of weight and influence have been overlooked, misunderstood, or misapplied by the
trial judge which, if considered, would have affected the case.[25] In the present appeal, after a
thorough review of the records, no cogent reason justifies our departure from the aforecited salutory
rule. We are constrained not to disturb the factual findings of the trial court.

The two eyewitnesses, Elvie and Florida Sido, positively identified appellants as the perpetrators of the
fatal shooting.[26] Both clearly narrated on the witness stand the extent of the appellants participation
in the incident. They categorically testified that appellant Pablito Rendoque gave the order to "fire,"[27]
and in obedience to such order, appellants Esperato Salaquin and Quinciano Rendoque, Jr., fired their
guns (known locally as bali-ontod) against the victim.[28] Witness Elvie Sido said that as the shooting
was going on, she was rooted on the spot, looking at the faces of the men firing at her father.[29]
Although the incident occurred at nighttime, the house of the victim was sufficiently illuminated by two
kerosene lamps (lamparillas), one carried by the daughter of the victim and another located near the
victim,[30] which cast enough light for purposes of identification. Numerous cases have held that
illumination coming from a kerosene lamp (also called "gasera") is sufficient for purposes of
identification of an assailant.[31] Aside from the sufficient lighting, the two eyewitnesses were familiar
with the faces of the assailants because they were townmates,[32] and appellants did not even bother
to hide their identities by covering their faces.[33] S djad

Appellants admitted that they could not ascribe any ill-motive against the prosecution witnesses to
falsely testify against them.[34] Absent any evidence showing any reason or motive for prosecution
witnesses to perjure, the logical conclusion is that no such improper motive exists, and their testimonies
are thus worthy of full faith and credit.[35] The fact that the witnesses were the daughter and the
widow of the deceased could not impair their credibility. Blood or conjugal relationship between a
witness and the victim does not per se impair the credibility of the witness. On the contrary, relationship
itself could strengthen credibility in a particular case, for it is unnatural for an aggrieved relative to
falsely accuse someone other than the actual culprit. The earnest desire to seek justice for a dead kin is
not served should the witness abandon his conscience and prudence to blame one who is innocent of
the crime.[36]

Failing to demolish the positive testimonies of the prosecution witnesses, appellants now make a
belated attempt to impeach their testimonies. Appellants fault the trial court for not considering the
Affidavit of Celso Turtal that Florida Sido told him that the assailants were "unidentified men." The trial
court correctly disregarded said affidavit for being hearsay since Turtal did not testify in court. An
affidavit is generally hearsay, and has no probative value unless the affiant himself is placed on the
witness stand to testify thereon.[37] Hence, the trial court correctly rejected the admission of such
affidavit in evidence.

As to the police logbook which was presented in evidence to prove the contents thereof, we have held
that entries in the police blotter should not be given undue significance or probative value, as they do
not constitute conclusive proof of the truth thereof.[38] Entries in police blotters, although regularly
done in the course of the performance of official duty, are not conclusive proof of the truth stated in
such entries and should not be given undue significance or probative value because they are usually
incomplete and inaccurate. Sometimes they are based on partial suggestion or inaccurate reporting and
hearsay, untested in the crucible of a trial on the merits.[39] LEX

Appellant Pablito Rendoques defenses of denial and alibi, in our view, could not be sustained. Although
supported by testimonies of his superior and the guard who relieved him on the night of the incident, as
well as the guards wife, they do not exculpate him. We have already ruled that for alibi to prosper, it is
not enough to prove that appellant was somewhere else when the offense was committed. It must
likewise be shown that he was so far away that it was not possible for him to have been physically
present at the place of the crime or its immediate vicinity at the time of its commission.[40] It should be
noted that appellant was seen by said witnesses at his post at 7 oclock in the evening, while the
shooting incident occurred at 8 oclock in the evening. Appellant failed to prove that it was impossible for
him to have been physically present in the locus criminis at the very time of its commission. As to
Quinciano Rendoque, Jr. and Esperato Salaquin, the other two appellants, their alibis are equally
unavailing. Though the testimony of Placido Despojo sought to support them, their defense is far from
persuasive. As observed by the trial court, there is no proof of physical impossibility for these appellants
to be present in the locus criminis. Well settled is the doctrine that alibi is a weak defense and should be
rejected when the identities of the accused, as in this case, have been sufficiently and positively
established by eyewitnesses to the offense.[41] Hence, in the light of the positive identification of
appellants by two eyewitnesses as the perpetrators of the crime, their defenses of denial and alibi could
not prosper.[42]

As proved, the crime committed by the three appellants is murder, since the killing was qualified by
treachery. Treachery attended the killing because at the time of the shooting, the victim was unarmed,
sitting inside his house, and was evidently not in a position to defend himself.[43] Further, appellants
consciously adopted the particular means, method or form of attack employed by them when they went
to the house of the victim armed with shotguns.[44]

The generic aggravating circumstance of abuse of superior strength attended the killing, but is already
absorbed in treachery.[45] Evident premeditation while alleged in the Information was not sufficiently
proven by the prosecution, and therefore cannot be appreciated.

But since the victim was killed inside his house, even though the assailants were outside the house, the
aggravating circumstance of dwelling should be appreciated.[46] Dwelling is considered an aggravating
circumstance because primarily of the sanctity of privacy the law accords to human abode.[47]

As to the actual participation of appellants in the crime charged, appellant Pablito Rendoque, having
given the order to shoot at the victim, is liable as a principal under Article 17, No. 1 and No. 2 of the
Revised Penal Code. His participation is direct; at the same time he induced his co-appellants Esperato
Salaquin and Quinciano Rendoque, Jr. to commit the offense. These co-appellants obeyed the order by
firing their shotguns at the victim, hence they acted as principals by direct participation under Article 17,
No. 1 of the Revised Penal Code. The three appellants acted in concert and helped each other
accomplish the nefarious deed.talions

The award of death indemnity in the amount of P30,000.00 should be increased to P50,000.00, pursuant
to existing jurisprudence.[48] No moral damages can be awarded since the wife and daughter of the
victim did not testify with regard to moral damages. In view of the attendance of an aggravating
circumstance, pursuant to Article 2230 of the Civil Code, exemplary damages in the amount of
P20,000.00 should be awarded.[49]

WHEREFORE, the decision of the trial court finding appellants PABLITO RENDOQUE, ESPERATO
SALAQUIN AND QUINCIANO RENDOQUE, JR. guilty of the crime of MURDER and sentencing them to
RECLUSION PERPETUA is AFFIRMED with MODIFICATION as to damages. Appellants are hereby ordered
to pay the heirs of the victim the amounts of P50,000.00 as indemnity and P20,000.00 as exemplary
damages. Costs against appellants.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.2/1

Republic of the Philippines

Supreme Court

Manila

THIRD DIVISION

SEAOIL PETROLEUM CORPORATION,

Petitioner,

- versus -

AUTOCORP GROUP and PAUL Y. RODRIGUEZ,

Respondents.

G.R. No. 164326

Present:

YNARES-SANTIAGO, J.,

Chairperson,

AUSTRIA-MARTINEZ,

AZCUNA,*

CHICO-NAZARIO, and

NACHURA, JJ.

Promulgated:

October 17, 2008

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:
Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the
Decision[1] of the Court of Appeals (CA) dated May 20, 2004 in CA-G.R. CV No. 72193, which had
affirmed in toto the Decision[2] of the Regional Trial Court (RTC) of Pasig City, Branch 157, dated
September 10, 2001 in Civil Case No. 64943.

The factual antecedents, as summarized by the CA, are as follows:

On September 24, 1994, defendant-appellant Seaoil Petroleum Corporation (Seaoil, for brevity)
purchased one unit of ROBEX 200 LC Excavator, Model 1994 from plaintiff-appellee Autocorp Group
(Autocorp for short). The original cost of the unit was P2,500,000.00 but was increased to P3,112,519.94
because it was paid in 12 monthly installments up to September 30, 1995. The sales agreement was
embodied in the Vehicle Sales Invoice No. A-0209 and Vehicle Sales Confirmation No. 258. Both
documents were signed by Francis Yu (Yu for short), president of Seaoil, on behalf of said corporation.
Furthermore, it was agreed that despite delivery of the excavator, ownership thereof was to remain
with Autocorp until the obligation is fully settled. In this light, Seaoils contractor, Romeo Valera, issued
12 postdated checks. However, Autocorp refused to accept the checks because they were not under
Seaoils name. Hence, Yu, on behalf of Seaoil, signed and issued 12 postdated checks for P259,376.62
each with Autocorp as payee.

The excavator was subsequently delivered on September 26, 1994 by Autocorp and was received by
Seaoil in its depot in Batangas.

The relationship started to turn sour when the first check bounced. However, it was remedied when
Seaoil replaced it with a good check. The second check likewise was also good when presented for
payment. However, the remaining 10 checks were not honored by the bank since Seaoil requested that
payment be stopped. It was downhill from thereon.

Despite repeated demands, Seaoil refused to pay the remaining balance of P2,593,766.20. Hence, on
January 24, 1995, Autocorp filed a complaint for recovery of personal property with damages and
replevin in the Regional Trial Court of Pasig. The trial court ruled for Autocorp. Hence, this appeal.
Seaoil, on the other hand, alleges that the transaction is not as simple as described above. It claims that
Seaoil and Autocorp were only utilized as conduits to settle the obligation of one foreign entity named
Uniline Asia (herein referred to as Uniline), in favor of another foreign entity, Focus Point International,
Incorporated (Focus for short). Paul Rodriguez (Rodriguez for brevity) is a stockholder and director of
Autocorp. He is also the owner of Uniline. On the other hand, Yu is the president and stockholder of
Seaoil and is at the same time owner of Focus. Allegedly, Uniline chartered MV Asia Property (sic) in the
amount of $315,711.71 from its owner Focus. Uniline was not able to settle the said amount. Hence,
Uniline, through Rodriguez, proposed to settle the obligation through conveyance of vehicles and heavy
equipment. Consequently, four units of Tatamobile pick-up trucks procured from Autocorp were
conveyed to Focus as partial payment. The excavator in controversy was allegedly one part of the
vehicles conveyed to Focus. Seaoil claims that Rodriguez initially issued 12 postdated checks in favor of
Autocorp as payment for the excavator. However, due to the fact that it was company policy for
Autocorp not to honor postdated checks issued by its own directors, Rodriguez requested Yu to issue 12
PBCOM postdated checks in favor of Autocorp. In turn, said checks would be funded by the
corresponding 12 Monte de Piedad postdated checks issued by Rodriguez. These Monte de Piedad
checks were postdated three days prior to the maturity of the PBCOM checks.

Seaoil claims that Rodriguez issued a stop payment order on the ten checks thus constraining the former
to also order a stop payment order on the PBCOM checks.

In short, Seaoil claims that the real transaction is that Uniline, through Rodriguez, owed money to Focus.
In lieu of payment, Uniline instead agreed to convey the excavator to Focus. This was to be paid by
checks issued by Seaoil but which in turn were to be funded by checks issued by Uniline. x x x[3]

As narrated above, respondent Autocorp filed a Complaint for Recovery of Personal Property with
Damages and Replevin[4] against Seaoil before the RTC of Pasig City. In its September 10, 2001 Decision,
the RTC ruled that the transaction between Autocorp and Seaoil was a simple contract of sale payable in
installments.[5] It also held that the obligation to pay plaintiff the remainder of the purchase price of the
excavator solely devolves on Seaoil. Paul Rodriguez, not being a party to the sale of the excavator, could
not be held liable therefor. The decretal portion of the trial courts Decision reads, thus:

WHEREFORE, judgment is hereby rendered in favor of plaintiff Autocorp Group and against defendant
Seaoil Petroleum Corporation which is hereby directed to pay plaintiff:
- P2,389,179.23 plus 3% interest from the time of judicial demand until full payment; and

- 25% of the total amount due as attorneys fees and cost of litigation.

The third-party complaint filed by defendant Seaoil Petroleum Corporation against third-party
defendant Paul Rodriguez is hereby DISMISSED for lack of merit.

SO ORDERED.

Seaoil filed a Petition for Review before the CA. In its assailed Decision, the CA dismissed the petition
and affirmed the RTCs Decision in toto.[6] It held that the transaction between Yu and Rodriguez was
merely verbal. This cannot alter the sales contract between Seaoil and Autocorp as this will run counter
to the parol evidence rule which prohibits the introduction of oral and parol evidence to modify the
terms of the contract. The claim that it falls under the exceptions to the parol evidence rule has not
been sufficiently proven. Moreover, it held that Autocorps separate corporate personality cannot be
disregarded and the veil of corporate fiction pierced. Seaoil was not able to show that Autocorp was
merely an alter ego of Uniline or that both corporations were utilized to perpetrate a fraud. Lastly, it
held that the RTC was correct in dismissing the third-party complaint since it did not arise out of the
same transaction on which the plaintiffs claim is based, or that the third partys claim, although arising
out of another transaction, is connected to the plaintiffs claim. Besides, the CA said, such claim may be
enforced in a separate action.

Seaoil now comes before this Court in a Petition for Review raising the following issues:

Whether or not the Court of Appeals erred in partially applying the parol evidence rule to prove only
some terms contained in one portion of the document but disregarded the rule with respect to another
but substantial portion or entry also contained in the same document which should have proven the
true nature of the transaction involved.
II

Whether or not the Court of Appeals gravely erred in its judgment based on misapprehension of facts
when it declared absence of facts which are contradicted by presence of evidence on record.

III

Whether or not the dismissal of the third-party complaint would have the legal effect of res judicata as
would unjustly preclude petitioner from enforcing its claim against respondent Rodriguez (third-party
defendant) in a separate action.

IV

Whether or not, given the facts in evidence, the lower courts should have pierced the corporate veil.

The Petition lacks merit. We sustain the ruling of the CA.

We find no fault in the trial courts appreciation of the facts of this case. The findings of fact of the trial
court are conclusive upon this Court, especially when affirmed by the CA. None of the exceptions to this
well-settled rule has been shown to exist in this case.

Petitioner does not question the validity of the vehicle sales invoice but merely argues that the same
does not reflect the true agreement of the parties. However, petitioner only had its bare testimony to
back up the alleged arrangement with Rodriguez.
The Monte de Piedad checks the supposedly clear and obvious link[7] between the documentary
evidence and the true transaction between the parties are equivocal at best. There is nothing in those
checks to establish such link. Rodriguez denies that there is such an agreement.

Unsubstantiated testimony, offered as proof of verbal agreements which tends to vary the terms of a
written agreement, is inadmissible under the parol evidence rule.[8]

Rule 130, Section 9 of the Revised Rules on Evidence embodies the parol evidence rule and states:

SEC. 9. Evidence of written agreements.When the terms of an agreement have been reduced to writing,
it is considered as containing all the terms agreed upon and there can be, between the parties and their
successors-in-interest, no evidence of such terms other than the contents of the written agreement.

However, a party may present evidence to modify, explain or add to the terms of the written agreement
if he puts in issue in his pleading:

(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;

(b) The failure of the written agreement to express the true intent and agreement of the parties thereto;

(c) The validity of the written agreement; or

(d) The existence of other terms agreed to by the parties or their successors-in-interest after the
execution of the written agreement.

The term "agreement" includes wills.

The parol evidence rule forbids any addition to, or contradiction of, the terms of a written agreement by
testimony or other evidence purporting to show that different terms were agreed upon by the parties,
varying the purport of the written contract.[9]

This principle notwithstanding, petitioner would have the Court rule that this case falls within the
exceptions, particularly that the written agreement failed to express the true intent and agreement of
the parties. This argument is untenable.

Although parol evidence is admissible to explain the meaning of a contract, it cannot serve the purpose
of incorporating into the contract additional contemporaneous conditions which are not mentioned at
all in the writing unless there has been fraud or mistake.[10] Evidence of a prior or contemporaneous
verbal agreement is generally not admissible to vary, contradict or defeat the operation of a valid
contract.[11]

The Vehicle Sales Invoice[12] is the best evidence of the transaction. A sales invoice is a commercial
document. Commercial documents or papers are those used by merchants or businessmen to promote
or facilitate trade or credit transactions.[13] Business forms, e.g., order slip, delivery charge invoice and
the like, are commonly recognized in ordinary commercial transactions as valid between the parties and,
at the very least, they serve as an acknowledgment that a business transaction has in fact
transpired.[14] These documents are not mere scraps of paper bereft of probative value, but vital pieces
of evidence of commercial transactions. They are written memorials of the details of the consummation
of contracts.[15]

The terms of the subject sales invoice are clear. They show that Autocorp sold to Seaoil one unit Robex
200 LC Excavator paid for by checks issued by one Romeo Valera. This does not, however, change the
fact that Seaoil Petroleum Corporation, as represented by Yu, is the customer or buyer. The moment a
party affixes his or her signature thereon, he or she is bound by all the terms stipulated therein and is
subject to all the legal obligations that may arise from their breach.[16]

Oral testimony on the alleged conditions, coming from a party who has an interest in the
outcome of the case, depending exclusively on human memory, is not as reliable as written or
documentary evidence.[17]

Hence, petitioners contention that the document falls within the exception to the parol evidence rule is
untenable. The exception obtains only where the written contract is so ambiguous or obscure in terms
that the contractual intention of the parties cannot be understood from a mere reading of the
instrument. In such a case, extrinsic evidence of the subject matter of the contract, of the relations of
the parties to each other, and of the facts and circumstances surrounding them when they entered into
the contract may be received to enable the court to make a proper interpretation of the instrument.[18]

Even assuming there is a shred of truth to petitioners contention, the same cannot be made a basis for
holding respondents liable therefor.

As pointed out by the CA, Rodriguez is a person separate and independent from Autocorp. Whatever
obligations Rodriguez contracted cannot be attributed to Autocorp[19] and vice versa. In fact, the
obligation that petitioner proffers as its defense under the Lease Purchase Agreement was not even
incurred by Rodriguez or by Autocorp but by Uniline.

The Lease Purchase Agreement[20] clearly shows that the parties thereto are two corporations not
parties to this case: Focus Point and Uniline. Under this Lease Purchase Agreement, it is Uniline, as
lessee/purchaser, and not Rodriguez, that incurred the debt to Focus Point. The obligation of Uniline to
Focus Point arose out of a transaction completely different from the subject of the instant case.

It is settled that a corporation has a personality separate and distinct from its individual stockholders or
members, and is not affected by the personal rights, obligations and transactions of the latter.[21] The
corporation may not be held liable for the obligations of the persons composing it, and neither can its
stockholders be held liable for its obligation.[22]

Of course, this Court has recognized instances when the corporations separate personality may be
disregarded. However, we have also held that the same may only be done in cases where the corporate
vehicle is being used to defeat public convenience, justify wrong, protect fraud, or defend crime.[23]
Moreover, the wrongdoing must be clearly and convincingly established. It cannot be presumed.[24]

To reiterate, the transaction under the Vehicle Sales Invoice is separate and distinct from that under the
Lease Purchase Agreement. In the former, it is Seaoil that owes Autocorp, while in the latter, Uniline
incurred obligations to Focus. There was never any allegation, much less any evidence, that Autocorp
was merely an alter ego of Uniline, or that the two corporations separate personalities were being used
as a means to perpetrate fraud or wrongdoing.
Moreover, Rodriguez, as stockholder and director of Uniline, cannot be held personally liable for the
debts of the corporation, which has a separate legal personality of its own. While Section 31 of the
Corporation Code[25] lays down the exceptions to the rule, the same does not apply in this case. Section
31 makes a director personally liable for corporate debts if he willfully and knowingly votes for or
assents to patently unlawful acts of the corporation. Section 31 also makes a director personally liable if
he is guilty of gross negligence or bad faith in directing the affairs of the corporation.[26] The bad faith
or wrongdoing of the director must be established clearly and convincingly. Bad faith is never
presumed.[27]

The burden of proving bad faith or wrongdoing on the part of Rodriguez was, on petitioner, a burden
which it failed to discharge. Thus, it was proper for the trial court to have dismissed the third-party
complaint against Rodriguez on the ground that he was not a party to the sale of the excavator.

Rule 6, Section 11 of the Revised Rules on Civil Procedure defines a third-party complaint as a claim that
a defending party may, with leave of court, file against a person not a party to the action, called the
third-party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his
opponents claim.

The purpose of the rule is to permit a defendant to assert an independent claim against a third party
which he, otherwise, would assert in another action, thus preventing multiplicity of suits.[28] Had it not
been for the rule, the claim could have been filed separately from the original complaint.[29]

Petitioners claim against Rodriguez was fully ventilated in the proceedings before the trial court, tried
and decided on its merits. The trial courts ruling operates as res judicata against another suit involving
the same parties and same cause of action. This is rightly so because the trial court found that Rodriguez
was not a party to the sale of the excavator. On the other hand, petitioner Seaoils liability has been
successfully established by respondent.

A last point. We reject Seaoils claim that the ownership of the subject excavator, having been legally and
completely transferred to Focus Point International, Inc., cannot be subject of replevin and plaintiff
[herein respondent Autocorp] is not legally entitled to any writ of replevin.[30] The claim is negated by
the sales invoice which clearly states that [u]ntil after the vehicle is fully paid inclusive of bank clearing
time, it remains the property of Autocorp Group which reserves the right to take possession of said
vehicle at any time and place without prior notice.[31]
Considering, first, that Focus Point was not a party to the sale of the excavator and, second, that Seaoil
indeed failed to pay for the excavator in full, the same still rightfully belongs to Autocorp. Additionally,
as the trial court found, Seaoil had already assigned the same to its contractor for the construction of its
depot in Batangas.[32] Hence, Seaoil has already enjoyed the benefit of the transaction even as it has
not complied with its obligation. It cannot be permitted to unjustly enrich itself at the expense of
another.

WHEREFORE, the foregoing premises considered, the Petition is hereby DENIED. The Decision of the
Court of Appeals dated May 20, 2004 in CA-G.R. CV No. 72193 is AFFIRMED.

SO ORDERED.

FIRST DIVISION

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

- versus -

MARIO CASTRO,
Accused-Appellant.

G.R. No. 172874

Present:

PUNO, C.J., Chairperson,

CARPIO,

CHICO-NAZARIO,*

VELASCO, JR.,** and

LEONARDO-DE CASTRO, JJ.

Promulgated:

December 17, 2008

x------------------------------------------------------------------------------x

DECISION

LEONARDO-DE CASTRO, J.:

On appeal is the decision[1] dated February 15, 2006 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
00126 which affirmed in toto an earlier decision[2] of the Regional Trial Court of Pasig City, Branch 162
in Criminal Case No. 117506-H, finding accused-appellant guilty beyond reasonable doubt of the crime
of Rape and imposing upon him the penalty of reclusion perpetua.

Consistent with our decision in People v. Cabalquinto,[3] the real name of the rape victim in this case is
withheld and instead, fictitious initials are used to represent her. Also, the personal circumstances of the
victim or any other information tending to establish or compromise her identity, as well as those of her
immediate family or household members, are not disclosed in this decision.

In the court of origin, accused-appellant was charged with the crime of rape in an Information[4] dated
February 2, 2000. The crime was alleged to have been committed as follows:

On or about November 11, 1999, in Taguig, Metro Manila and within the jurisdiction of this Honorable
Court, the accused, by means of force and intimidation, did then and there willfully, unlawfully and
feloniously have sexual intercourse with his sister-in-law, [AAA], a minor, fourteen (14) years of age,
against her will and consent. (Word in bracket ours)

CONTRARY TO LAW.

When arraigned on July 12, 2000, accused-appellant, assisted by counsel de oficio, pleaded not guilty to
the crime charged. Thereafter, trial on the merits ensued, in the course of which the prosecution
presented the testimony of the victim herself. The testimony of Jurita Olvido was dispensed with after
both parties agreed to stipulate on the following: (1) that she is a social welfare officer of the
Department of Social Welfare and Development; (2) that she assisted the victim in filing a complaint due
to her minority; and (3) that the due execution of her statement is admitted.[5]

For its part, the defense presented Margarita Salangsang as its lone witness. Accused-appellant opted
not to testify.
The prosecutions version of the incident is succinctly summarized by the Office of the Solicitor General
in its Appellees Brief,[6] to wit:

Private complainant [AAA], is a fourteen (14) year old lass having been born on July 8, 1985. Appellant
Mario Castro is the husband of [BBB], elder sister of [AAA].

On November 11, 1999 at about 11:00 in the evening, appellant fetched [AAA] from her Aunts house at
PNR Compound, Taguig Metro Manila. He said that her elder sister, [BBB], collapsed and was in the
clinic. Believing the story, [AAA] went with appellant.

As events turned out, appellant brought [AAA] - - not in the clinic - - but near TEMIC Factory, which is an
old abandoned building located at Western Bicutan, Taguig, Metro Manila. As they reached a dark
narrow alley, appellant suddenly stopped and held [AAA]s left arm. Startled and frightened, [AAA]
screamed for help but nobody seemed to have heard the outcry. Wasting no time, appellant strangled
her, with a threat to keep quiet lest he would kill her. [AAA] was cowed into silence. She felt helpless as
she knew that appellant had killed someone before.

Appellant hurriedly pulled [AAA] to the side of a building and told her to undress. When she refused,
appellant undressed her, after which, he undressed himself. [AAA] could not run away as appellant
pressed her against the wall of the building and blocked her way. When both of them were already
naked, appellant kissed her on the different parts of her body and, in an instant, forced his penis into
her vagina until he satisfied his lust.

Once satiated, appellant told [AAA] to dress up and warned her not to tell anybody. Appellant initially
brought her to the bus and jeepney terminal but he later changed his mind. He told [AAA] that they have
to go to Kuya Mannys work place. Still overwhelmed with shock and fear, [AAA] could not resist. When
appellant learned that Kuya Manny was not at work, he brought [AAA] again to the dark narrow alley
beside Temic Factory. This time, however, they passed by a different route which is near Pepsi.

As before, appellant asked [AAA] to undress. When she refused, he himself removed her clothes
including her intimate garments. He likewise undressed himself. He then kissed her on the different
parts of her body and forced her down. All the while, she was so frightened and helpless. All she could
do was to plead: Wag na po Kuya Mar. Engulfed by his bestiality, appellant ignored her please; he took
liberties on her body as he rammed his penis into her vagina. Again, he satisfied his lust.

Appellant eventually told [AAA] to dress up. He brought her to the terminal of the jeep and allowed her
to go home.

When [AAA] reached her residence, she immediately took a bath. As she could not contain her grief and
misery, she told her aunt [CCC] and her grandmother [DDD] that she was raped. After her relatives
learned of the incident, they brought her to the Barangay Tanod and, later to Camp Crame for medical
examination. They also proceeded to the Police Station located at the Municipal Hall of Taguig to give
her statement. (Words in bracket ours)
On the other hand, the defense relied on the testimony of Margarita Salangsang, a lessee of accused-
appellants mother at Signal Village in Taguig. She testified that at around 9:30 in the evening on
November 11, 1999, accused-appellant was in her house for her birthday celebration. Accused-appellant
did not leave the house at any time from the moment he arrived at 9:30 in the evening until he finally
left around midnight. She knew that accused-appellant went home straight after the party because she
even saw him at his house when she returned the pans she borrowed from accused-appellants mother.
Margarita declared that her house was located just at the back of accused-appellants house.[7]

In a decision[8] dated September 29, 2004, the trial court rendered its decision convicting accused-
appellant of the crime of rape, the dispositive portion of which reads:

WHEREFORE, the Court finds the accused Mario Castro, guilty beyond reasonable doubt of the crime of
Rape committed under paragraph 1(a) of Article 266-A of the Revised Penal Code (as amended by R.A.
8353), and hereby sentences him to suffer the penalty of reclusion perpetua.

Accused Mario Castro is likewise ordered to indemnify private complainant, [AAA], the amount of fifty
thousand pesos (P50,000.00) as civil indemnity and the amount of fifty thousand pesos (P50,000.00) by
way of moral damages with cost de oficio.

SO ORDERED.

Pursuant to People v. Mateo,[9] accused-appellant appealed his conviction to the CA via a notice of
appeal on September 30, 2004,[10] whereat it was docketed as CA-G.R. CR-HC No. 00126.

On February 15, 2006, the CA upheld the conviction of accused-appellant and affirmed in toto the RTC
decision.[11]

From the CA, the case was then elevated to this Court upon filing by accused-appellant of a notice of
appeal on March 10, 2006.[12] In its Resolution[13] of August 9, 2006, the Court resolved to require the
parties to submit their respective supplemental briefs, if they so desire. Both parties, however,
manifested that they were dispensing with the filing of a supplemental brief as their arguments have
already been substantially discussed in their respective briefs filed before the appellate court.[14]
In this appeal, accused-appellant assigns the following errors:

THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE HIGHLY INCREDIBLE
TESTIMONY OF THE PRIVATE COMPLAINANT.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE INSTEAD OF THE
CRIME OF ACTS OF LASCIVIOUSNESS.[15]

Insisting that the prosecution failed to prove his guilt beyond reasonable doubt for the crime of rape,
accused-appellant assails the credibility of the complainant branding her testimony as highly improbable
and contrary to common human experience. He contends that complainant did not particularly describe
the details of the alleged rape as to whether she was forced to lie down or whether they were standing
when he inserted a part of his organ into her vagina. Accused-appellant also asserts that complainant
failed to categorically state that accused-appellant succeeded in inserting his penis into her vagina, thus
undermining her allegation of consummated rape.

Accused-appellants contentions relate to the credibility of the testimony of complainant. We have time
and again said that the findings of the trial court pertaining to the credibility of witnesses are entitled to
great respect since it has the opportunity to examine their demeanor on the witness stand.[16] Unless
shown that the trial court overlooked or misunderstood some facts or circumstances of weight and
substance that could affect the result of the case, its findings on questions of facts will not be disturbed
on appeal.[17] We have reviewed the record of the instant case and found nothing which would warrant
a reversal of the trial courts findings.

Accused-appellant maintains that complainant failed to mention any pumping motion and whether she
was standing or lying down when she was allegedly raped. These matters, however, have no bearing on
the principal question of whether accused-appellant had carnal knowledge of the victim. Besides,
contrary to appellant's contention, complainant testified in no uncertain terms during cross-examination
that she did not willingly lie down but was forced to do so by accused-appellant:

ATTY. JANDUSAY:

Q. So are you saying Miss Witness, that you willingly laid down with the accused?
A. No, Maam.

Q. What did he do, did he force you down?

A Yes, Maam.[18]

Further, the complainants narration of how accused-appellant perpetrated the sexual assault upon her
was consistent, spontaneous and straightforward, thus:

PROS. CRISOLOGO:

Q While you were at the side of the building, what else happened, if any?

A He asked me to undress, Sir.

Q Did you undress, Madam witness?

A No, Sir.

Q. What else happened when you refused to undress?

A. He undressed me, Sir.

Q. Did you resist his act of undressing you, Madam Witness?

A. Yes, Sir.

Q. Did he succeed in undressing you?

A. Yes, Sir.
Q. When you said he undressed you, do you mean that he was able to undress everything including your
underwear?

A. Yes, Sir.

Q. Would this mean that you were totally naked after he was able to undress you?

A. My panty was pulled down to the knee, Sir.

Q. And after he succeeded in undressing you, what else happened, if any?

A. He kissed me at different parts of my body, Sir.

Q. After kissing the different parts of your body, what else happened, if any?

A. He was forcing his organ to insert into my organ, Sir.

Q. Did he succeed, Madam Witness?

A. Not all, Sir.

Q. When you said not all somehow a part of his organ was inserted, would that be correct, Madam
Witness?

A. Yes, Sir.[19]

Courts usually give greater weight to the testimony of a girl who is a victim of sexual assault, especially a
minor, as in this case, because no woman would be willing to undergo a public trial and put up with the
shame, humiliation and dishonor of exposing her own degradation were it not to condemn an injustice
and have the offender apprehended and punished.[20]

Nor is there any question that accused-appellant in this case committed rape by means of threat and
intimidation. Being 30 years old and the brother-in-law of complainant, accused-appellant exercised not
only physical superiority, but also moral ascendancy over his 14-year old victim such that his threat to
inflict physical harm on her effectively cowed her into submitting to his lustful designs. In fact,
complainant was aware that accused-appellant had killed someone before[21] which all the more
engendered fear in her fear that if she did not yield to accused-appellant's demands, he would carry out
his threat to kill her.

Accused-appellant argues that he cannot be held liable for consummated rape following the ruling in
People v. Campuhan.[22] For this purpose, he cites the testimony of complainant that not all of accused-
appellant's organ was inserted into her vagina.

The argument is misplaced. In Campuhan, it was held that the crime was merely attempted rape
because all that the victim said in that case was that accused's penis touched her organ but did not
penetrate it.[23] Hence, this Court concluded:

[The] testimony alone should dissipate the mist of confusion that enshrouds the question of whether
rape in this case was consummated. It has foreclosed the possibility of Primo's penis penetrating her
vagina, however slight. Crysthel made a categorical statement denying penetration. xxx. Nor can it be
deduced that in trying to penetrate the victim's organ the penis of the accused touched the middle
portion of her vagina and entered the labia of her pudendum as the prosecution failed to establish
sufficiently that Primo made efforts to penetrate Crysthel. Corazon did not say, nay, not even hint that
Primo's penis was erect or that he responded with an erection. On the contrary, Corazon even narrated
that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an erection
to be able to penetrate his victim.[24]

But, in the case at bar, the above-quoted testimony of the complainant herself established the
consummation of the crime of rape.

Clearly, complainant's statement that not all of accused-appellant's organ was inserted simply means
that there was no full penetration. There can be no doubt, however, that there was at least a partial
entry, so as to make the crime consummated rape. As we have said in unnumbered cases, full or deep
penetration is not necessary to consummate sexual intercourse; it is enough that there is the slightest
penetration of the male organ into the female sex organ.[25] The mere touching by the male organ of
the labia of the pudendum of the womans private part is sufficient to consummate rape.[26] It was
therefore consummated rape which accused-appellant committed.

Accused-appellant likewise claims that the trial court erred in convicting him of the crime of
consummated rape despite the prosecutions failure to present the testimony of the examining
physician. We find accused-appellants contention on this point untenable. The commission of rape
against complainant cannot be negated simply because of the absence of the testimony of the doctor
who examined the victim. It is well entrenched in our jurisprudence that a medical examination of the
victim is not indispensable in a prosecution for rape inasmuch as the victims testimony alone, if credible,
is sufficient to convict the accused of the crime.[27] In fact, a doctors certificate is merely corroborative
in character and not an indispensable requirement in proving the commission of rape.[28]

We are also constrained to agree with the appellate courts observation that there was nothing
improbable and preposterous in complainants testimony. Said the CA:

This Court finds nothing incredible or fantastic in [AAAs] narration of the events surrounding the rape
committed against her by accused-appellant Castro. The details of her story fail to show any telltale
indications of falsehood, inconsistency or improbability, and were all perfectly consistent with the rape
of a young innocent girl. Considering her relatively tender age and minority, it is well nigh inconceivable
for her to have concocted such a serious accusation and brazenly impute such a crime to her own
brother-in-law, if it were not true. The evidence on record is bereft of any showing, which would
somehow indicate that the private complainant was induced by any ill-motive in filing the case against
accused-appellant Castro.[29]

Accused-appellants defense of alibi is unavailing. Margarita Salangsang, the lone defense witness,
claimed that accused-appellant was in her house from 9:30-11:45 in the evening of November 11, 1999.
However, this does not negate the possibility that he might be present at the TEMIC factory where the
crime was committed, since Margaritas house and the TEMIC factory are both located within Taguig. In
fact, Margarita herself declared that the distance between the two places can easily be negotiated by
foot within ten (10) minutes and by tricycle within five (5) minutes.

For alibi to prosper, the accused must establish by clear and convincing evidence (a) his presence at
another place at the time of the perpetration of the offense and (b) the physical impossibility of his
presence at the scene of the crime at the time.[30] Where there is even the least chance for the accused
to be present at the crime scene, the defense of alibi will not hold water.[31] Clearly in this case, the
physical impossibility of accused-appellants presence at the scene of the crime on the date and time of
its commission, has not been sufficiently established.

We, thus, sustain the conviction of accused-appellant for the crime of consummated simple rape under
Article 266-A, paragraph 1(a) of the Revised Penal Code. The penalty of reclusion perpetua was likewise
correctly imposed as the special qualifying circumstance of relationship had not been specifically alleged
in the information. Under Article 266-B of the Revised Penal Code, as amended by R.A. No. 8353,[32]
qualified rape is committed when, among others, the victim is under eighteen (18) years of age and the
offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the
third civil degree, or the common-law spouse of the parent of the victim. It is well-settled that these
attendant circumstances of minority of the victim and her relationship to the offender are special
qualifying circumstances which must be specifically alleged in the information and proved with certainty
in order to warrant conviction for the crime of qualified rape and the imposition of the death
penalty.[33]

In the present case, the information charging accused-appellant of the crime of rape alleged that the
accused, by means of force and intimidation, did then and there willfully, unlawfully and feloniously had
sexual intercourse with his sister-in-law, [AAA], a minor, fourteen (14) years of age, against her will.[34]
The prosecution was able to prove that at the time she was raped, complainant was only 14 years old,
having been born on July 8, 1985, as evidenced by her birth certificate.[35] The prosecution likewise
proved accused-appellant is the brother-in-law of complainant, being the husband of complainants elder
sister. Accused-appellant, therefore, is complainants relative by affinity within the third civil degree.

However, we have previously held that if the offender is merely a relation not a parent, ascendant, step-
parent, or guardian or common-law spouse of the mother of the victim it must be alleged in the
information that he is a relative by consanguinity or affinity (as the case may be) within the third civil
degree.[36] Thus, in the instant case, the allegation that complainant is the sister-in-law of accused-
appellant is not specific enough to satisfy the special qualifying circumstance of relationship. It is
necessary to specifically allege that such relationship was by affinity within the third civil degree.[37]
Consequently, due to the defect in the information charging accused-appellant of rape, he can only be
held liable for simple rape and meted the penalty of reclusion perpetua.

Consistent with prevailing jurisprudence on simple rape, the amounts of P50,000.00 as civil indemnity
and P50,000.00 as moral damages were correctly awarded by the trial court.[38]

WHEREFORE, the decision dated February 15, 2006 of the CA in CA-G.R. CR-HC No. 00126 is hereby
AFFIRMED. Accused-appellant Mario Castro is found GUILTY beyond reasonable doubt of the crime of
Simple Rape and sentenced to suffer the penalty of reclusion perpetua. He is also ordered to pay
complainant, civil indemnity in the amount of P50,000.00 and moral damages in the amount of
P50,000.00.

SO ORDERED.

THIRD DIVISION
BANK OF THE PHILIPPINE ISLANDS,

Petitioner,

- versus -

SPOUSES REYNALDO AND VICTORIA ROYECA,

Respondents.

G.R. No. 176664

Present:

QUISUMBING, J.,*

YNARES-SANTIAGO,

Chairperson,

AUSTRIA-MARTINEZ,

NACHURA, and

REYES, JJ.
Promulgated:

July 21, 2008

x-----------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

Bank of the Philippine Islands (BPI) seeks a review of the Court of Appeals (CA) Decision[1] dated July 12,
2006, and Resolution[2] dated February 13, 2007, which dismissed its complaint for replevin and
damages and granted the respondents counterclaim for damages.

The case stems from the following undisputed facts:

On August 23, 1993, spouses Reynaldo and Victoria Royeca (respondents) executed and delivered to
Toyota Shaw, Inc. a Promissory Note[3] for P577,008.00 payable in 48 equal monthly installments of
P12,021.00, with a maturity date of August 18, 1997. The Promissory Note provides for a penalty of 3%
for every month or fraction of a month that an installment remains unpaid.

To secure the payment of said Promissory Note, respondents executed a Chattel Mortgage[4] in favor of
Toyota over a certain motor vehicle, more particularly described as follows:

Make and Type 1993 Toyota Corolla 1.3 XL

Motor No. 2E-2649879

Serial No. EE100-9512571

Color D.B. Gray Met.

Toyota, with notice to respondents, executed a Deed of Assignment[5] transferring all its rights, title,
and interest in the Chattel Mortgage to Far East Bank and Trust Company (FEBTC).

Claiming that the respondents failed to pay four (4) monthly amortizations covering the period from
May 18, 1997 to August 18, 1997, FEBTC sent a formal demand to respondents on March 14, 2000
asking for the payment thereof, plus penalty.[6] The respondents refused to pay on the ground that they
had already paid their obligation to FEBTC.

On April 19, 2000, FEBTC filed a Complaint for Replevin and Damages against the respondents with the
Metropolitan Trial Court (MeTC) of Manila praying for the delivery of the vehicle, with an alternative
prayer for the payment of P48,084.00 plus interest and/or late payment charges at the rate of 36% per
annum from May 18, 1997 until fully paid. The complaint likewise prayed for the payment of P24,462.73
as attorneys fees, liquidated damages, bonding fees and other expenses incurred in the seizure of the
vehicle. The complaint was later amended to substitute BPI as plaintiff when it merged with and
absorbed FEBTC.[7]

In their Answer, respondents alleged that on May 20, 1997, they delivered to the Auto Financing
Department of FEBTC eight (8) postdated checks in different amounts totaling P97,281.78. The
Acknowledgment Receipt,[8] which they attached to the Answer, showed that FEBTC received the
following checks:

DATE

26 May 97

6 June 97

30 May 97

15 June 97

30 June 97

18 June 97

18 July 97

18 August 97
BANK

Landbank

Head Office

FEBTC

Shaw Blvd.

"

Landbank

Head Office

CHECK NO.

#610945

#610946

#17A00-11550P

#17A00-11549P

#17A00-11551P

#610947

#610948

#610949

AMOUNT

P13,824.15

12,381.63

12,021.00

12,021.00

12,021.00

11,671.00
11,671.00

11,671.00

The respondents further averred that they did not receive any notice from the drawee banks or from
FEBTC that these checks were dishonored. They explained that, considering this and the fact that the
checks were issued three years ago, they believed in good faith that their obligation had already been
fully paid. They alleged that the complaint is frivolous and plainly vexatious. They then prayed that they
be awarded moral and exemplary damages, attorneys fees and costs of suit.[9]

During trial, Mr. Vicente Magpusao testified that he had been connected with FEBTC since 1994 and had
assumed the position of Account Analyst since its merger with BPI. He admitted that they had, in fact,
received the eight checks from the respondents. However, two of these checks (Landbank Check No.
0610947 and FEBTC Check No. 17A00-11551P) amounting to P23,692.00 were dishonored. He recalled
that the remaining two checks were not deposited anymore due to the previous dishonor of the two
checks. He said that after deducting these payments, the total outstanding balance of the obligation was
P48,084.00, which represented the last four monthly installments.

On February 23, 2005, the MeTC dismissed the case and granted the respondents counterclaim for
damages, thus:

WHEREFORE, judgment is hereby rendered dismissing the complaint for lack of cause of action, and on
the counterclaim, plaintiff is ordered to indemnify the defendants as follows:

a) The sum of PhP30,000.00 as and by way of moral damages;

b) The sum of PhP30,000.00 as and by way of exemplary damages;

c) The sum of PhP20,000.00 as and by way of attorneys fees; and

d) To pay the costs of the suit.

SO ORDERED.[10]
On appeal, the Regional Trial Court (RTC) set aside the MeTC Decision and ordered the respondents to
pay the amount claimed by the petitioner. The dispositive portion of its Decision[11] dated August 11,
2005 reads:

WHEREFORE, premises considered, the Decision of the Metropolitan Trial Court, Branch 9 dated
February 23, 2005 is REVERSED and a new one entered directing the defendants-appellees to pay the
plaintiff-appellant, jointly and severally,

1. The sum of P48,084.00 plus interest and/or late payment charges thereon at the rate of 36% per
annum from May 18, 1997 until fully paid;

2. The sum of P10,000.00 as attorneys fees; and

3. The costs of suit.

SO ORDERED.[12]

The RTC denied the respondents motion for reconsideration.[13]

The respondents elevated the case to the Court of Appeals (CA) through a petition for review. They
succeeded in obtaining a favorable judgment when the CA set aside the RTCs Decision and reinstated
the MeTCs Decision on July 12, 2006.[14] On February 13, 2007, the CA denied the petitioners motion
for reconsideration.[15]

The issues submitted for resolution in this petition for review are as follows:

I. WHETHER OR NOT RESPONDENTS WERE ABLE TO PROVE FULL PAYMENT OF THEIR OBLIGATION AS
ONE OF THEIR AFFIRMATIVE DEFENSES.
II. WHETHER OR NOT TENDER OF CHECKS CONSTITUTES PAYMENT.

III. WHETHER OR NOT RESPONDENTS ARE ENTITLED TO MORAL AND EXEMPLARY DAMAGES AND
ATTORNEYS FEES.[16]

The petitioner insists that the respondents did not sufficiently prove the alleged payment. It avers that,
under the law and existing jurisprudence, delivery of checks does not constitute payment. It points out
that this principle stands despite the fact that there was no notice of dishonor of the two checks and the
demand to pay was made three years after default.

On the other hand, the respondents postulate that they have established payment of the amount being
claimed by the petitioner and, unless the petitioner proves that the checks have been dishonored, they
should not be made liable to pay the obligation again.[17]

The petition is partly meritorious.

In civil cases, the party having the burden of proof must establish his case by a preponderance of
evidence, or evidence which is more convincing to the court as worthy of belief than that which is
offered in opposition thereto.[18] Thus, the party, whether plaintiff or defendant, who asserts the
affirmative of an issue has the onus to prove his assertion in order to obtain a favorable judgment. For
the plaintiff, the burden to prove its positive assertions never parts. For the defendant, an affirmative
defense is one which is not a denial of an essential ingredient in the plaintiffs cause of action, but one
which, if established, will be a good defense i.e. an avoidance of the claim.[19]

In Jimenez v. NLRC,[20] cited by both the RTC and the CA, the Court elucidated on who, between the
plaintiff and defendant, has the burden to prove the affirmative defense of payment:

As a general rule, one who pleads payment has the burden of proving it. Even where the plaintiff must
allege non-payment, the general rule is that the burden rests on the defendant to prove payment,
rather than on the plaintiff to prove non-payment. The debtor has the burden of showing with legal
certainty that the obligation has been discharged by payment.

When the existence of a debt is fully established by the evidence contained in the record, the burden of
proving that it has been extinguished by payment devolves upon the debtor who offers such a defense
to the claim of the creditor. Where the debtor introduces some evidence of payment, the burden of
going forward with the evidence - as distinct from the general burden of proof - shifts to the creditor,
who is then under a duty of producing some evidence to show non-payment.[21]

In applying these principles, the CA and the RTC, however, arrived at different conclusions. While both
agreed that the respondents had the burden of proof to establish payment, the two courts did not agree
on whether the respondents were able to present sufficient evidence of payment enough to shift the
burden of evidence to the petitioner. The RTC found that the respondents failed to discharge this
burden because they did not introduce evidence of payment, considering that mere delivery of checks
does not constitute payment.[22] On the other hand, the CA concluded that the respondents introduced
sufficient evidence of payment, as opposed to the petitioner, which failed to produce evidence that the
checks were in fact dishonored. It noted that the petitioner could have easily presented the dishonored
checks or the advice of dishonor and required respondents to replace the dishonored checks but none
was presented. Further, the CA remarked that it is absurd for a bank, such as petitioner, to demand
payment of a failed amortization only after three years from the due date.

The divergence in this conflict of opinions can be narrowed down to the issue of whether the
Acknowledgment Receipt was sufficient proof of payment. As correctly observed by the RTC, this is only
proof that respondents delivered eight checks in payment of the amount due. Apparently, this will not
suffice to establish actual payment.

Settled is the rule that payment must be made in legal tender. A check is not legal tender and, therefore,
cannot constitute a valid tender of payment.[23] Since a negotiable instrument is only a substitute for
money and not money, the delivery of such an instrument does not, by itself, operate as payment. Mere
delivery of checks does not discharge the obligation under a judgment. The obligation is not
extinguished and remains suspended until the payment by commercial document is actually
realized.[24]

To establish their defense, the respondents therefore had to present proof, not only that they delivered
the checks to the petitioner, but also that the checks were encashed. The respondents failed to do so.
Had the checks been actually encashed, the respondents could have easily produced the cancelled
checks as evidence to prove the same. Instead, they merely averred that they believed in good faith that
the checks were encashed because they were not notified of the dishonor of the checks and three years
had already lapsed since they issued the checks.

Because of this failure of the respondents to present sufficient proof of payment, it was no longer
necessary for the petitioner to prove non-payment, particularly proof that the checks were dishonored.
The burden of evidence is shifted only if the party upon whom it is lodged was able to adduce
preponderant evidence to prove its claim.[25]

To stress, the obligation to prove that the checks were not dishonored, but were in fact encashed, fell
upon the respondents who would benefit from such fact. That payment was effected through the eight
checks was the respondents affirmative allegation that they had to establish with legal certainty. If the
petitioner were seeking to enforce liability upon the check, the burden to prove that a notice of
dishonor was properly given would have devolved upon it.[26] The fact is that the petitioners cause of
action was based on the original obligation as evidenced by the Promissory Note and the Chattel
Mortgage, and not on the checks issued in payment thereof.

Further, it should be noted that the petitioner, as payee, did not have a legal obligation to inform the
respondents of the dishonor of the checks. A notice of dishonor is required only to preserve the right of
the payee to recover on the check. It preserves the liability of the drawer and the indorsers on the
check. Otherwise, if the payee fails to give notice to them, they are discharged from their liability
thereon, and the payee is precluded from enforcing payment on the check. The respondents, therefore,
cannot fault the petitioner for not notifying them of the non-payment of the checks because whatever
rights were transgressed by such omission belonged only to the petitioner.

In all, we find that the evidence at hand preponderates in favor of the petitioner. The petitioners
possession of the documents pertaining to the obligation strongly buttresses its claim that the obligation
has not been extinguished. The creditors possession of the evidence of debt is proof that the debt has
not been discharged by payment.[27] A promissory note in the hands of the creditor is a proof of
indebtedness rather than proof of payment.[28] In an action for replevin by a mortgagee, it is prima
facie evidence that the promissory note has not been paid.[29] Likewise, an uncanceled mortgage in the
possession of the mortgagee gives rise to the presumption that the mortgage debt is unpaid.[30]

Finally, the respondents posit that the petitioners claim is barred by laches since it has been three years
since the checks were issued. We do not agree. Laches is a recourse in equity. Equity, however, is
applied only in the absence, never in contravention, of statutory law. Thus, laches cannot, as a rule,
abate a collection suit filed within the prescriptive period mandated by the New Civil Code.[31] The
petitioners action was filed within the ten-year prescriptive period provided under Article 1144 of the
New Civil Code. Hence, there is no room for the application of laches.

Nonetheless, the Court cannot ignore what the respondents have consistently raised that they were not
notified of the non-payment of the checks. Reasonable banking practice and prudence dictates that,
when a check given to a creditor bank in payment of an obligation is dishonored, the bank should
immediately return it to the debtor and demand its replacement or payment lest it causes any prejudice
to the drawer. In light of this and the fact that the obligation has been partially paid, we deem it just and
equitable to reduce the 3% per month penalty charge as stipulated in the Promissory Note to 12% per
annum.[32] Although a court is not at liberty to ignore the freedom of the parties to agree on such
terms and conditions as they see fit, as long as they contravene no law, morals, good customs, public
order or public policy, a stipulated penalty, nevertheless, may be equitably reduced by the courts if it is
iniquitous or unconscionable, or if the principal obligation has been partly or irregularly complied
with.[33]

WHEREFORE, premises considered, the petition is PARTIALLY GRANTED. The Court of Appeals Decision
dated July 12, 2006, and Resolution dated February 13, 2007, are REVERSED and SET ASIDE. The Decision
of the Regional Trial Court, dated August 11, 2005, is REINSTATED with the MODIFICATION that
respondents are ordered to deliver the possession of the subject vehicle, or in the alternative, pay the
petitioner P48,084.00 plus late penalty charges/interest thereon at the rate of 12% per annum from
May 18, 1997 until fully paid.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 82248 January 30, 1992

ERNESTO MARTIN, petitioner,

vs.
HON. COURT OF APPEALS and MANILA ELECTRIC COMPANY, respondents.

Roberto M. Cabangis for petitioner.

Benjamin R. Reonal for private respondent.

CRUZ, J.:

This case turns on the proper application of the familiar rule that he who alleges must prove his
allegation.

Ernesto Martin was the owner of a private car bearing license plate No. NPA-930. At around 2 o'clock in
the morning of May 11, 1982, while being driven by Nestor Martin, it crashed into a Meralco electric
post on Valley Golf Road, in Antipolo, Rizal. The car was wrecked and the pole severely damaged.
Meralco subsequently demanded reparation from Ernesto Martin, but the demand was rejected. It
thereupon sued him for damages in the Regional Trial Court of Pasig, alleging inter alia that he was liable
to it in the sum of P17,352.00 plus attorney's fees and litigation costs as the employer of Nestor Martin.
The petitioner's main defense was that Nestor Martin was not his employee.

After the plaintiff had rested, the defendant moved to dismiss the complaint on the ground that no
evidence had been adduced to show that Nestor Martin was his employee. The motion was denied. The
case was considered submitted for decision with the express waiver by the defendant of his right to pxza
eresent his own evidence. The defendant thus did not rebut the plaintiff's allegation that he was
Nestor Martin's employer.

In the decision dated August 27, 1985, Judge Eutropio Migriño held in favor of the plaintiff, awarding
him the amount claimed, with 12% interest, and P4,000.00 attorney's fees, plus costs.1 The decision was
seasonably elevated to the Court of Appeals, which affirmed it in toto on February 22, 1988, 2
prompting this petition for review.

The petition has merit.

It is important to stress that the complaint for damages was filed by the private respondent against only
Ernesto Martin as alleged employer of Nestor Martin, the driver of the car at the time of the accident.
Nestor Martin was not impleaded. The action was based on tort under Article 2180 of the Civil Code,
providing in part that:

Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry.

The above rule is applicable only if there is an employer-employee relationship although it is not
necessary that the employer be engaged in any business or industry. It differs in this sense from Article
103 of the Revised Penal Code, which requires that the employer be engaged in an industry to be
subsidiarily liable for the felony committed by his employee in the course of his employment.

Whether or not engaged in any business or industry, the employer under Article 2180 is liable for the
torts committed by his employees within the scope of their assigned task. But it is necessary first to
establish the employment relationship. Once this is done, the plaintiff must show, to hold the employer
liable, that the employee was acting within the scope of his assigned task when the tort complained of
was committed. It is only then that the defendant, as employer, may find it necessary to interpose the
defense of due diligence in the selection and supervision of the employee as allowed in that article. 3
In the case at bar, no evidence whatsoever was adduced by the plaintiff to show that the defendant was
the employer of Nestor Martin at the time of the accident. The trial court merely presumed the
existence of the employer-employee relationship and held that the petitioner had not refuted that
presumption. It noted that although the defendant alleged that he was not Nestor Martin's employer,
"he did not present any proof to substantiate his allegation."

As the trial court put it:

There is no need to stretch one's imagination to realize that a car owner entrusts his vehicle only to his
driver or to anyone whom he allows to drive it. Since neither plaintiff nor defendant has presented any
evidence on the status of Nestor Martin, the Court presumes that he was at the time of the incident, an
employee of the defendant. It is elementary that he who makes an allegation is required to prove the
same. Defendant alleges that Nestor Martin was not his employee but he did not present any proof to
substantiate his allegation. While it is true plaintiff did not present evidence on its allegation that Nestor
Martin was defendant's employee, the Court believes and so holds, that there was no need for such
evidence. As above adverted to, the Court can proceed on the presumption that one who drives the
motor vehicle is an employee of the owner thereof.

A presumption is defined as an inference as to the existence of a fact not actually known, arising from its
usual connection with another which is known, 4 or a conjecture based on past experience as to what
course human affairs ordinarily take. 5 It is either a presumption juris, or of law, or a presumption
hominis, or of fact. 6

There is no law directing the deduction made by the courts below from the particular facts presented to
them by the parties. Such deduction is not among the conclusive presumptions under Section 2 or the
disputable presumptions under Section 3 of Rule 131 of the Rules of Court. In other words, it is not a
presumption juris.

Neither is it a presumption hominis, which is a reasonable deduction from the facts proved without an
express direction of law to that effect. 7 The facts proved, or not denied, viz., the ownership of the car
and the circumstances of the accident, are not enough bases for the inference that the petitioner is the
employer of Nestor Martin.

In the modern urban society, most male persons know how to drive and do not have to employ others
to drive for them unless this is needed for business reasons. Many cannot afford this luxury, and even if
they could, may consider it an unnecessary expense and inconvenience. In the present case, the more
plausible assumption is that Nestor Martin is a close relative of Ernesto Martin and on the date in
question borrowed the car for some private purpose. Nestor would probably not have been
accommodated if he were a mere employee for employees do not usually enjoy the use of their
employer's car at two o'clock in the morning.

As the employment relationship between Ernesto Martin and Nestor Martin could not be presumed, it
was necessary for the plaintiff to establish it by evidence. Meralco had the burden of proof, or the duty
"to present evidence on the fact in issue necessary to establish his claim" as required by Rule 131,
Section 1 of the Revised Rules of Court. Failure to do this was fatal to its action.

It was enough for the defendant to deny the alleged employment relationship, without more, for he was
not under obligation to prove this negative averment. Ei incumbit probatio qui dicit, non qui negat. 8
This Court has consistently applied the ancient rule that "if the plaintiff, upon whom rests the burden of
proving his cause of action, fails to show in a satisfactory manner the facts upon which he bases his
claim, the defendant is under no obligation to prove his exception or defense." 9

The case of Amor v. Soberano, 10 a Court of Appeals decision not elevated to this Court, was misapplied
by the respondent court in support of the petitioner's position. The vehicle involved in that case was a
six-by-six truck, which reasonably raised the factual presumption that it was engaged in business and
that its driver was employed by the owner of the vehicle. The case at bar involves a private vehicle as its
license plate indicates. No evidence was ever offered that it was being used for business purposes or
that, in any case, its driver at the time of the accident was an employee of the petitioner.

It is worth mentioning in this connection that in Filamer Christian Institute v. Court of Appeals, 11 the
owner of the jeep involved in the accident was absolved from liability when it was shown that the driver
of the vehicle was not employed as such by the latter but was a "working scholar" as that term is
defined by the Omnibus Rules Implementing the Labor Code. 12 He was assigned to janitorial duties.
Evidence was introduced to establish the employment relationship but it failed nonetheless to hold the
owner responsible. Significantly, no similar evidence was even presented in the case at bar, the private
respondent merely relying on its mere allegation that Nestor Martin was the petitioner's employee.
Allegation is not synonymous with proof.

The above observations make it unnecessary to examine the question of the driver's alleged negligence
or the lack of diligence on the part of the petitioner in the selection and supervision of his employee.
These questions have not arisen because the employment relationship contemplated in Article 1860 of
the Civil Code has not been established.

WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED, and Civil Case
No. 48045 in the Regional Trial Court of Pasig, Branch 151, is DISMISSED, with costs against the
respondent. It is so ordered.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 112573 February 9, 1995

NORTHWEST ORIENT AIRLINES, INC. petitioner,

vs.
COURT OF APPEALS and C.F. SHARP & COMPANY INC., respondents.

PADILLA, JR., J.:

This petition for review on certiorari seeks to set aside the decision of the Court of Appeals affirming the
dismissal of the petitioner's complaint to enforce the judgment of a Japanese court. The principal issue
here is whether a Japanese court can acquire jurisdiction over a Philippine corporation doing business in
Japan by serving summons through diplomatic channels on the Philippine corporation at its principal
office in Manila after prior attempts to serve summons in Japan had failed.

Petitioner Northwest Orient Airlines, Inc. (hereinafter NORTHWEST), a corporation organized under the
laws of the State of Minnesota, U.S.A., sought to enforce in Civil Case No. 83-17637 of the Regional Trial
Court (RTC), Branch 54, Manila, a judgment rendered in its favor by a Japanese court against private
respondent C.F. Sharp & Company, Inc., (hereinafter SHARP), a corporation incorporated under
Philippine laws.

As found by the Court of Appeals in the challenged decision of 10 November 1993, 1 the following are
the factual and procedural antecedents of this controversy:

On May 9, 1974, plaintiff Northwest Airlines and defendant C.F. Sharp & Company, through its Japan
branch, entered into an International Passenger Sales Agency Agreement, whereby the former
authorized the latter to sell its air transportation tickets. Unable to remit the proceeds of the ticket sales
made by defendant on behalf of the plaintiff under the said agreement, plaintiff on March 25, 1980 sued
defendant in Tokyo, Japan, for collection of the unremitted proceeds of the ticket sales, with claim for
damages.

On April 11, 1980, a writ of summons was issued by the 36th Civil Department, Tokyo District Court of
Japan against defendant at its office at the Taiheiyo Building, 3rd floor, 132, Yamashita-cho, Naka-ku,
Yokohoma, Kanagawa Prefecture. The attempt to serve the summons was unsuccessful because the
bailiff was advised by a person in the office that Mr. Dinozo, the person believed to be authorized to
receive court processes was in Manila and would be back on April 24, 1980.

On April 24, 1980, bailiff returned to the defendant's office to serve the summons. Mr. Dinozo refused
to accept the same claiming that he was no longer an employee of the defendant.

After the two attempts of service were unsuccessful, the judge of the Tokyo District Court decided to
have the complaint and the writs of summons served at the head office of the defendant in Manila. On
July 11, 1980, the Director of the Tokyo District Court requested the Supreme Court of Japan to serve
the summons through diplomatic channels upon the defendant's head office in Manila.

On August 28, 1980, defendant received from Deputy Sheriff Rolando Balingit the writ of summons (p.
276, Records). Despite receipt of the same, defendant failed to appear at the scheduled hearing. Thus,
the Tokyo Court proceeded to hear the plaintiff's complaint and on [January 29, 1981], rendered
judgment ordering the defendant to pay the plaintiff the sum of 83,158,195 Yen and damages for delay
at the rate of 6% per annum from August 28, 1980 up to and until payment is completed (pp. 12-14,
Records).

On March 24, 1981, defendant received from Deputy Sheriff Balingit copy of the judgment. Defendant
not having appealed the judgment, the same became final and executory.

Plaintiff was unable to execute the decision in Japan, hence, on May 20, 1983, a suit for enforcement of
the judgment was filed by plaintiff before the Regional Trial Court of Manila Branch 54.2
On July 16, 1983, defendant filed its answer averring that the judgment of the Japanese Court sought to
be enforced is null and void and unenforceable in this jurisdiction having been rendered without due
and proper notice to the defendant and/or with collusion or fraud and/or upon a clear mistake of law
and fact (pp. 41-45, Rec.).

Unable to settle the case amicably, the case was tried on the merits. After the plaintiff rested its case,
defendant on April 21, 1989, filed a Motion for Judgment on a Demurrer to Evidence based on two
grounds:
(1) the foreign judgment sought to be enforced is null and void for want of jurisdiction and (2) the said
judgment is contrary to Philippine law and public policy and rendered without due process of law.
Plaintiff filed its opposition after which the court a quo rendered the now assailed decision dated June
21, 1989 granting the demurrer motion and dismissing the complaint (Decision, pp. 376-378, Records).
In granting the demurrer motion, the trial court held that:

The foreign judgment in the Japanese Court sought in this action is null and void for want of jurisdiction
over the person of the defendant considering that this is an action in personam; the Japanese Court did
not acquire jurisdiction over the person of the defendant because jurisprudence requires that the
defendant be served with summons in Japan in order for the Japanese Court to acquire jurisdiction over
it, the process of the Court in Japan sent to the Philippines which is outside Japanese jurisdiction cannot
confer jurisdiction over the defendant in the case before the Japanese Court of the case at bar. Boudard
versus Tait 67 Phil. 170. The plaintiff contends that the Japanese Court acquired jurisdiction because the
defendant is a resident of Japan, having four (4) branches doing business therein and in fact had a
permit from the Japanese government to conduct business in Japan (citing the exhibits presented by the
plaintiff); if this is so then service of summons should have been made upon the defendant in Japan in
any of these alleged four branches; as admitted by the plaintiff the service of the summons issued by
the Japanese Court was made in the Philippines thru a Philippine Sheriff. This Court agrees that if the
defendant in a foreign court is a resident in the court of that foreign court such court could acquire
jurisdiction over the person of the defendant but it must be served upon the defendant in the territorial
jurisdiction of the foreign court. Such is not the case here because the defendant was served with
summons in the Philippines and not in Japan.

Unable to accept the said decision, plaintiff on July 11, 1989 moved for reconsideration of the decision,
filing at the same time a conditional Notice of Appeal, asking the court to treat the said notice of appeal
"as in effect after and upon issuance of the court's denial of the motion for reconsideration."

Defendant opposed the motion for reconsideration to which a Reply dated August 28, 1989 was filed by
the plaintiff.

On October 16, 1989, the lower court disregarded the Motion for Reconsideration and gave due course
to the plaintiff's Notice of Appeal. 3

In its decision, the Court of Appeals sustained the trial court. It agreed with the latter in its reliance upon
Boudard vs. Tait 4 wherein it was held that "the process of the court has no extraterritorial effect and no
jurisdiction is acquired over the person of the defendant by serving him beyond the boundaries of the
state." To support its position, the Court of Appeals further stated:

In an action strictly in personam, such as the instant case, personal service of summons within the forum
is required for the court to acquire jurisdiction over the defendant (Magdalena Estate Inc. vs. Nieto, 125
SCRA 230). To confer jurisdiction on the court, personal or substituted service of summons on the
defendant not extraterritorial service is necessary (Dial Corp vs. Soriano, 161 SCRA 739).

But while plaintiff-appellant concedes that the collection suit filed is an action in personam, it is its
theory that a distinction must be made between an action in personam against a resident defendant
and an action in personam against a non-resident defendant. Jurisdiction is acquired over a non-resident
defendant only if he is served personally within the jurisdiction of the court and over a resident
defendant if by personal, substituted or constructive service conformably to statutory authorization.
Plaintiff-appellant argues that since the defendant-appellee maintains branches in Japan it is considered
a resident defendant. Corollarily, personal, substituted or constructive service of summons when made
in compliance with the procedural rules is sufficient to give the court jurisdiction to render judgment in
personam.

Such an argument does not persuade.

It is a general rule that processes of the court cannot lawfully be served outside the territorial limits of
the jurisdiction of the court from which it issues (Carter vs. Carter; 41 S.E. 2d 532, 201) and this is
regardless of the residence or citizenship of the party thus served (Iowa-Rahr vs. Rahr, 129 NW 494, 150
Iowa 511, 35 LRC, NS, 292, Am. Case 1912 D680). There must be actual service within the proper
territorial limits on defendant or someone authorized to accept service for him. Thus, a defendant,
whether a resident or not in the forum where the action is filed, must be served with summons within
that forum.

But even assuming a distinction between a resident defendant and non-resident defendant were to be
adopted, such distinction applies only to natural persons and not in the corporations. This finds support
in the concept that "a corporation has no home or residence in the sense in which those terms are
applied to natural persons" (Claude Neon Lights vs. Phil. Advertising Corp., 57 Phil. 607). Thus, as cited
by the defendant-appellee in its brief:

Residence is said to be an attribute of a natural person, and can be predicated on an artificial being only
by more or less imperfect analogy. Strictly speaking, therefore, a corporation can have no local
residence or habitation. It has been said that a corporation is a mere ideal existence, subsisting only in
contemplation of law — an invisible being which can have, in fact, no locality and can occupy no space,
and therefore cannot have a dwelling place. (18 Am. Jur. 2d, p. 693 citing Kimmerle v. Topeka, 88 370,
128 p. 367; Wood v. Hartfold F. Ins. Co., 13 Conn 202)

Jurisprudence so holds that the foreign or domestic character of a corporation is to be determined by

the place of its origin where its charter was granted and not by the location of its business activities
(Jennings v. Idaho Rail Light & P. Co., 26 Idaho 703, 146 p. 101), A corporation is a "resident" and an
inhabitant of the state in which it is incorporated and no other (36 Am. Jur. 2d, p. 49).

Defendant-appellee is a Philippine Corporation duly organized under the Philippine laws. Clearly, its
residence is the Philippines, the place of its incorporation, and not Japan. While defendant-appellee
maintains branches in Japan, this will not make it a resident of Japan. A corporation does not become a
resident of another by engaging in business there even though licensed by that state and in terms given
all the rights and privileges of a domestic corporation (Galveston H. & S.A.R. Co. vs. Gonzales, 151 US
496, 38 L ed. 248, 4 S Ct. 401).
On this premise, defendant appellee is a non-resident corporation. As such, court processes must be
served upon it at a place within the state in which the action is brought and not elsewhere (St. Clair vs.
Cox, 106 US 350, 27 L ed. 222, 1 S. Ct. 354).5

It then concluded that the service of summons effected in Manila or beyond the territorial boundaries of
Japan was null and did not confer jurisdiction upon the Tokyo District Court over the person of SHARP;
hence, its decision was void.

Unable to obtain a reconsideration of the decision, NORTHWEST elevated the case to this Court
contending that the respondent court erred in holding that SHARP was not a resident of Japan and that
summons on SHARP could only be validly served within that country.

A foreign judgment is presumed to be valid and binding in the country from which it comes, until the
contrary is shown. It is also proper to presume the regularity of the proceedings and the giving of due
notice therein.6

Under Section 50, Rule 39 of the Rules of Court, a judgment in an action in personam of a tribunal of a
foreign country having jurisdiction to pronounce the same is presumptive evidence of a right as between
the parties and their successors-in-interest by a subsequent title. The judgment may, however, be
assailed by evidence of want of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact. Also, under Section 3 of Rule 131, a court, whether of the Philippines or
elsewhere, enjoys the presumption that it was acting in the lawful exercise of jurisdiction and has
regularly performed its official duty.

Consequently, the party attacking a foreign judgment has the burden of overcoming the presumption of
its validity.7 Being the party challenging the judgment rendered by the Japanese court, SHARP had the
duty to demonstrate the invalidity of such judgment. In an attempt to discharge that burden, it contends
that the extraterritorial service of summons effected at its home office in the Philippines was not only
ineffectual but also void, and the Japanese Court did not, therefore acquire jurisdiction over it.

It is settled that matters of remedy and procedure such as those relating to the service of process upon
a defendant are governed by the lex fori or the internal law of the forum.8 In this case, it is the
procedural law of Japan where the judgment was rendered that determines the validity of the
extraterritorial service of process on SHARP. As to what this law is is a question of fact, not of law. It may
not be taken judicial notice of and must be pleaded and proved like any other fact.9 Sections 24 and 25,
Rule 132 of the Rules of Court provide that it may be evidenced by an official publication or by a duly
attested or authenticated copy thereof. It was then incumbent upon SHARP to present evidence as to
what that Japanese procedural law is and to show that under it, the assailed extraterritorial service is
invalid. It did not. Accordingly, the presumption of validity and regularity of the service of summons and
the decision thereafter rendered by the Japanese court must stand.

Alternatively in the light of the absence of proof regarding Japanese

law, the presumption of identity or similarity or the so-called processual presumption 10 may be
invoked. Applying it, the Japanese law on the matter is presumed to be similar with the Philippine law
on service of summons on a private foreign corporation doing business in the Philippines. Section 14,
Rule 14 of the Rules of Court provides that if the defendant is a foreign corporation doing business in the
Philippines, service may be made: (1) on its resident agent designated in accordance with law for that
purpose, or, (2) if there is no such resident agent, on the government official designated by law to that
effect; or (3) on any of its officers or agents within the Philippines.

If the foreign corporation has designated an agent to receive summons, the designation is exclusive, and
service of summons is without force and gives the court no jurisdiction unless made upon him. 11

Where the corporation has no such agent, service shall be made on the government official designated
by law, to wit: (a) the Insurance Commissioner in the case of a foreign insurance company; (b) the
Superintendent of Banks, in the case of a foreign banking corporation; and (c) the Securities and
Exchange Commission, in the case of other foreign corporations duly licensed to do business in the
Philippines. Whenever service of process is so made, the government office or official served shall
transmit by mail a copy of the summons or other legal proccess to the corporation at its home or
principal office. The sending of such copy is a necessary part of the service. 12

SHARP contends that the laws authorizing service of process upon the Securities and Exchange
Commission, the Superintendent of Banks, and the Insurance Commissioner, as the case may be,
presuppose a situation wherein the foreign corporation doing business in the country no longer has any
branches or offices within the Philippines. Such contention is belied by the pertinent provisions of the
said laws. Thus, Section 128 of the Corporation Code 13 and Section 190 of the Insurance Code 14
clearly contemplate two situations: (1) if the corporation had left the Philippines or had ceased to
transact business therein, and (2) if the corporation has no designated agent. Section 17 of the General
Banking Act 15 does not even speak a corporation which had ceased to transact business in the
Philippines.

Nowhere in its pleadings did SHARP profess to having had a resident agent authorized to receive court
processes in Japan. This silence could only mean, or least create an impression, that it had none. Hence,
service on the designated government official or on any of SHARP's officers or agents in Japan could be
availed of. The respondent, however, insists that only service of any of its officers or employees in its
branches in Japan could be resorted to. We do not agree. As found by the respondent court, two
attempts at service were made at SHARP's Yokohama branch. Both were unsuccessful. On the first
attempt, Mr. Dinozo, who was believed to be the person authorized to accept court process, was in
Manila. On the second, Mr. Dinozo was present, but to accept the summons because, according to him,
he was no longer an employee of SHARP. While it may be true that service could have been made upon
any of the officers or agents of SHARP at its three other branches in Japan, the availability of such a
recourse would not preclude service upon the proper government official, as stated above.

As found by the Court of Appeals, it was the Tokyo District Court which ordered that summons for
SHARP be served at its head office in the Philippine's after the two attempts of service had failed. 16 The
Tokyo District Court requested the Supreme Court of Japan to cause the delivery of the summons and
other legal documents to the Philippines. Acting on that request, the Supreme Court of Japan sent the
summons together with the other legal documents to the Ministry of Foreign Affairs of Japan which, in
turn, forwarded the same to the Japanese Embassy in Manila . Thereafter, the court processes were
delivered to the Ministry (now Department) of Foreign Affairs of the Philippines, then to the Executive
Judge of the Court of First Instance (now Regional Trial Court) of Manila, who forthwith ordered Deputy
Sheriff Rolando Balingit to serve the same on SHARP at its principal office in Manila. This service is
equivalent to service on the proper government official under Section 14, Rule 14 of the Rules of Court,
in relation to Section 128 of the Corporation Code. Hence, SHARP's contention that such manner of
service is not valid under Philippine laws holds no water.17
In deciding against the petitioner, the respondent court sustained the trial court's reliance on Boudard
vs. Tait 18 where this Court held:

The fundamental rule is that jurisdiction in personam over nonresidents, so as to sustain a money
judgment, must be based upon personal service within the state which renders the judgment.

xxx xxx xxx

The process of a court, has no extraterritorial effect, and no jurisdiction is acquired over the person of
the defendant by serving him beyond the boundaries of the state. Nor has a judgment of a court of a
foreign country against a resident of this country having no property in such foreign country based on
process served here, any effect here against either the defendant personally or his property situated
here.

Process issuing from the courts of one state or country cannot run into another, and although a
nonresident defendant may have been personally served with such process in the state or country of his
domicile, it will not give such jurisdiction as to authorize a personal judgment against him.

It further availed of the ruling in Magdalena Estate, Inc. vs. Nieto 19 and Dial Corp. vs. Soriano, 20 as well
as the principle laid down by the Iowa Supreme Court in the 1911 case of Raher vs. Raher. 21

The first three cases are, however, inapplicable. Boudard involved the enforcement of a judgment of the
civil division of the Court of First Instance of Hanoi, French Indo-China. The trial court dismissed the case
because the Hanoi court never acquired jurisdiction over the person of the defendant considering that
"[t]he, evidence adduced at the trial conclusively proves that neither the appellee [the defendant] nor
his agent or employees were ever in Hanoi, French Indo-China; and that the deceased Marie Theodore
Jerome Boudard had never, at any time, been his employee." In Magdalena Estate, what was declared
invalid resulting in the failure of the court to acquire jurisdiction over the person of the defendants in an
action in personam was the service of summons through publication against non-appearing resident
defendants. It was claimed that the latter concealed themselves to avoid personal service of summons
upon them. In Dial, the defendants were foreign corporations which were not, domiciled and licensed to
engage in business in the Philippines and which did not have officers or agents, places of business, or
properties here. On the other hand, in the instant case, SHARP was doing business in Japan and was
maintaining four branches therein.

Insofar as to the Philippines is concerned, Raher is a thing of the past. In that case, a divided Supreme
Court of Iowa declared that the principle that there can be no jurisdiction in a court of a territory to
render a personal judgment against anyone upon service made outside its limits was applicable alike to
cases of residents and non-residents. The principle was put at rest by the United States Supreme Court
when it ruled in the 1940 case of Milliken vs. Meyer 22 that domicile in the state is alone sufficient to
bring an absent defendant within the reach of the state's jurisdiction for purposes of a personal
judgment by means of appropriate substituted service or personal service without the state. This
principle is embodied in section 18, Rule 14 of the Rules of Court which allows service of summons on
residents temporarily out of the Philippines to be made out of the country. The rationale for this rule
was explained in Milliken as follows:
[T]he authority of a state over one of its citizens is not terminated by the mere fact of his absence from
the state. The state which accords him privileges and affords protection to him and his property by
virtue of his domicile may also exact reciprocal duties. "Enjoyment of the privileges of residence within
the state, and the attendant right to invoke the protection of its laws, are inseparable" from the various
incidences of state citizenship. The responsibilities of that citizenship arise out of the relationship to the
state which domicile creates. That relationship is not dissolved by mere absence from the state. The
attendant duties, like the rights and privileges incident to domicile, are not dependent on continuous
presence in the state. One such incident of domicile is amenability to suit within the state even during
sojourns without the state, where the state has provided and employed a reasonable method for
apprising such an absent party of the proceedings against him. 23

The domicile of a corporation belongs to the state where it was incorporated. 24 In a strict technical
sense, such domicile as a corporation may have is single in its essence and a corporation can have only
one domicile which is the state of its creation. 25

Nonetheless, a corporation formed in one-state may, for certain purposes, be regarded a resident in
another state in which it has offices and transacts business. This is the rule in our jurisdiction and
apropos thereto, it may be necessery to quote what we stated in State Investment House, Inc, vs.
Citibank, N.A., 26 to wit:

The issue is whether these Philippine branches or units may be considered "residents of the Philippine
Islands" as that term is used in Section 20 of the Insolvency Law . . . or residents of the state under the
laws of which they were respectively incorporated. The answer cannot be found in the Insolvency Law
itself, which contains no definition of the term, resident, or any clear indication of its meaning. There are
however other statutes, albeit of subsequent enactment and effectivity, from which enlightening
notions of the term may be derived.

The National Internal Revenue Code declares that the term "'resident foreign corporation' applies to a
foreign corporation engaged in trade or business within the Philippines," as distinguished from a "'non-
resident foreign corporation' . . . (which is one) not engaged in trade or bussiness within the
Philippines." [Sec. 20, pars. (h) and (i)].

The Offshore Banking Law, Presidential Decree No. 1034, states "that branches, subsidiaries, affiliation,
extension offices or any other units of corporation or juridical person organized under the laws of any
foreign country operating in the Philippines shall be considered residents of the Philippines. [Sec. 1(e)].

The General Banking Act, Republic Act No. 337, places "branches and agencies in the Philippines of
foreign banks . . . (which are) called Philippine branches," in the same category as "commercial banks,
savings associations, mortgage banks, development banks, rural banks, stock savings and loan
associations" (which have been formed and organized under Philippine laws), making no distinction
between the former and the latter in so far as the terms "banking institutions" and "bank" are used in
the Act [Sec. 2], declaring on the contrary that in "all matters not specifically covered by special
provisions applicable only to foreign banks, or their branches and agencies in the Philippines, said
foreign banks or their branches and agencies lawfully doing business in the Philippines "shall be bound
by all laws, rules, and regulations applicable to domestic banking corporations of the same class, except
such laws, rules and regulations as provided for the creation, formation, organization, or dissolution of
corporations or as fix the relation, liabilities, responsibilities, or duties of members, stockholders or
officers of corporation. [Sec. 18].
This court itself has already had occasion to hold [Claude Neon Lights, Fed. Inc. vs. Philippine Advertising
Corp., 57 Phil. 607] that a foreign corporation licitly doing business in the Philippines, which is a
defendant in a civil suit, may not be considered a non-resident within the scope of the legal provision
authorizing attachment against a defendant not residing in the Philippine Islands; [Sec. 424, in relation
to Sec. 412 of Act No. 190, the Code of Civil Procedure; Sec. 1(f), Rule 59 of the Rules of 1940, Sec. 1(f),
Rule 57, Rules of 1964] in other words, a preliminary attachment may not be applied for and granted
solely on the asserted fact that the defendant is a foreign corporation authorized to do business in the
Philippines — and is consequently and necessarily, "a party who resides out of the Philippines."
Parenthetically, if it may not be considered as a party not residing in the Philippines, or as a party who
resides out of the country, then, logically, it must be considered a party who does reside in the
Philippines, who is a resident of the country. Be this as it may, this Court pointed out that:

. . . Our laws and jurisprudence indicate a purpose to assimilate foreign corporations, duly licensed to do
business here, to the status of domestic corporations. (Cf. Section 73, Act No. 1459, and Marshall Wells
Co. vs. Henry W. Elser & Co., 46 Phil. 70, 76; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 411) We think it
would be entirely out of line with this policy should we make a discrimination against a foreign
corporation, like the petitioner, and subject its property to the harsh writ of seizure by attachment when
it has complied not only with every requirement of law made specially of foreign corporations, but in
addition with every requirement of law made of domestic corporations. . . .

Obviously, the assimilation of foreign corporations authorized to do business in the Philippines "to the
status of domestic corporations, subsumes their being found and operating as corporations, hence,
residing, in the country.

The same principle is recognized in American law: that the residence of a corporation, if it can be said to
have a residence, is necessarily where it exercises corporate functions . . .;" that it is considered as
dwelling "in the place where its business is done . . .," as being "located where its franchises are
exercised . . .," and as being "present where it is engaged in the prosecution of the corporate
enterprise;" that a "foreign corporation licensed to do business in a state is a resident of any country
where it maintains an office or agent for transaction of its usual and customary business for venue
purposes;" and that the "necessary element in its signification is locality of existence." [Words and
Phrases, Permanent Ed., vol. 37, pp. 394, 412, 493].

In as much as SHARP was admittedly doing business in Japan through its four duly registered branches at
the time the collection suit against it was filed, then in the light of the processual presumption, SHARP
may be deemed a resident of Japan, and, as such, was amenable to the jurisdiction of the courts therein
and may be deemed to have assented to the said courts' lawful methods of serving process. 27

Accordingly, the extraterritorial service of summons on it by the Japanese Court was valid not only
under the processual presumption but also because of the presumption of regularity of performance of
official duty.

We find NORTHWEST's claim for attorney's fees, litigation expenses, and exemplary damages to be
without merit. We find no evidence that would justify an award for attorney's fees and litigation
expenses under Article 2208 of the Civil Code of the Philippines. Nor is an award for exemplary damages
warranted. Under Article 2234 of the Civil Code, before the court may consider the question of whether
or not exemplary damages should be awarded, the plaintiff must show that he is entitled to moral,
temperate, or compensatory damaged. There being no such proof presented by NORTHWEST, no
exemplary damages may be adjudged in its favor.

WHEREFORE, the instant petition is partly GRANTED, and the challenged decision is AFFIRMED insofar as
it denied NORTHWEST's claims for attorneys fees, litigation expenses, and exemplary damages but
REVERSED insofar as in sustained the trial court's dismissal of NORTHWEST's complaint in Civil Case No.
83-17637 of Branch 54 of the Regional Trial Court of Manila, and another in its stead is hereby rendered
ORDERING private respondent C.F. SHARP L COMPANY, INC. to pay to NORTHWEST the amounts
adjudged in the foreign judgment subject of said case, with interest thereon at the legal rate from the
filing of the complaint therein until the said foreign judgment is fully satisfied.

Costs against the private respondent.

SO ORDERED.

Padilla, Bellosillo, Quaison and Kapunan, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 86062 June 6, 1990

INTERPACIFIC TRANSIT, INC., petitioner,

vs.
RUFO AVILES and JOSEPHINE AVILES, respondents.

Balane, Barican, Cruz, Alampay Law Office for petitioner.

Francisco G. Mendoza private respondents.

CRUZ, J.:

This case hinges on the proper interpretation and application of the rules on the admissibility of
documentary evidence and the viability. of a civil action for damages arising from the same acts imputed
to the defendant in a criminal action where he has been acquitted.

In the information filed against Rufo and Josephine Aviles, the private respondents herein, it was alleged
that being then sub-agents of Interpacific Transit, Inc. and as such enjoying its trust and confidence, they
collected from its various clients payments for airway bills in the amount of P204,030.66 which, instead
of remitting it to their principal, they unlawfully converted to their own personal use and benefit. 1
At the trial, the prosecution introduced photocopies of the airway bills supposedly received by the
accused for which they had not rendered proper accounting. This was done in, the course of the direct
examination of one of the prosecution witnesses. 2 The defense objected to their presentation, invoking
the best evidence rule. The prosecution said it would submit the original airway bills in due time. Upon
such undertaking, the trial court allowed the marking of the said documents a s Exhibits "B" to "OO."
The e prosecution n did submit the original airway bills nor did it prove their loss to justify their
substitution with secondary evidence. Nevertheless, when the certified photocopies of the said bills
formally were offered, 3 in evidence, the defense interposed no objection.

In acquitting the accused, Judge Herminio I. Benito of the Regional Trial Court of Makati rejected the
agency theory of the prosecution and held that the relationship between the petitioner and Rufo Aviles
was that of creditor and debtor only. "Under such relationship,' it declared, "the outstanding account, if
any, of the accused in favor of ITI would be in the nature of an indebtedness, the non- payment of which
does not Constitute estafa." 4

The court' also held that the certified photocopies of the airway by were not admissible under the rule
that "there can be no evidence of a writing the content of which is the subject of inquiry other' than the
writing itself." Loss of the originals had not been proved to justify the exception to the rule as one of the
prosecution witness had testified that they were still in the ITI bodega. Neither had it been shown that
the originals had been "recorded in an existing record a certified copy of which is made evidence by
law."

In its order denying the motion for reconsideration, the trial court declared that it "had resolved the
issue of whether the accused has civil obligation to ITI on the basis of the admissibility in evidence of the
xerox copies of the airway bills." 5

Right or wrong, the acquittal on the merits of the accused can no longer be the subject of an appeal
under the double jeopardy rule. However, the petitioner seeks to press the civil liability of the private
respondents, on the ground that the dismissal of the criminal action did not abate the civil claim for the
recovery of the amount. More to the point, ITI argues that the evidence of the airways bills should not
have been rejected and that it had sufficiently established the indebtedness of the private respondents
to it.

The Court of Appeals 6 affirmed, the decision of the trial court in toto, adding that the existing record
spoken of in Section 2 (e) and (d) of Rule 130 of the Rules of Court must be in the custody, of a public
officer only. It also declared that:

Since no evidence of civil liability was presented, no necessity existed on the part of the private
respondents to present evidence of payment of an obligation which was not shown to exist.

The petitioner now asks this Court to annul that judgment as contrary to law and the facts established at
the As in the courts below, it is insisting on the admissibility of its evidence to prove the civil liability of
the private respondents.

We agree with the petitioner. The certified photocopies of the airway bills should have been considered.

In assessing this evidence, the lower courts confined themselves to the best evidence rule and the
nature of the documents being presented, which they held did not come under any of the exceptions to
the rule. There is no question that the photocopies were secondary evidence and as such were not
admissible unless there was ample proof of the loss of the originals; and neither were the other
exceptions allowed by the Rules applicable. The trouble is that in rejecting these copies under Rule 130,
Section 2, the respondent court disregarded an equally important principle long observed in our trial
courts and amply supported by jurisprudence.

This is the rule that objection to documentary evidence must be made at the time it is formally offered.
as an exhibit and not before. Objection prior to that time is premature.

It is instructive at this paint to make a distinction between Identification of documentary evidence and
its formal offer as an exhibit. The first is done in the course of the trial and is accompanied by the
marking of the evidence an an exhibit. The second is done only when the party rests its case and not
before. The mere fact that a particular document is Identified and marked as an exhibit does not mean it
will be or has been offered as part of the evidence of the party. The party may decide to formally offer it
if it believes this will advance its cause, and then again it may decide not to do so at all. In the latter
event, the trial court is, under Rule 132, Section 35, not authorized to consider it.

Objection to the documentary evidence must be made at the time it is formally offered, not earlier. The
Identification of the document before it is marked as an exhibit does not constitute the formal offer of
the document as evidence for the party presenting it. Objection to the Identification and marking of the
document is not equivalent to objection to the document when it is formally offered in evidence. What
really matters is the objection to the document at the time it is formally offered as an exhibit.

In the case at bar, the photocopies of the airway bills were objected to by the private respondents as
secondary evidence only when they, were being Identified for marking by the prosecution. They were
nevertheless marked as exhibits upon the promise that the original airway bills would be submitted
later. it is true that the originals were never produced. Yet, notwithstanding this omission, the defense
did not object when the exhibits as previously marked were formally offered in evidence. And these
were subsequently admitted by the trial court. 7

In People v. Teodoro, 8 a document being Identified by a prosecution witness was objected to as merely
secondary, whereupon the trial judge ordered the testimony stricken out. This Court, in holding the
objection to be premature, said:

It must be noted that the Fiscal was only Identifying the official records of service of the defendant
preparatory to introducing them as evidence. ... The time for the presentation of the records had not yet
come; presentation was to be made after their Identification. For what purpose and to what end the
Fiscal would introduce them as evidence was not yet stated or disclosed. ... The objection of counsel for
the defendant was, therefore, premature, especially as the Fiscal had not yet stated for what purpose he
would introduce the said records. ...

The time for objecting the evidence is when the same is offered. (Emphasis supplied).

The objection of the defense to the photocopies of the airway bins while they were being Identified and
marked as exhibits did not constitute the objection it should have made when the exhibits were formally
offered in evidence by the prosecution. No valid and timely objection was made at that time. And it is no
argument to say that the earlier objection should be considered a continuing objection under Sec. 37 of
Rule 132, for that provision obviously refers to a single objection to a class of evidence (testimonial or
documentary) which when first offered is considered to encompass the rest of the evidence. The
presumption is, of course, that there was an offer and a seasonable objection thereto. But, to repeat, no
objection was really made in the case before us because it was not made at the proper time.

It would have been so simple for the defense to reiterate its former objection, this time seasonably,
when the formal offer of exhibits was made. It is curious that it did not, especially so since the
objections to the formal offer of exhibits was made in writing. In fact, the defense filed no objection at
all not only to the photocopies but to all the other exhibits of the prosecution.

The effect of such omission is obvious. The rule is that evidence not objected to is deemed admitted and
may be validly considered by the court in arriving at its judgment. 9 This is true even if by its nature the
evidence is inadmissible and would have surely been rejected if it had been challenged at the proper
time.

The records certainly would have been the, beet proof of such former conviction. The certificate was not
the best proof. There seems to be no justification for the presentation of proof of a character. ... Under
an objection upon the ground that the said certificate was not the best proof, it should have been
rejected. Once admitted, however, without objection, even though not admissible under an objection,
we are not inclined now to reject it. If the defendant had opportunely presented an objection to the
admissibility of said certificate, no doubt the prosecution would have presented the best proof upon the
questions to which said certificate relates. 10

(It) is universally accepted that when secondary or incompetent evidence is presented and accepted
without any objection on the part of the other party, the latter is bound thereby and the court is obliged
to grant it the probatory value it deserves. 11

We hold therefore that it was erroneous for the lower courts to reject the photocopies of the airway
bills to prove the liability of the private respondents to the petitioner. While we may agree that there
was really no criminal liability that could attach to them because they had no fiduciary relationship with
ITI, the rejected evidence sufficiently established their indebtedness to the petitioner. Hence, we must
reverse the ruling below that "on account of the inadmissibility of the prosecution's Exhibits 'B' and 'OO',
coupled with the denial made by the accused, there appears to be no concrete proof of such
accountability."

Accoording to Rule 120, Section 2, of the Rules of Court:

In case of acquittal, unless there is a clear showing that the act from which the civil liability might arise
did not exist, the judgment shall make a finding on the civil liability of the accused in favor of the
offended party.

With the admission of such exhibits pursuant to the ruling above made, we find that there is concrete
proof of the defendant's accountability. More than this, we also disbelieve the evidence of the private
respondents that the said airway bills had been paid for. The evidence consists only of check stubs
corresponding to payments allegedly made by the accused to the ITI, and we find this insufficient.

As it is Aviles who has alleged payment, it is for him to prove that allegation. He did not produce any
receipt of such payment. He said that the cancelled payment checks had been lost and relied merely on
the check stubs, which are self-serving. The prosecution correctly stressed in its motion for
reconsideration that the accused could have easily secured a certification from the bank that the checks
allegedly issued to ITI had been honored. No such certification was presented. In short, the private
respondents failed to establish their allegation that payment for the airway bills delivered to them had
been duly remitted to ITI.

In Padilla v. Court of Appeals, 12 we held:

There appear to be no sound reasons to require a separate civil action to still be filed considering that
the facts to be proved in the civil case have already been established in the criminal proceedings where
the accused was acquitted. He was, in fact, exonerated of the charge. The constitutional presumption of
innocence called for more vigilant efforts on the part of prosecuting attorneys and defense counsel, a
keener awareness by all witnesses of the serious implications of perjury, and a more studied
consideration by the judge of the entire records and of applicable statutes and precedents. To require a
separate civil action simply because the accused was I acquitted would mean needless clogging of court
dockets and unnecessary duplication of litigation with all its attendant loss of time, effort, and money on
the part of all concerned.

By the same token, we find that remand of this case to, the trial court for further hearings would be a
needless waste of time and effort to the prejudice of the speedy administration of justice. Applying the
above ruling, we hereby declare therefore, on the basis of the evidence submitted at the trial as
reflected in the records before us, that the private respondents are liable to the petitioner in the sum of
P204,030.66, representing the cost of the airway bills.

WHEREFORE, the petition is GRANTED. The challenged decision of the Court of Appeals is SET ASIDE and
a new one is rendered ORDERING the private respondents to. pay to the petitioner the sum of
P204,030.66, with 6% interest from November 16, 1981, plus the costs of this suit.

SO ORDERED.

Narvasa (Chairman), Gancayco and Medialdea, concur.

Griño-Aquino, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-43955-56 July 30, 1979

RENATO LAZATIN alias RENATO STA. CLARA, petitioner,

vs.
HONORABLE JUDGE JOSE C. CAMPOS, JR., NORA L. DE LEON, BERNARDO DE LEON, ARLENE DE LEON and
IRMA L. VELOSO, respondents.

Ernesto T. Zshornack, Jr. for petitioner.

Jose W. Diokno Law Office private respondents the Leons.

Arturo E. Balbastro for privates respondent Veloso.

TEEHANKEE, J.:1äwphï1.ñët

The Court dismisses the petition which seeks to overrule respondent judge's orders declaring that
petitioner has failed to establish by competent evidence his alleged status as an adopted child of the
deceased Lazatin spouses and prays for judgment of this Court "declaring as established the fact of (his)
adoption as a son of the deceased spouses entitling him to succeed in their estates as such."
Respondent judge correctly ruled that he could not allow petitioner (who had filed a motion to
intervene in the proceedings to probate the will of the late Margarita de Asis Vda. de Lazatin and to
settle her estate as her adopted son, after having earlier filed a motion to intervene in the intestate
proceedings of her pre-deceased husband as his admitted illegitimate [not natural] son), over the
opposition of private respondents, to introduce evidence that he had "enjoyed ... the status of an
adopted child of the without his first producing competent and documentary that there had been
judicial proceedings for his by the said spouses which resulted in the final judgment of a competent
court decreeing his adoption.

On January 13, 1974, Dr. Mariano M. Lazatin diamond intestate in Pasay City, survived by his wife,
Margarita de Asis, and his adopted twin daughters, respondent Nora L. de Leon, married to respondent
Bernardo de Leon, and respondent Irma Lazatin, married to Francisco Veloso.

One month after Mariano's death, his widow, Margarita de Asis, commenced an intestate proceeding
before the Court of First Instance of Pasay, docketed as Sp. Proc. No. 2326-P. Mariano, Oscar, Virgilio
and Yvonne, claiming to be admitted illegitimate (not natural) children of Dr. Lazatin with one Helen
Munoz, intervened. Subsequently, one Lily Lazatin also intervened, claiming to be another admitted
illegitimate (not natural) child.

Two months after or on April 11, 1974, the widow, Margarita de Asis, also died, leaving a & holographic
will executed on May 29, 1970, providing, among others, for a legacy of cash, jewelry, and stocks to
respondent Arlene de Leon, a granddaughter; a legacy of support to Rodolfo Gallardo, a son of her late
sister; and a legacy of education to Ramon Sta. Clara, son of petitioner Renato Lazatin alias Renato Sta.
Clara.

During her lifetime, Margarita de Asis kept a safety deposit box at the People's Bank and Trust Company,
Roxas Boulevard branch, which either she or respondent Nora L. de Leon could open. Five days after
Margarita's death, respondent Nora L. de Leon, accompanied by her husband, respondent Bernardo de
Leon, opened the safety deposit box and removed its contents: (a) shares of stock; (b) her adoption
papers and those of her sister, respondent Irma L. Veloso; and (c) jewelry belonging to her and to her
mother. Respondent Nora L. de Leon claims that she opened the safety deposit box in good faith,
believing that it was held jointly by her and her deceased mother. Her sole reason for opening the box
was to get her stock certificates and other small items deposited therein. When she was to close the
deposit box, the bank personnel informed her that she needed an authority from the court to do so, in
view of her mother's death and so, she removed everything from the box.
On June 3, 1974, private respondents filed a petition to probate the will of the late Margarita de Asis,
before docketed as Sp. Proc. No. 2341-P of respondent Court, Days after having learned that respondent
Nora L. de Leon had opened this safety deposit box, petitioner's son, Ramon Sta. Clara, filed a motion in
the probate court, claiming that the deceased had executed a will subsequent to that submitted for
probate and demanding its production. He likewise prayed for the opening of the safety deposit box.
Respondent Nora L. de Leon admitted that she opened the box but there was no will or any document
resembling a will therein.

Upon the order of the probate court, presided over by Judge Arsenio B. Alcantara, the safety deposit box
was opened on November 6, 1974, at which time it was found to be empty, because prior thereto
respondent Nora L. de Leon had already removed its contents.

On November 22, 1974, or seven months after, the death of Margarita de Asis, petitioner intervened for
the first time in the proceedings to settle the estate of the late Dr. Mariano M. Lazatin (Sp. Proc. No.
2326- P), as an admitted illegitimate (not natural) child.

Under the same date of November 22, 1974, petitioner's son, Ramon, filed a petition in the estate
proceedings of Margarita de Asis to examine private respondents on the contents of the safety deposit
box, Whereupon, on January 31, 1975, the probate court ordered respondent Nora L. de Leon to deliver
the properties taken from the safety deposit box to the Clerk of Court. Subsequently, however, the two
cases (Sp. Proc. No. 2326-P, Mariano Lazatin, and 2341-P, Margarita de Asis) were transferred to the sala
of respondent Judge Jose C. Campos, Jr.

On May 29, 1975, Judge Campos issued an order requiring counsel for respondents Nora L. de Leon and
Bernardo de Leon to produce all those papers and items removed from the safety deposit box and to
deliver the same to the custody of the court within one week. Within the period ordered, respondent
Nora L. de Leon deposited with the Clerk of Court, not the items themselves, but two keys to a new
safety deposit box which could only be opened upon order of the court.

On August 20, 1975, petitioner Renato to Lazatin alias Renato Sta. Clara filed a motion to intervene in
the estate of Margarita de Asis, Sp. Proc. No. 2341-P, as an adopted child, on the basis of an affidavit
executed by Benjamin Lazatin, brother of the deceased Dr. Mariano M. Lazatin, the petitioner was an
"illegitimate son" of Dr. Lazatin and was later adopted by him. This affidavit was later modified on
August 19, 1975 to state that petitioner was adopted by both Mariano M. Lazatin and his wife Margarita
de Asis.

On September 29, 1975, Judge Campos found respondent' Nora L. de Leon guilty of contempt of court
for not complying with the orders of January 31, 1975 and May 29, 1975, requiring her to produce and
deliver to the court an the papers and items removed from the safety deposit box. Her former counsel
was also found guilty of contempt, sentenced to pay a fine of P00.00 and suspended from appearing in
the two cases (Sp. Proc. No. 2326-P, Mariano M. Lazatin, and Sp. Proc. No. 2341-P, Margarita de Asis),
on her testimony that she, Nora L. de Leon, acted upon his advice.

Respondent court heard petitioner's motion to intervene as an adopted son in the estate of Margarita
de Asis, Sp. Proc. No. 2341-P, at which hearings petitioner presented no decree of adoption in his, favor.
Instead, petitioner attempted to prove, over private respondents' objections, that he had recognized the
deceased spouses as his parents; he had been supported by them until their death; formerly he was
known as "Renato Lazatin" but was compelled to change his surname to "Sta. Clara" when the deceased
spouses refused to give consent to his marriage to his present wife; that at first, he and his wife stayed
at the residence of Engracio de Asis, father of Margarita, but a few months later, they transferred to the
Mercy Hospital at Taft Avenue, Manila, owned by the deceased spouses, where they continuously
resided up to the present. Photographs were also intended to be presented by petitioner, e.g.,
photograph of Irma Veloso where she addressed herself as sister of petitioner; photograph of deceased
Margarita de Asis and petitioner when he was a boy; document showing that petitioners real name is
"Renato Lazatin." 1

Respondent court first reserved its ruling on private respondents' objections to the admission of
petitioner's evidence, but on November 14, 1975, when petitioner could not present evidence on the
issue of his alleged legal adoption, respondent court discontinued the hearing and gave the parties time
to file memoranda on the question of the admissibility of the evidence sought to be introduced by
petitioner.

On March 4, 1976, respondent court barred the introduction of petitioner's evidence because:
têñ.£îhqwâ£

All the evidence submitted by Renato and Ramon Sta. Clara through their counsel do not prove or have
no tendency to prove the existence of any judicial proceeding where the adoption of the parties above
named were taken up by any court. Neither do the evidence tend to establish the presence of any
record of a proceeding in court where the adoption of the above named persons was held. The
evidence, however, tends to prove a status of a recognized natural child which, however, is not the legal
basis for which Renato and Ramon seek to intervene in this proceedings. In view thereof, and taking into
consideration the evidence heretofore presented by the petitioners, any further introduction of similar
evidence, documentary or oral, would not prove or tend to prove the fact of their adoption but rather of
a recognized natural child.

Petitioner then filed on March 16, 1976, in both cases, a motion to declare as established the fact of
adoption in view of respondent Nora L. de Leon's refusal to comply with the orders of respondent court
to deposit the items she had removed from the safety deposit box of Margarita de Asis. As authority
therefor, petitioner invokes the sanction of Rule 29, Section 3 of the Rules of Court, since according to
him, the order of the court for the production of the items in the safety deposit box can be considered
as an order for production and inspection of documents under Rule 27.

Private respondents opposed the motion, and on March 26, 1976, respondent court denied petitioner's
motion. On April 26, 1976, respondent Nora L. de Leon deposited with respondent court the items she
had removed from the safety deposit box. An inventory was conducted by respondent court, with notice
to the parties, and the items surrendered consisted only of pieces of jewelry and stock certificates.

On June 3,1976, respondent court, ruling on petitioners motion for definite resolution on his previous n
declare as established the fact of adoption, issued the f order: têñ.£îhqwâ£

As far as the case of Renato Sta. Clara is his Petition to establish his status as an adopted child, The Court
has ruled that he has failed to establish such status. The any motion for reconsideration unless based on
some documentary proof.

Hence, the petition at bar.

We find the ruling of the respondent court to be in conformity with law and jurisprudence.

1. Adoption is a juridical act, a proceeding in rem 2 which creates between two persons a
relationship similar to that which results from legitimate paternity and filiation. 3 Only an adoption
made through the court, or in pursuance with the procedure laid down under Rule 99 of the Rules of
Court is valid in this jurisdiction. 4 It is not of natural law at all, but is wholly and entirely artificial. 5 To
establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is
an absolute nullity. 6 The fact of adoption is never presumed, but must be affirmatively proved by the
person claiming its existence. The destruction by fire of a public building in which the adoption papers
would have been filed if existent does not give rise to a presumption of adoption nor is the destruction
of the records of an adoption proceeding to be presumed. On the contrary, the absence of a record of
adoption has been said to evolve a presumption of its non-existence. 7 Where, under the provisions of
the statute, an adoption is effected by a court order, the records of such court constitute the evidence
by which such adoption may be established. 8

2. Petitioner's flow of evidence in the case below does not lead us to any proof of judicial
adoption. We can not pluck from his chain of evidence any link to the real existence of a court decree of
adoption in his favor. Petitioner's proofs do not show or tend to show that at one time or another a
specific court of competent jurisdiction rendered in an adoption proceeding initiated by the late spouses
an order approving his adoption as a child of the latter. No judicial records of such adoption or copies
thereof are presented or attempted to be presented. Petitioner merely proceeds from a nebulous
assumption that he was judicially adopted between the years 1928 and 1932. By what particular court
was the adoption decreed or by whom was the petition heard, petitioner does not even manifest, much
less show. There are no witnesses cited to that adoption proceeding or to the adoption decree.
Apparently on the assumption that the adoption was commenced in Manila, petitioner's counsel
secured a certification from the Court of first Instance of Manila which, however, negatively reported
"(T)hat among the salvaged records now available in this Office, there has not been found, after a
diligent search, any record regarding the adoption of Mr. Renato Lazatin alias Renato Sta. Clara allegedly
filed sometime in the years 1928 to 1931 by the spouses Dr. Mariano M. Lazatin and Margarita de Asis
Lazatin." The certification of the Local Civil Registrar of Manila "(T)hat our pre-war records relative to
decisions of the Court of First Instance were either destroyed or burned during the Liberation of the City
of Manila," does not furnish any legal basis for a presumption of adoption in favor of petitioner. This is
because there was no proof that petitioner was really adopted in Manila or that an adoption petition
was filed in the Court of first Instance of Manila by the deceased spouses, where, after hearing, a
judgment of approval was rendered by said court. Moreover, if there was really such adoption,
petitioner could have conveniently secured a copy of the newpaper publication of the adoption as
required under Section 4, Rule 99 of the Rules of Court (formerly Section 4, Rule 100) or a certification of
the publishing house to that effect. Petitioner's failure on this point is anotherer strong indication of the
non-existence of the one who gave the written consent of the non-existence of the adoption paper. We
also observed to the adoption (Section 3, Rule 99, Rules of Court), whether the parents or orphanage,
does not appear on this point is not so difficult and such proof must be presented if only to prove the
real existence of the adoption. And of course, if the war, the clear right and duty of petitioner was to
duly reconstitute the records as provided by law.

3. The absence of proof of such order of adoption by the court, as provided by the statute, cannot
be substituted by parol evidence that a child has lived with a person, not his parent, and has been
treated as a child to establish such adoption. 9 Even evidence of declaration of the deceased, made in
his lifetime, that he intended to adopt a child as his heir, and that he had adopted him, and of the fact
that the child resided with the deceased, as a member of his family, from infancy until he attained his
majority, is not sufficient to establish the fact of adoption.10 Nor does the fact that the deceased
spouses fed, clothed, educated, recognized and referred to one like petitioner as an adopted child,
recognized and referred to one like petitioner as an adopted child, necessarily establish adoption of the
child. 11 Withal, the attempts of petitioner to prove his adoption by acts and declarations of the
deceased do not discharge the mandatory presentation of the judicial decree of adoption. The thrust of
petitioner's evidence is rather to establish his status as an admitted illegitimate child, not an adopted
child which status of an admitted illegitimate child was — the very basis of his petitioner for
intervention in the estate proceedings of the late Dr. Lazatin, as above stated. (Supra, at page 3 hereof)

We do not discount though that declarations in regard to pedigree, although hearsay, are admitted on
the principle that they are natural expressions of persons who must know the truth. 12 Pedigree
testimony is admitted because it is the best that the nature of the case admits and because greater evil
might arise from the rejection of such proof than from its admission. 13 But, in proving an adoption,
there is a better proof available and it should be produced. The whereabouts of the child's family and
circulation of the jurisdiction in which they resided and investigation in those courts where adoption are
usually granted would surely produce an adoption order, if indeed there was an order. 14 Besides, since
the point in favor of receiving hearsay evidence upon matters of family history or pedigree is its
reliability, it has been set forth as a condition upon which such evidence is received that it emanate from
a source within the family. Pursuant to this view, before a declaration of a deceased person can be
admitted to prove pedigree, or ancestry, the relationship of the declarant, by either of blood or affinity
to the family in question, or a branch thereof, must ordinarily be established by competent evidence. 15
Section 33 of Rule 130 states: "The act or declaration of a person deceased, or outside of the Philippines,
or unable to testify, in respect to the pedigree of another person related to him by birth or marriage,
may be received in evidence where it occurred before the controversy, and the relationship between
the two persons is shown by evidence other than such actor declaration ..."

4. Secondary evidence is nonetheless admissible where the records of adoption proceedings were
actually lost or destroyed. But, prior to the introduction of such secondary evidence, the proponent
must establish the former existence of the instrument. The correct order of proof is as follows:
Existence; execution; loss; contents; although this order may be changed if necessary in the discretion of
the court. 16 The sufficiency of the proof offered as a predicate for the admission of an alleged lost deed
lies within the judicial discretion of the trial court under all the circumstances of the particular case.17
As earlier pointed out, petitioner failed to establish the former existence of the adoption paper and its
subsequent loss or destruction. Secondary proof may only be introduced if it has first beer. established
that such adoption paper really existed and was lost. This is indispensable. 18 Petitioner's supposed
adoption was only testified to by him and is allegedly to be testified to a brother of the deceased
Mariano M. Lazatin or others who have witnessed that the deceased spouses treated petitioner as their
child. If adoption was really made, the records thereof should have existed and the same presented at
the hearing or subsequent thereto or a reasonable explanation of loss or destruction thereof, if that be
the case, adduced. 19

Assuming the mere fact that the deceased spouses treated petitioner as their child does not justify the
conclusion that petitioner had been in fact judicially adopted by the spouses nor does it constitute
admissible proof of adoption.

We cannot entertain the plea of petitioner that the sanction of Rule 29 should be applied to consider as
established the fact of his adoption due to the refusal of respondent Nora L. de Leon to produce the
document of adoption, because first, the fact or real existence of petitioner's adoption had not been
established; second, there is no proof that such document of adoption is in the possession of
respondent Nora L. de Leon; third, the motu proprio order of the court for Nora de Leon to produce the
items retrieved from the safety deposit box cannot be treated as a mode of discovery of production and
inspection of documents under Rule 27; and fourth, the items deposited in the safety deposit box have
already been surrendered by respondent Nora L. de Leon on April 26; 1976 and no document of
adoption in favor of petitioner was listed as found in the safety deposit box.

5. As a necessary consequence, petitioner Renato Lazatin alias Renato Sta. Clara cannot properly
intervene in the settlement of the estate of Margarita de Asis, Sp. Proc. No. 2341-P as an adopted child
because of lack of proof thereof. For one to intervene in an estate proceeding, it is a requisite that he
has an interest in the estate, either as one who would be benefited as an heir or one who has a claim
against the estate like a creditor. 20 A child by adoption cannot inherit from the parent creditor. by
adoption unless the act of adoption has been done in strict accord with the statue. Until this is done, no
rights are acquired by the child and neither the supposed adopting parent or adopted child could be
bound thereby. 21 The burden of proof in establishing adoption is upon the person claiming such
relationship. He must prove compliance with the statutes relating to adoption in the jurisdiction where
the adoption occurred. 22 A fortiori if no hereditary interest in the estate can be gained by a claimant
who failed to submit proof thereof, whether the will is probated or not, intervention should be denied
as it would merely result in unnecessary complication. 23 To succeed, a child must be ligitimate,
legitimated, adopted, acknowledged illegitimate natural child or natural child by legal fiction or
recognized spurious child. 24

In the face of the verified pleadings of record (constituting judicial admissions) which show that
petitioner sought to intervene on November 22, 1974 in the estate proceedings of his alleged adoptive
father Dr. Mariano M. Lazatin (Sp. Proc. No. 2326-P) as an admitted illegitimate (not natural) child, 25
while his intervention on August 20, 1975 in the estate of Margarita de Asis, widow of the deceased Dr.
Lazatin (Sp. Proc. No. 2341-P) was as her adopted child on the basis of the affidavit of a brother of the
deceased Dr. Lazatin, Benjamin Lazatin, executed August 19, 1975 (which affidavit modified a first
affidavit executed on May 31, 1975, which failed to estate by "oversight" petitioner, but stated that
affiant knew petitioner to be "an illegitimate son" of Dr. Lazatin who later "legally adopted (him) as a
son before the Court of First Instance of Manila sometime between the years 1928 and 1921") and
prescinding from the question of whether a natural or spurious child may be legally adopted by the
putative father, we hold that no grave abuse of discretion nor error of law as committed by respondent
judge in issuing the questioned orders of March 4, 1976, March 26, 1976 and June 3, 1976 denying
petitioner's petition "to declare as established in this proceeding the fact of adoption" and denying "any
motion for reconsideration unless based on some documentary proof." The Court finds no basis to grant
the affirmative relief sought in this proceeding by petitioner for a rendition of judgment "declaring as
established the fact of your petitioner's adoption as a son of the deceased spouses entitling him to
succeed in their estates as such in accordance with the applicable law on succession as to his
inheritance."

Upon the filing of the petition, the Court issued on June 16, 1976 a temporary restraining order; which
as amended on July 21, 1976, restrained respondent judge "from proceeding with the hearing scheduled
on June 17, 1976 at 8:30 a.m., requiring the submission of evidence to establish heirship in Special
Proceedings No. 2326-P entitled 'Intestate Estate of the Late Mariano M. Lazatin' and Special
Proceedings No. 2341-P, entitled 'Testate Estate of the late Margarita de Asis Vda. de Lazatin,' and from
proceeding with the probate of the alleged holographic will of the deceased Doñ;a Margarita de Asis
Vda. de Lazatin scheduled on June 29, 1976, August 10 and 12, 1976 and on any other dates." With the
Court's determination of the issues as herein set forth, there is no longer any need for restraining the
proceedings below and the said restraining order shall be immediately lifted.

On January 24, 1977, the Court upon petitioner's motion resolved to conditionally allow respondent
judge "to take the deposition of petitioner's witnesses to perpetuate their testimonies pursuant to Rule
134, Section 7 of the Rules of Court, subject to the Court's ruling in due course on the admissibility of
such testimonies." The Court thereby permitted in effect the advance testimonies of petitioner's
witnesses, principally among them Rafael Lazatin and Esteban L. Lazatin, both brothers of the deceased
Dr. Mariano L. Lazatin and as stated in petitioner's motion of January 11, 1977: têñ.£îhqwâ£

Substantially, the testimony of the above-named witnesses will be on the fact that they had been
informed by the deceased spouses, Mariano and Margarita Lazatin that your petitioner was their
[Mariano's and Margarita's] judicially adopted son and to elicit further from them the fact that your
petitioner enjoys the reputation of being their judicially adopted son in the Lazatin family.

The Court's resolution allowing the advance testimonies of petitioner's witnesses was but in application
of the Court's long standing admonition to trial courts is reaffirmed in Lamagan vs. De la Cruz, 26, "to be
liberal in accepting proferred evidence since even if they were to refuse to accept the evidence, the
affected party will nevertheless be allowed to spread the excluded evidence on the record, for review on
appeal." The Court therein once again stressed the established rule that "it is beyond question that
rulings of the trial court on procedural questions and on admissibility of evidence during the course of
the trial are interlocutory in nature and may not be the subject of separate appeal or review on
certiorari, but are to be assigned as errors and reviewed in the appeal properly taken from the decision
rendered by the trial court on the merits of the case," 27 and that a party's recourse when proferred
evidence is rejected by the trial court is to make a offer stating on the record what a party or witness
would have testified to were his testimony not excluded, as well as to attach to the record any rejected
exhibits.

At the continuation of the proceedings below for declaration of heirship and for probate of the alleged
holographic the deceased Margarita de Asis Vda. de Lazatin, pet who has failed to establish his status as
an alleged ;m child of Margarita de Asis (unless, as reserved to him by the court below, he can show
some documentary proof),and whose intervention in the estate of the deceased Dr. Mariano Lazatin is
as an admitted illegitimate child, win have to decide whether he will pursue his first theory of having the
of such admitted illegitimate child of said deceased. Whatever be his theory and his course of action and
whether or not he may be duly snowed to intervene in the proceedings below as such alleged admitted
illegitimate child, his recourse in the event of an adverse ruling against him is to make a formal offer of
proof and of his excluded evidence, oral and documentary, and seek a reversal on an appeal in due
course.

ACCORDINGLY, the petition is dismissed and the questioned orders denying petitioner's petition below
"to declare as established in this proceeding the fact of [his] adoption" are hereby affirmed. The
temporary restraining order issued on June 16, 1976 and amended on July 21, 1976 is ordered lifted,
effective immediately. Without costs.

SO ORDERED
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-28297 March 30, 1970

ELPIDIO JAVELLANA, plaintiff-appellant,

vs.
D. O. PLAZA ENTERPRISES, INC., defendant-appellee.

Ramon A. Gonzales for plaintiff-appellant.

Hermosisima, Maramara and Sol for defendant-appellee.

REYES, J.B.L., J.:

Direct appeal, on points of law, from an order of the Court of First Instance of Manila, in its Civil Case
No. 46762, modifying an earlier decision for the plaintiff by reducing the rate of interest on the sum
adjudged, and also the attorney's fees; and by ordering the plaintiff to pay damages to the defendant on
account of a preliminary attachment obtained by the former upon the latter's counterclaim.

The complaint in the aforesaid civil case was for collection of the sum of P43,017.32 representing
balance due on purchases of wire ropes, tractors and diesel parts made by the defendant-appellee, D. O.
Plaza Enterprises, Inc., from the plaintiff-appellant, Elpidio Javellana. The complaint prayed that the
defendant be ordered to pay the said sum of P43,017.32, with legal interest, plus attorney's fees in the
sum of P5,000.00; it also prayed for a writ of preliminary attachment.

Upon plaintiff's putting up a bond, the trial court, on 15 April 1961, issued a writ of attachment. On 20
May 1961, the defendant moved to discharge the attachment on the ground that it was improperly
issued. The motion was denied.

On 7 November 1961, the defendant filed its answer and counter-claimed for damages arising from the
attachment. The plaintiff answered and interposed a counterclaim to the counterclaim.

After some years, or on 27 April 1966, the defendant moved for the dissolution of the preliminary
attachment. Upon its filing a counterbond, the court, on 7 May 1966, dissolved the attachment.

On 3 November 1966, the plaintiff filed a motion to admit his amended complaint, which the court
granted on 12 November 1966. In this amended complaint, the plaintiff averred that of the sum of
P43,017.32 alleged in the original complaint, the defendant has paid P3,900.00, thereby leaving a
balance of P39,117.32 unpaid, but that, as indicated by invoices, defendant's purchases were payable
within thirty (30) days and were to bear interest of 12% per annum plus 25% attorney's fees. The
amended complaint accordingly prayed for the increased amounts. Defendant did not answer this
amended complaint.

After trial, the court, on 15 June 1967, rendered judgment. It found the following facts:

.... During the period from 23 July 1959 to 30 July 1960, defendant, in a series of transactions, purchased
from plaintiff wire ropes, tractors and diesel spare parts, (in) payment for which he issued several checks
amounting to P43,017.32, which, when presented to the bank, were dishonored for lack of funds.
Defendant substituted these checks with another set of checks for the same amount, but again, the
same were dishonored for lack of funds, as evidenced by Exhibits A to M, except for one check in the
amount of P3,900.00 as evidenced by Exhibit C. Thus, the principal obligation was reduced to
P39,117.32. At the time of the issuance of the said checks, the defendant never informed plaintiff that it
had funds to back them up. Plaintiff made demands to defendant for payment, but defendant pleaded
for time and liberalization of payment, which was rejected by the plaintiff. The transactions in question
were covered by invoices listed in Exhibit P, a sample of which is evidenced by Exhibit C, wherein said
transactions were for 30-day term, 12% interest per annum to be charged from date of invoice, and 25%
attorney's fees in case of litigation.

The defendant claims that there were other transactions between plaintiff and defendant involving the
amount of P196,828.58; that it had no intention not to pay the checks it issued upon presentment; and
that it suffered damages in the amount of P14,800.00 by reason of the attachment.

xxx xxx xxx

The counterclaim for damages arising from the attachment is without merit. The defendant was
manifestly in bad faith when it issued two sets of bouncing checks. Hence, the attachment was not
improper, contrary to defendant's claim.

The dispositive portion of the decision decreed:

WHEREFORE, judgment is hereby rendered for the plaintiff and against the defendant, ordering the
latter to pay the former the sum of P39,117.32 with interest at 12% per annum from 14 April 1961, the
date of the filing of the original complaint, until final payment, plus 25% of the principal indebtedness as
attorney's fees and costs of suit.

The counterclaim as well as the counterclaim to the counter claim are hereby dismissed for lack of
merit.

On 28 June 1967, the defendant moved to reconsider. Over the objection of the plaintiff, the court
issued an order dated 10 August 1967, now the subject of the present appeal, modifying the previous
decision, in the manner following:

WHEREFORE, the dispositive part of the decision rendered in this case is hereby modified as follows:

(a) By ordering the defendant to pay plaintiff the sum of P39,117.20 plus the legal interest therein
from the filing of the complaint until the amount is fully paid.
(b) Ordering the plaintiff to pay defendant the sum of P16,190.00, the amount of damages suffered
by the defendant on account of the preliminary attachment of the defendant; and

(c) By ordering the defendant to pay P5,000.00 as attorney's fees.

Without pronouncement as to costs.

Plaintiff-appellant assigns the following errors: the reduction of the attorney's fees, the reduction of the
interest, and the grant to the defendant of damages arising from the attachment.

The first two assigned errors are well taken. The court a quo reduced the interest stated in its previous
decision from 12% to mere legal interest and the attorney's fees from 25% to P5,000.00 on the basis of
estoppel, the ground therefor being that the reduced amounts were those alleged, hence admitted, by
the plaintiff in his original complaint. This was error. The original complaint was not formally offered in
evidence. Having been amended, the original complaint lost its character as a judicial admission, which
would have required no proof, and became merely an extrajudicial admission, the admissibility of which,
as evidence, requires its formal offer.

Pleadings superseded or amended disappear from the record as judicial admissions. However, any
statement contained therein may be considered as an extrajudicial admission, and as such, in order that
the court may take it into consideration, it should be offered formality in evidence. (5 Moran 58, citing
Lucido v. Calupitan, 27 Phil. 148; Bastida v. Menzi, 58 Phil. 188.)

Where amended pleadings have been filed, allegations in the original pleadings can have no effect,
unless formally offered in evidence. (Jones on Evidence, Sec. 273.)

Since the record does not show that the complaint (marked as Exhibit 115) was admitted in evidence,
there is no proof of estoppel on the part of the plaintiff on his allegations in the complaint. Not only this,
but since the stipulation for 12% interest on balance due and the 25% counsel fees appear on the
invoices themselves, appellee Plaza Enterprises cannot fairly claim that it was deceived or misled by the
pleadings of appellant. Even more, the original plea for P5,000.00 as attorney's fees is only contained in
the prayer of the original complaint, and it is a well established rule that the prayer for relief, although
part of the complaint, is no part of the cause of action and does not give character, the plaintiff being
entitled to as much relief as the facts warrant (Rosales vs. Reyes, 25 Phil. 495; Aguilar vs. Rubiato, 40
Phil. 470).

But the appellant's last assigned error is without merit. Although the defendant was found to be in bad
faith in issuing two (2) sets of bouncing checks in payment for its indebtedness, such bad faith was not
related to his having incurred the obligation in favor of the plaintiff but to defendant's failure to perform
said obligation. There was, therefore, no ground for the plaintiff to attach the defendant's properties on
the ground of fraud. That the plaintiff acted in good faith in securing attachment does not relieve him
from the damages that the defendant sustained by reason of the attachment because he, the plaintiff,
was, in the first place, not entitled to attachments, the element of malice was unnecessary (3 Moran,
Rules of Court, 19).

FOR THE FOREGOING REASONS, the appealed order is hereby reversed insofar as it reduced the amount
of attorney's fees and the interest on the principal sum adjudged in the original decision dated 15 June
1967; but the order is affirmed in all other respects. No costs.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ.,
concur.

G.R. No. L-11889 January 10, 1918

THE GOVERNMENT OF THE PHILIPPINE ISLANDS, applicant-appellee, vs. CARMEN MARTINEZ and
DOLORES MARTINEZ, claimants-appellants. JULIO SALVADOR, claimant-appellee.

C. Lozano for appellants.

Montinola and Montinola for appellee Salvador.
No appearance for the Government.

ARAULLO, J.:

In the cadastral proceedings instituted in the Court of Land Registration for the settlement of titles to
lands in the municipality of Iloilo, Province of Iloilo, Dolores and Carmen Martinez on May 11, 1914,
appeared claiming to be the owners of lots Nos. 873 and 450. They alleged in effect, after describing
said lots, that they were in possession thereof for about twenty-five years, having acquired them by
donation from Maria Sarlabus, and that their predecessors in interest had had possession of the same
for at least three years prior to said donation.chanroblesvirtualawlibrary chanrobles virtual law library

When the case came up for trial, Julio Salvador, through his attorney, entered his appearance and
claimed title to said lots, alleging that he was in actual possession thereof, and that his predecessors in
interest had been in possession before him for at least fourteen years.chanroblesvirtualawlibrary
chanrobles virtual law library

Trial having been held and the parties having adduced their evidence, judgment was rendered by the
Court of First Instance of Iloilo, which took the place of the Court of Land Registration, denying the claim
of Carmen and Dolores Martinez and adjudicating said lots to Julio Salvador, on the ground that, in the
opinion of the court, it was proved that the Martinez sisters had sold said land to one named Domenech
and that the latter, in return, sold it to Julio Salvador, who could, therefore, be considered owner of the
disputed lots.chanroblesvirtualawlibrary chanrobles virtual law library

Dolores and Carmen Martinez excepted to said judgment and filed a bill of exceptions after their motion
for new trial had been overruled, and they had excepted to the order overruling said motion. they now
allege that the trial court erred:chanrobles virtual law library

1. In admitting the copy of the record of a supposed document of sale presented by the oppositor Julio
Salvador, in support of his claim of title without the disappearance or loss of the original document
having been previously proved;chanrobles virtual law library

2. In not considering the evidence of the appellants as to his acts of possession and ownership on the lot
in question; and,chanrobles virtual law library

3. In adjudicating and decreeing the registration of said lot in favor of said

oppositor.chanroblesvirtualawlibrary chanrobles virtual law library
According to the testimony of Tiburcio Saez, witness of Julio Salvador, he was acquainted with the latter
for about twelve or fourteen years; Julio Salvador acquired said lots from Antonio Domenech, as
appeared in the document exhibited to him at the trial, dated March 14, 1912, and signed by him (the
witness) in the name, and at the request, of the vendor Domenech because the latter had a trembling
hand and a poor eyesight; the notary and two witnesses were present at the time of signing; said lots,
according to the document, consisted of three pieces, to wit, one acquired by Domenech from Anastasio
Montes and the other two from Dolores and Carmen Martinez who, because of certain difficulties he
had been in, sold them in a document acknowledged before the notary public, Mr. Yulo; he was not
presented when the transaction was effected, having only learned of it from the plaintiffs; he did not
know of any other possessor of said land but Domenech, during his lifetime, and Julio Salvador; after
Domenech's death Dolores Martinez told him that the lands did not belong to the former but to them,
and finally, Julio Salvador took possession of said lands at the time of the sale, a fact which he
afterwards knew from Salvador himself, for he was not personally present when the possession was
taken.chanroblesvirtualawlibrary chanrobles virtual law library

Juan Madrenas Soler, attorney in fact of Julio Salvador, who was away in Spain during the trial, testified:
That Julio Salvador gave him certain papers referring to the land in question and that he looked among
them for the document of the sale executed by the Martinez sisters in favor of Antonio Domenech but
did not find it; that the made investigations concerning said document, having interviewed My. Yulo,
because he remembered that when Salvador left for Spain he told the witness that the documents
concerning the case had been in Yulo's possession, who informed him that the Martinez sisters had
been looking for the same documents having asked him about them, to which he answered that he
remembered having returned those papers to Domenech and that he did not have them, not having
found them, when he had looked for them, but that, according to Mr. Yulo himself, a copy of them was
in some archive in Manila.chanroblesvirtualawlibrary chanrobles virtual law library

As the claimants Martinez denied having sold the aforesaid two lots to Antonio Domenech,, as stated by
the witness Saez, and having executed a document of sale of said lots in favor of Domenech, the
attorney for Julio Salvador, besides the document of sale of said lots executed by Antonio Domenech in
favor of Julio Salvador on March 14, 1912 (Exhibit 1), presented also a certified copy issued by the acting
registrar of deeds of Iloilo and dated May 13, 1914 (Exhibit 2). In referring to the registration of the
property consisting of the two lots in question, after mentioning the acquisition of said lots by Carmen
and Dolores Martinez by virtue of a donation inter vivos made to them of one of said lots by Maria
Sarlabus and of a grant of the other in their favor by Anastasio Montes, respectively, on September 19,
1889, and April 24, 1893, said certified copy stated that said Martinez sold the same lots, that is, the
property in the city, to Antonio Domenech de Toldra for the sum of one hundred fifty pesos, and that
the vendors acknowledged having received the price from the purchaser before the execution of the
contract. Said copy also contained all that was stated in the document of sale executed on January 9,
1900, before the notary public, Don Gregorio Yulo y Regalado, and presented in that registry at 9:30 a.
m. on April 23, 1900, according to entry No. 2, vol. 1 of the daybook. It further stated that in the same
entry there was a marginal note which read: "This property was sold too Mr. Julio Salvador y Miralles, as
appears from record No. 2 of this property No. . . . page . . . of vol. 6 of this book." And said acting
registrar, Roman Lacson, having appeared at the trial, indicated said registration in the book mentioned
in said certificate, and also stated that Exhibit 2 was a true and exact copy
thereof.chanroblesvirtualawlibrary chanrobles virtual law library
Said entry, that is, the certified copy already referred to (Exhibit 2), having been presented as evidence,
as already stated, the attorney of the Martinez claimants objected, alleging that it has not been
satisfactorily proved that the document of sale said to have been executed by them in favor of Antonio
Domenech was lots; that Julio Salvador did not say, nor was there any statement, made by him or his
attorney in fact, that the document was in his possession, and, finally, that the previous existence of
such document has not been proved nor had anybody seen it before its supposed loss. The court,
however, on the ground that Julio Salvador's counsel did all he could possibly do when he found himself
obliged to present said document, admitted said certified copy (Exhibit 2), the attorney for the
appellants having excepted to this ruling.chanroblesvirtualawlibrary chanrobles virtual law library

The oppositor or claimant Julio Salvador was under the obligation to present, as evidence of his
supposed title to the lots in question, the document of sale of the said two lots, which, accordingly to
the witness Saez, was executed by the Martinez sisters in favor of Antonio Domenech; for to prove said
title it was not sufficient for them to present, as they did, the document of sale of said lots executed by
said Domenech on March 14, 1912, in favor of Julio Salvador, in the execution of which, according to the
declaration of the same witness, Saez, he took part, signing in the name, and at the request, of the
vendor Domenech; but said certified copy of the record in the registry, Exhibit 2, in which mention is
made of the document, was presented by said oppositor, in view of the fact that he did not have said
document in his possession. Nevertheless Julio Salvador ought first to have proved the loss of said
original document and that the same was duly signed and only then could he have proved the contents-
thereof by means of the certified copy of the record, Exhibit 2, or by the statement therein contained of
that sale, according to the provisions of section 321 of the Code of Civil
Procedure.chanroblesvirtualawlibrary chanrobles virtual law library

The knowledge of the witness Juan Madrenas Soler attorney in fact of Salvador, concerning said
document of sale was obtained from Mr. Yulo who, according to said witness, had told him that the
documents referring to the land in question were again delivered by him to Mr. Domenech. Said witness
also testified that before the search for said document, he had no occasion to see it as he was not
interested; that he did not attempt to look for it after making the declaration he made in the municipal
building; that Julio Salvador himself, before leaving for Spain had not instructed him to look for said
papers; and finally, that when Salvador gave him power to represent him in all his business he only
recommended that the name of Antonio Domenech be changed with that of his
own.chanroblesvirtualawlibrary chanrobles virtual law library

As already stated, Tiburcio Saez only said that he knew that due to certain informations, Dolores and
Carmen Martinez had executed a document of sale in favor of Domenech before the notary public Mr.
Yulo, but that he did not see its execution, learning thereof only through statements made by the
Martinez sisters, which the latter denied while testifying at the trial.chanroblesvirtualawlibrary
chanrobles virtual law library

The oppositor Julio Salvador did not present as a witness the notary public, Mr. Yulo, before whom,
according to the witness Saez, Domenech executed said document of sale, in order that he might testify
on this point and corroborate the references made to him by the witnesses Madrenas and Saez and
especially by the first, with respect to the whereabouts of the document. No attempt appears to have
been made to present as witnesses said notary and those persons who must have seen the signing of
the document, nor was it shown that said document had been lost. Finally, it does not appear that Julio
Salvador or his lawyer or his attorney in fact, Madrenas, had made any effort to obtain a copy of said
document from the general archives in the City of Manila, where, according to the lawyer himself, it
could be secured. He, however, promised, after the introduction of evidence, to present it after looking
for it in the archives, which promise was made good, although the court said that he wound limit himself
to the evidence therefore introduced, for the trial having terminated on May 15, 1914, and the court
having rendered judgment on December 15, 1915, that is, one and one-half years afterwards, he had
had sufficient time within which to look for said document and ask for the admission thereof, in case it
should be found, before the final judgment appealed from was rendered.chanroblesvirtualawlibrary
chanrobles virtual law library

The loss of said document of sale which, it is said, had been executed by the Martinez sisters in favor of
Domenech not having been proved and no proof having been offered that said document was duly
executed and signed, all of this being due to an obvious lack of diligence on the part of the oppositor
himself, his lawyer and attorney in fact, the presentation of the certified copy of the registration, Exhibit
2, and its admission by the court as secondary and supplementary evidence of said document, was
improper and cannot serve as a basis for us to hold it proven, as the lower court did hold, that the
Martinez sisters had sold the land in question to Antonio Domenech and that having acquired it from
the latter, Julio Salvador, the oppositor, could be adjudged to be the owner of said disputed
lots.chanroblesvirtualawlibrary chanrobles virtual law library

The appellee, however, invoking section 299 of the Code of Civil Procedure, maintains that said certified
copy, Exhibit 2, issued by the acting registrar of deeds of Iloilo, was properly admitted as evidence in the
same manner that the original deed of sale of said lots said to have been executed by the Martinez sister
in favor of Antonio Domenech, which, copy being a public document, had the same effect as the
original.chanroblesvirtualawlibrary chanrobles virtual law library

Section 299 of the Code of Civil Procedure provides: "The written acts of record of the acts of the
sovereign authority, of official bodies and tribunals and of public officers, legislative, judicial, and
executive of the Philippine Islands, or of the United States, or of any States of the United States or of a
foreign country, and public records kept in the Philippine Islands of private writings are public writings. A
copy of a public writing, duly certified to be a true copy thereof, is admissible evidence in like cases and
in like effect as the original writing." The appellee understands that as the copy of a public writing duly
certified to be a true copy has the same effects as the original, according to section 299, such a copy, as
a public writing, is included in the exception of section 321 of the same Code, which provides that
secondary evidence of the contents of a document cannot be admitted without the requirement of said
section having been complied with, as already explained in the preceding
paragraphs.chanroblesvirtualawlibrary chanrobles virtual law library

The first observation that may be made against said argument, is that the certified copy issued by the
acting registrar of deeds of Iloilo, Exhibit 2, is not a true copy of the document of sale which is said to
have been executed by the Martinez sisters in favor of Antonio Domenech, but of the recital appearing
in the books of said registry with respect to the urban property, consisting of those two lots, which
recital is to the effect that there was presented in the office of the registrar at 9:30 a. m. on April 23,
1900, a document of sale, executed on January 9 of said year by Carmen and Dolores Martinez before
the notary, D. Gregorio Yulo y Regalado, in favor of Antonio Domenech, of said property or lot
composed of two parts, one acquired by said Martinez from Doña Maria Victoria Sarlabus by donation
inter vivos, according to the document of September 19, 1889, ratified before a notary of that province,
D. Andres Pastor Santana, and the other by a grant from D. Anastasio Montes, as evidenced by a private
document executed on April 24, 1893. On the margin of said entry it is stated that said lot was sold to
Julio Salvador. In short, the effect of the certified copy as evidence is that said document, in which the
facts already stated appear, was presented to the registrar of deeds on April 23, 1900. So that all that
was certified to by the registrar of deeds in the document, Exhibit 2, is that said recital, referring to the
document appears in the books of the registry. For this reason it is evident that as said certified copy
was not a copy of the original document it could not, unlike the original writing, be properly admitted as
evidence in the present case on the ground that it was a public document according to section 299.
Neither could said copy produce the same legal effect as the original. Such certification has the
character of a public document and is such indeed, according to said section 299 of the Code of Civil
Procedure, but is only effect is to show that said document was presented at the office of the registrar
of deeds of Iloilo, where the aforesaid statements appear. It does not, however, prove that said lots had
in fact been sold by the Martinez sisters to Antonio Domenech, or that the document presented was
true, duly executed or ratified before the notary, D. Gregorio Yulo, for the simple reason that said
document presented to the registrar might have been false and simulated, and the signatures appearing
thereon might not have been the authentic and legitimate signatures of the vendors, or of the notary
before whom it was ratified, or of the witnesses who appear in said document as eyewitnesses to the
signing thereof by the vendors.chanroblesvirtualawlibrary chanrobles virtual law library

It is true that section 299 already cited includes among public documents the public records of private
writings existing in the Philippine Islands; and this may very well give rise to the interpretation , which
the appellee seems to give it, that the entry in the books of the registry of Iloilo as to the presentation of
said document of conveyance executed by the Martinez sisters in favor of Domenech is a public record
of the same writing, and therefore the recital of said entry is a public writing. But in the first place it
must be taken into account that the entry made in the registry and mentioned in Exhibit 2 refers only to
the presentation of the writing at the office of the registrar; and as the Martinez sisters denied at the
trial having executed said document in favor of Domenech and sold the property therein described, and
the document itself not being literally transcribed in said entry or registry, and as it is neither proved
that in the filing of said document with the registrar the Martinez sisters took any part, said certified
copy cannot have the effect of proving the said sale took place, even considering said document as a
public writing. It was therefore necessary for the claimant Julio Salvador, in order to fully and sufficiently
prove his alleged title to that real property, to present the original document of said to have been
executed by the Martinez sisters in favor of Domenech, or a literal copy of the same, or a recital thereof
appearing in some authentic document. If he could not do so he should have proved its contents by
means of the recollection that a witness might have had thereof.chanroblesvirtualawlibrary chanrobles
virtual law library

The recital in the entry in the registry, a certified copy of which has been presented as Exhibit 2, by
counsel of Julio Salvador, cannot be held to have the effect of proving the contents of the documents
referred to, for the reason that the Martinez claimants have questioned and denied the authenticity of
said document which, according to the entry in the registry, was presented to the registrar on April 23,
1900. And, as already stated with respect to the recollection that a witness may have of said document,
none of the witnesses who testified for the oppositor, Salvador, affirmed having seen such document,
said witnesses having learned of it only by reference, as he himself stated, from the Martinez claimants
themselves, who denied even this fact.chanroblesvirtualawlibrary chanrobles virtual law library

But whether said entry in the registry be considered as a recital of said document in an authentic
writing, or whether it be held that some witness had some recollection of said document, this secondary
evidence of said document should not have been admitted by the court for the reason that the
oppositor, Julio Salvador, had not first complied with the provisions of section 321 of the Code of Civil
Procedure.
The best obtainable evidence should be adduced to prove every disputed fact, and a failure to produce
it, but an attempt instead to sustain the issue by inferior evidence, will authorize the inference that the
party does not furnish the best evidence because it would tend to defeat, instead of sustaining, the issue
of his part. In requiring the production of the best evidence applicable to each particular fact, it is meant
that no evidence shall be received which is merely substitutionary in its nature, so long as the original
evidence can be had. (Ruling Case Law, vol. 10, p. 903, par. 54, and cases therein cited.) chanrobles
virtual law library

Undoubtedly the best evidence of the contents of a written instrument consists in the actual production
of the instrument itself, and the general rule is that secondary evidence of its contents cannot be
admitted until the nonproduction of the original has been satisfactory accounted for. (Ruling Case Law,
vol. 10, p. 903, par. 55, and cases therein cited.) chanrobles virtual law library

Secondary evidence of the contents of writings if admitted on the theory that the original cannot be
produced by the party by whom the evidence is offered, within a reasonable time by the exercise of
reasonable diligence. And ordinarily secondary evidence is not admissible until the nonproduction of the
primary evidence has been sufficiently accounted for. (Ruling Case Law, vol. 10, p. 911, par. 66, and
cases therein cited.) chanrobles virtual law library

Under the earlier English decisions no degrees of secondary evidence are recognized. The American
courts, however, have asserted that secondary evidence, to be admissible, must be the best evidence
obtainable under the circumstances. . . . It is a rule of evidence, too ancient and too well understood to
require proof of its existence, that the original instrument is better evidence than a copy. Again,
whenever a copy of a record or document is itself made original or primary evidence, the rule is clear
and well settled that it must be a copy made directly from or compared with the original. If the first copy
be lost, or in the hands of the opposite party, so long as another may be obtained from the same source,
no ground can be laid for resorting to evidence of an inferior or secondary character. (Ruling Case Law,
vol. 10, p. 912, par. 68, and cases therein cited.) chanrobles virtual law library

Preliminary to the introduction of secondary evidence under the principle herein referred to, the
proponent must establish the former existence of the primary evidence, and its loss or destruction as
the case may be. . . . It has been held that the existence of a deed is sufficiently proved where there is a
preponderance of proof in its favor. (Ruling Case Law, vol, 10, p. 917, par. 75, and cases therein cited.)
chanrobles virtual law library

The contents of a lost instrument cannot be proved unless it appears that reasonable search has been
made in the place where the paper was last know to have been, and if not found there, that inquiry has
been made of the person last known to have had its custody. (Ruling Case Law, vol, 10, p. 917, par. 76,
and cases therein cited.) chanrobles virtual law library

In accordance with the rule set forth in the next preceding paragraph parol evidence of the contents of a
will is inadmissible, unless it is first shown that diligent and unavailing search has been made for the
original, by or at the request of the party interested, and in the place where it is most likely to be found.
. . . But to justify admission of secondary evidence of a deed, it is not necessary to prove its loss beyond
all possibility of mistake. A reasonable probability of its loss is sufficient; and this may be shown by a
bona fide and diligent search, fruitless made for it in places where it is likely to be found. (Ruling Case
Law, vol, 10, p. 918, par. 77, and cases therein cited.)
As the failure of the oppositor to present the original document in question was not accounted for; as it
is not proper to suppose that the original could not have been presented within a reasonable time if he
had exercised due diligence for he or his counsel had the means, opportunity and time to find the
original if it really existed; as no proof was adduced that said document had been lost, or destroyed, or
that proper search therefor was made in the general files of notarial documents in the City of Manila, or
that an attempt was made to secure a copy thereof if it existed in said files; as the notary, Gregorio Yulo,
a person well known in Iloilo, was not asked directly and clearly as to the whereabouts of said document
or some particular or data it in order to obtain from him some conclusive and categorical answer; as said
notary has not been presented at the trial to be examined on these points; and, lastly, as it was not
shown that the party interested in the presentation of said document who is Julio Salvador, had made a
diligent and proper, but fruitless, search for said document in any place where it could probably be
found - therefore the secondary evidence presented by the oppositor, consisting of the testimony of the
witnesses, Saez and Madrenas, and the certified copy issued by the registrar of deeds of Iloilo, Exhibit 2,
is of no value for the purpose intended and such evidence was improperly considered by the court in
reaching the conclusion that said Julio Salvador was the owner of the lots in
question.chanroblesvirtualawlibrary chanrobles virtual law library

But not only this - as stated in said certified copy of the registry, Exhibit 2, Carmen and Dolores Martinez
acquired said lots, one by donation inter vivos from Maria Sarlabus, made in a public document, and the
other by grant fro Anastasio Montes, evidenced by a private document. These documents being a part
of the title deeds of the lots, they ought to have been delivered by the Martinez sisters to Domenech;
and when the registration of said sale in the registry was asked, these documents should have been
presented by the latter, together with the deed of sale which is said to have been the notary Yulo on
January 9, 1900; and when they were returned to Domenech or to any other, the registrar ought to have
made at the foot of said documents, a note stating the fact of their presentation, together with the
document of April 23, 1900, as well as of the fact that they were properly noted in the registry; and,
finally, said documents ought to be in the possession of Domenech, and afterwards, when the lots were
sold to Julio Salvador, those documents should have been delivered by Domenech to the
latter.chanroblesvirtualawlibrary chanrobles virtual law library

Yet said documents were not in the possession of Julio Salvador, or his attorney in fact, but of Dolores
and Carmen Martinez, who presented them at the trial and were there marked as Exhibit A and B, for
the purpose of proving their title to said lots, and there appears no note whatever of the registrar to the
effect that they had been presented in the registry and that they had been noted in said office. This is
evident proof that really they were not presented to the registrar when the document of sale alleged to
have been executed on January 9, 1900, by the Martinez sisters in favor of Domenech, and ratified
before the notary public, Mr. Yulo, was presented by Domenech or his representative. Said document of
donation, Exhibit B, and that of grant, Exhibit A, being among the title deeds of said lots, it is strange
that in registering said sale the should have presented the said document only, the existence and
execution of which were denied by the Martinez sisters. There are therefore sufficient grounds to hold it
not proved that the latter sold said lots to Antonio Domenech, and, consequently, they could not have
transferred any title thereto to Julio Salvador.chanroblesvirtualawlibrary chanrobles virtual law library

On the other hand, the title of Carmen and Dolores Martinez to said lots, Nos. 873 and 450, which
constitute the property described in their claim and that of Julio Salvador, respectively, is recognized by
the latter, when he attempted to prove that they were sold by the former to Antonio Domenech, as well
as by the witnesses of said oppositor, Tiburcio Saez, when he stated that they were sold by said two
sister to Domenech; and this title has been confirmed by the documents already mentioned, Exhibits A
and B. The first of said documents states that on April 24, 1893, Anastasio Montes gratuitously ceded a
lot 9:20 meters wide and 11.80 meters long, bordering on Calle San Rafael, and bounded on the north
by the lot of Don Leon Yorac, while the document, Exhibit B, which is a public document executed on
September 29, 1869, and ratified before the notary public of Iloilo, Don Andres Pastor Santana, states
that Maria Victoria Sarlabus, in order to show affection to her intimate friends Carmen and Dolores
Martinez, gave them by way of a perfect and irrevocable donation inter vivos a lot belonging to her,
situated on said Calle San Rafael, Iloilo, being 6 brazas wide and 7 brazas long, and bounded on the right
by the lot of Mateo Catalva, on the left by that of Nicolas Batingui, and on the rear by that of Anastasio
Montes. These lots are numbered as 450 and 873 in the cadastral plans of the municipality of Iloilo and
constitute the lot now in question.chanroblesvirtualawlibrary chanrobles virtual law library

It appears from the evidence that the lot in question was not fenced and there was no building at all on
it, the witness Tiburcio Saez having declared that he knew that Domenech was in possession thereof and
after him Julio Salvador, which statement was contradicted by Dolores Martinez and her witness Manuel
Zerrudo. Dolores Martinez stated that during all the time that were in possession of the land, Julio
Salvador never laid any claim to them until lately, that is, about two or three years ago; that during the
lifetime of Domenech they paid the real estate taxes of the land, giving the sum of P6 to him every year,
and that they had no receipts because Domenech had a lot adjacent to theirs and he included it in the
receipt of the lot in question for they look their receipts at the same time; and that even after
Domenech's death, Julio Salvador paid for the taxes, and they did not attempt to pay for them because
Domenech had already talked to Mr. Campos, who told him that he paid for said taxes; that it seemed
that lately Salvador was in possession of the land; that during the lifetime of Domenech they had filled it
and that it was not true that Campos or Salvador had paid for the filling of the land. The witness Manuel
Zerrudo declared that he knew the land for about twenty years; that since he knew it, it has been in the
possession of Carmen and Dolores Martinez and at the date of the trial was still in their possession; that
Julio Salvador at no time possessed it; that he did not see Salvador fence it; and that he knew of the
possession of the Martinez sisters for he lived on Calle Del Rosario and the lot was next to that of his
teacher, Mr. Anastasio Montes; and, finally, he indicated, as an act of possession of the claimants, the
fact that they had put it in their name.chanroblesvirtualawlibrary chanrobles virtual law library

The attorney for the Bishop of Jaro, Jose Maria Arroyo, witness for the claimants, Martinez, stated that
the bishop, having attempted to acquire the lot in question, as it adjoins a lot of his, Domenech took him
to the land, stating that he wanted to sell it, but that the bishop did not put the sale through, because
he suspected that it belonged to the Martinez sisters; that he could not tell whose property it was; that
he did not know whether Domenech possessed it; that he did not know who collected the fruits of the
land, but he had information that it belonged to the Martinez sisters, although he had not seen the title
deeds, documents, or anything. He furthermore insisted that the purchase was not effected because of
the doubts that existed about the ownership of the land.chanroblesvirtualawlibrary chanrobles virtual
law library

Lastly, according to Dolores Martinez, a woman who like her sister Carmen, was already in the sixties,
Antonio Domenech lived in their house before the bombardment of the city (which must have taken
place in 1898) until 1912, when he died; that although Domenech had been a supervisor of laborers, he
no longer had that occupation when he came to live in their house; that during the first years he paid
the corresponding rent, but after the bombardment he ceased to pay rent and for his subsistence, which
was given him by them. Dolores Martinez and her sister also denied having sold the two lots of land in
question to Domenech or that they had received any sum from him in payment of said lot, or that they
had executed the document already reffered to. The former further stated that she did not make any
statement whatever to the witness Saez on the occasions referred to by him to the effect that they had
sold said lot to Domenech. She also declared that she had not received any sum of money from him for,
on the contrary, they had to support him.chanroblesvirtualawlibrary chanrobles virtual law library

As the title of the claimants Dolores and Carmen Martinez to the lots in question was proved, as it was
not proved that they had sold them to Antonio Domenech, and as Julio Salvador could not have
acquired said property from Antonio Domenech, these lots still belong to the Martinez sisters; and, on
the other hand, as it was established that they had been in possession of said lots since the acquisition
thereof; and as the possession which Julio Salvador might have exercised during the last years
(admitting the statements in the record to this effect) is not based upon any valid or legitimate title, it is
evident that the two sister are entitled to have their rights to the lots in question confirmed and to have
them registered in their name. It is, therefore, clear that the trial court erred in not so holding in the
judgment appealed from.chanroblesvirtualawlibrary chanrobles virtual law library

The judgment appealed from is therefore reversed and the claims of Julio Salvador is denied; and we
declare that the two lots Nos. 873 and 450 should be adjudicated to the appellants Carmen and Dolores
Martinez and be registered in their name. No special pronouncement is made as to costs. So
ordered.chanroblesvirtualawlibrary chanrobles virtual law library

Arellano, C.J., Johnson, Street, and Malcolm, JJ., concur.