G.R. No.

208749               November 26, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, 
vs.
ANECITO ESTIBAL y CALUNGSAG, Accused-Appellant.
DECISION
REYES, J.:

For automatic review is the Decision  dated March 25, 2013 of the Court of
1

Appeals (CA) in CA-G.R. CR-H.C. No. 05374, which upheld the Decision  dated 2

November 24, 2011 of the Regional Trial Court (RTC) of Pasig City (stationed in
Taguig City), Branch 69, in Criminal Case No. 139521, convicting Anecito Estibal
y Calungsag (accused-appellant) of the crime of Rape under Article 266-A(2), in
relation to Article 266-B(5)(1) of the Revised Penal Code, as amended by
Republic Act (R.A.) No. 8353  and in further relation to Section 5(a) of R.A. No.
3

8369.4

The falloof the RTC decision reads:

WHEREFORE, finding accused Anecito Estibal y Calungsag guilty beyond

reasonable doubt of Rape, he is hereby sentenced to suffer the penalty of
Reclusion Perpetua without eligibility for parole in lieu of the death penalty; and
to pay AAA  the amount of PhP 75,000.00 as civil indemnity; PhP 75,000.00 as
5

moral damages, and PhP 25,000.00 as exemplary damages.

SO ORDERED.  (Citation omitted)

6

Antecedent Facts

The accusatory portion of the Information  for rape against the accused-appellant
7

filed on February 6, 2009 reads:

That on or about the 5th day of February, 2009 in the City of Taguig, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused,
while taking advantage of his moral authority and ascendancy and with his
intention to gratify his sexual desire upon his daughter [AAA], by means of force,
violence and intimidation did then and there willfully, unlawfully and feloniously
succeed in having sexual intercourse with the latter against her will and consent,
the said crime having been attended by the qualifying circumstances of
relationship and minority, as the said accused being the natural father of the
victim, a thirteen (13)[-]year[-]old, a minor atthe time of the commission of the
crime, which is aggravated by the circumstances of abuse of superior strength
and dwelling, all to the damageand prejudice of the said victim [AAA].

Page 1 of 349
CONTRARY TO LAW. 8

The accused-appellant, 43 years old, pleaded not guilty upon arraignment on

March 9, 2009. But during the pre-trial, BBB, wife of the accused-appellant and
mother of AAA, the minor victim, disclaimed any further interest to pursue the
case. Her reasons were that she pitied the accused-appellant and, according to
her, AAA had already forgiven her father. But having entered the accused-
appellant’s plea, the trial court refused to entertain their desistance.
9

At the trial, four witnesses came forward to testify for the prosecution. The
testimony of the first witness, Dr. Jesille Baluyot (Dr. Baluyot) who conducted the
medicolegal examination on AAA, was stipulated by the prosecution and the
defense, as follows:

1. That she is a Police Chief Inspector of the PNP particularly assigned at

the PNP Crime Laboratory as Medico Legal Examiner;

2. That she was the one who conducted the medico-legal examination on
the minor victim on February 5, 2009;

3. That she reduced her examination into writing and issued the Initial
Medico Legal Report Case No. R09-288 which Anogenital findings are
diagnostic of previous blunt force or penetrating trauma (to the hymen);

4. And that she also issued other documents in relation to the

examination. 10

The parties also agreed to stipulate on the testimonies of Michael Estudillo

(Estudillo) and Ronillo Perlas (Perlas), members of the Barangay Security Force
(BSF) who arrested the accused-appellant as he was coming home from work at
6:00 p.m. on February 5, 2009, to wit:

1. That BSF Michael Estudillo and BSF Ronilo Perlas are members of the
Barangay Security Force x x x;

2. That in the evening of February5, 2009 while they were on duty at x x x,

the minor victim and her mother appeared at their office and reported that
the victim was molested or sexually abused by the accused; and that
based on this report, they proceeded to the house of the perpetrator;

Page 2 of 349
 3. That while on their way, they met the accused and informed him about
the complaint of the minor victim and eventually arrested him without the
corresponding warrant of arrest and brought to their office;

4. That based on the incident, they referred the case to the Taguig City
Police Station for proper disposition; and

5. That they have no personal knowledge as to the incident. 11

Concerning AAA and BBB, several subpoenas were sent to their address for the
taking of their testimonies, but they never appeared. On April 13, 2010, it was
reported to the court that they had moved out of their house, and subsequent
subpoenas were returned unserved. 12

The prosecution’s last witness, Police Officer 3 Fretzie S. Cobardo (PO3

Cobardo), was the officer assigned at the Philippine National Police (PNP)
Women and Children Protection Center of Taguig City. It was she who
investigated the above incident and took down the sworn statement of AAA late
in the evening of February 5, 2009. Her testimony was also stipulated, as follows:

1. that she is a member of the PNP assigned at the Women and Children
Protection Desk, Taguig City Police Station;

2. that she was the investigating officer at the time the accused was
brought to the police station;

3. that she personally encountered the private offended party and the
accused;

4. that she brought the private offended party to the PNP Crime Laboratory
for Genito Physical Examination;

5. that she was present at the time the private offended party executed an
affidavit complaint;

6. that she was the one who brought the private offended party and the
accused for inquest proceedings;

7. that she has no personal knowledge as to the incident which gave rise
to this case;

Page 3 of 349
 8. that Exhibit "A" was the same document executed by the mother of the
victim as well as the victim herself before her;

9. that Exhibit "G" was the same Medico Legal Report that was transmitted
to her by the PNP Crime Laboratory;

10. that she was the one who received the Initial Medico-Legal Report. 13

On clarificatory questioning by the court, PO3 Cobardo narrated how she was
trained to prepare for her assignment as desk officer at the PNP Women and
Children Protection Center; that during her investigation of AAA and BBB, they
were both crying; that without being asked leading questions and without being
coached by her mother, AAA, 13 years old and a first-year high school student,
revealed in detail how the accused-appellant abused her for several years and
how he raped her that morning of February 5, 2009; that AAA told that the first
time she was raped by her father was when she was in Grade III, but this was the
first time she was telling anyone about the rapes; that BBB told PO3 Cobardo
that she could not imagine how her husband could commit such an outrage
against their own daughter; that from her own observations of AAA’s demeanor,
PO3 Cobardo was convinced that she was telling the truth. 14

The accused-appellant’s defense consisted mainly of denial. From his testimony,

the court learned that the accused-appellant, his wife BBB and their two children,
AAA and CCC, livedin a one-room house in Taguig City; that he and his wife
were employed as security guards in Taguig City; that on February 4, 2009, his
wife was on night duty and came home the next morning; that on the night of the
alleged rape, he and his two children retired for the night at around midnight, and
thus, he could not have sexually abused his daughter AAA between 1:00 a.m.
and 2:00 a.m. on February 5, 2009; that he and his wife used to fight about her
brothers Romulo and Rey Santos, whom he now suspected of influencing AAA to
file the complaint for rape against him, although he treated themas his own
brothers; that he was arrested by the Barangay Tanodat 6:00 p.m. on February
5, 2009 as he was coming from work. 15

Relying on PO3 Cobardo’s testimony of what AAA narrated to her, the RTC
considered the spontaneity of the declarations made by AAA as confirmed by
PO3 Cobardoas part of the res gestae, and convicted the accused-appellant. The
court said:

Thus, the court considers the spontaneity of the declarations made by AAA as
confirmed by PO3 Cobardo. Moreover, there is nothing on record that would
compel the court to believe that said prosecution witness has improper motive to

Page 4 of 349
falsely testify against the accused-appellant. Accordingly, it shall uphold the
presumption of regularity in the performance of her duties. Further, the testimony
of PO3 Cobardo was corroborated by the findings of Dr. Jesille Baluyot of a
shallow healed lacerations at 4 and 8 o’clock and deep healed laceration at5
o’clock positions in the hymen of AAA which Anogenital findings are diagnostic of
previous blunt force or penetrating trauma.  (Citations omitted)
16

Below is the pertinent portion ofPO3 Cobardo’s testimony cited by the RTC:

COURT –

Some questions from the Court.

Q PO3 Cobardo[,] you were the one who investigated the minor victim in
this case?

A Yes[,] Your Honor.

Q Could you tell the Court what is the appearance of the victim at the time
of the investigation?

A At that time Your Honor the victim was together with her mother, they
were crying.

Q Both were crying?

A Yes[,] Your Honor.

Q When you conducted the investigation[,] the mother was present?

A Yes[,] Your Honor, the mother was present.

Q You were aware of course when you inquired the age of the minor?

A Yes[,] Your Honor.

Q When she narrated the incident[,] was she coached by the mother?

A No[,] Your Honor, the victim was not coached by the mother. It was the
victim who stated all the incident.

Page 5 of 349
Q Did you make, did you use leading questions in conducting, propounding
the questions?

A No[,] Your Honor.

Q How did you ask the victim? Was it in a question and answer where first
you will ask the victim to narrate the incident?

A Yes[,] Your Honor. First I asked the victim to narrate the incident.

Q And then you propounded question in the question and answer form?

A Yes[,] Your Honor.

Q After obtaining all the facts relative to the incident?

A Yes[,] Your Honor.

Q And you found out that, was that the first time that the incident happened
or several times already?

A During that interview[,] Your Honor[,] I found out that the victim was
sexually abused by her father several times when she was in Grade III.

Q You mentioned that the victim and her mother during your investigation
were both crying?

A Yes[,] Your Honor[.]

Q Did you inquire why?

A The mother told me that she could not imagine that her husband
molested their daughter.

Q How about the daughter? Did you inquire? Did you allow her some time
to rest?

A She was crying[,] Your Honor[,] since it was her first time to reveal the
incident.

Q So you asked her why she was crying?

Page 6 of 349
A Yes[,] Your Honor.

Q Because, I notice, actually I noticed in the preliminary question you

stated "hindi ako magagalit, kahit ano ang sasabihin mo sa akin,
naiintindihan mo ba lahat ng sinabi ko". It may be a preliminary question
because you have attended seminars on this. Is that right?

A Yes[,] Your Honor.

COURT –

So judging from the preliminary question[,] I know that you had undergone
seminars on how to conduct questions on child abuse cases.

WITNESS

Yes[,] Your Honor.

COURT –

Q Are you convinced that the victim is telling the truth?

A Yes[,] Your Honor, I am convinced.

Q Why are you convinced? Convinced based on your questions that you
propounded, why are you convinced?

A Because for a father and daughter relationship it’s not good, it’s not easy
to accused [sic] your father of sexual abuse.

Q So judging from the appearance of the minor she would be able to tell
the Court that she is telling the truth?

A Yes[,] Your Honor.

Q How many seminars have you attended relative to on how to conduct

examination on child abuse?

A Many times already[,] Your Honor.

xxxx 17

Page 7 of 349
Significantly, it appears from the sworn statement,  executed by AAA before PO3
18

Cobardo, that she first revealed her ordeal to her cousin DDD that same
afternoon of February 5, 2009. With DDD’s help, BBB confronted her daughter
AAA, who told her that the accused-appellant did not only rape her that morning,
but had sexually abused her several times since she was in Grade III.

Appeal to the CA

On appeal to the CA, the accused-appellant maintained that due to the absence
of AAA’s testimony, the prosecution failed to establish the circumstances proving
beyond reasonable doubt that he raped his daughter; that the testimonies of the
prosecution witnesses PO3 Cobardo, BSF Estudillo and BSF Perlas, not being
themselves victims or witnesses to the "startling occurrence" of rape, cannot
create the hearsay exception of res gestae [literally, "things done"]; and, that the
medical findings of Dr. Baluyot do not prove that he had carnal knowledge of
AAA but only that she had had sexual relations.

In its appellee’s brief, the Office of Solicitor General (OSG) asserted that
although AAA did not personally testify, and none of the prosecution witnesses
had any direct knowledge of the sexual molestation of AAA by the accused-
appellant, his guilt was fully established by circumstantial evidence. In particular,
the OSG argued that the testimony of PO3 Cobardo concerning what AAA
narrated to her during her investigation was part of the res gestae pursuant to
Rule 130 of the Rules of Court. The OSG reasoned that AAA had just undergone
a startling occurrence at the time she told PO3 Cobardo that she had been raped
by her father that morning, a statement which PO3 Cobardo found spontaneous
and credible; that the gap between the sexual assault and the time when AAA
made her narration to PO3 Cobardo was too short to permit fabrication by AAA of
such a serious accusation against her own father; and, that AAA made the
charge in the presence of her mother could only have lent credence to her claim.
Moreover, the claim of rape by AAA is corroborated by Dr. Baluyot’s finding that
she has genital lacerations, in contrast to the accused-appellant’s only defense of
a general and uncorroborated denial.

The appellate court agreed withthe RTC and the OSG that the testimonies of the
three prosecution witnesses, PO3 Cobardo, BSF Estudillo and BSF Perlas, form
part of the res gestae, although none of them was a participant, victim or
spectator to the crime. According to the CA, "they heard what [AAA] said when
she reported the sexual abuse committed against her by accused-appellant
Estibal."  To further quote the CA:
19

Page 8 of 349
Thus, in this case, even if prosecution witnesses BSF Estudillo, BSF Perlas and
PO3 Cobardo were not present during the startling occurrence experienced by
AAA, they heard what she said when she reported the sexual abuse committed
against her by accused-appellant Estibal. There is no merit to the argument of
accused-appellant Estibal that, since prosecution witnesses BSF Estudillo, BSF
Perlas and PO3 Cobardo were "neither participants or victims or spectators to
the crime of rape being charged against the accused-appellant" their testimonies
could not be considered as part of the res gestae.

The testimonies of said prosecution witnesses comply with the above-mentioned

requisites, viz., there is no question that the sexual abuse committed by accused-
appellant Estibal against her daughter AAA was a startling occurrence and a
traumatic experience, at that; she had no opportunity to contrive or devise
falsehood when she reported the crime to BSF Estudillo and BSF Perlas and
narrated the incident to PO3 Cobardo hours after the incident; and, the
statements she made was relative to her sexual abuse by accused-appellant
Estibal and its attending circumstances.

There might be an intervening period between the time the crime of rape was
committed and the first time it was reported by AAA to the prosecution witnesses.
However, said intervening period of less than twenty-four (24) hours is so short a
time for AAA to fully recover physically and emotionally from such a traumatic
and harrowing experience, considering her tender age of only thirteen (13) years
and the fact that her abuser is her own biological father.

Res gestae refers to statements made by the participants or the victims of, or the
spectators to, a crime immediately before, during, or after its commission. These
statements are a spontaneous reaction or utterance inspired by the excitement of
the occasion, without any opportunity for the declarant to fabricate a false
statement. An important consideration is whether there intervened, between the
occurrence and the statement, any circumstance calculated to divert the mind
and thus restore the mental balance of the declarant; and afford an opportunity
for deliberation.

Indeed, the statements made by AAA before BSF Estudillo, BSF Perlas and PO3
Cobardo were spontaneous and her utterances were inspired by the excitement
of the occasion, without any opportunity to fabricate a false statement.

There is, of course, no hard and fast rule by which spontaneity may be
determined although a number of factors have been considered, including, but
not always confined to: (1) the time that has lapsed between the occurrence of
the act or transaction and the making of the statement, (2) the place where the

Page 9 of 349
statement is made, (3) the condition of the declarant when the utterance is given,
(4) the presence or absence of intervening events between the occurrence and
the statement relative thereto, and (5) the nature and the circumstances of the
statement itself. The Supreme Court, in People v. Manhuyod, has explained the
import of the first four factors; thus: "x x x (C)ases are not uniform as to the
interval of time that should separate the occurrence of the startling event and the
making of the declaration. What is important is that the declarations were
voluntarily and spontaneously made ‘so nearly contemporaneous as to be in the
presence of the transaction which they illustrate or explain, and were made under
such circumstances as necessarily to exclude the ideas of design or
deliberation.’

"As to the second factor, it may be stressed that ‘a statement made, or an act
done, at a place some distance from the place where the principal transaction
occurred will not ordinarily possess such spontaneity as would render it
admissible.’

"Anent the third factor, ‘[a] statement will ordinarily be deemed spontaneous if, at
the time when it was made, the conditions of the declarant was such as to raise
an inference that the effect of the occurrence on his mind still continued, as
where he had just received a serious injury, was suffering severe pain, or was
under intense excitement. Conversely, a lack of spontaneity may be inferred from
the cool demeanor of declarant, his consciousness of the absence of all danger,
his delay in making a statement until witnesses can be procured, or from the fact
that he made a different statement prior to the one which is offered in evidence.’

"With regard to the fourth factor, what is to be considered is whether there

intervened between the event or transaction and the making of the statement
relative thereto, any circumstance calculated to divert the mind of the declarant
which would thus restore his mental balance and afford opportunity for
deliberation."  (Citations omitted)
20

Automatic review by the Supreme Court

Without the res gestae exception, the evidence of the prosecution would consist
mainly of hearsay statements by PO3 Cobardo, BSF Estudillo and BSF Perlas all
reiterating what AAA allegedly told them. The same question, whether res
gestaeas an exception to the hearsay rule must be appreciated from the factual
circumstances of the case, is now before this Court in this automatic review.

To pardon her father, AAA chose to ignore the trial court’s subpoenas to testify in
her rape complaint, thus leaving missing a vital component in the prosecution’s

Page 10 of 349
case, her eyewitness account. But in itself, her pardon would not have worked
the dismissal of the rape case since it was given after the complaint was filed in
court.

AAA never appeared at the trial proper despite several subpoenas for her to
testify, and subsequent subpoenas could not be served after her family moved to
a new but unknown address on April 13, 2010. Recall that at the pre-trial, BBB
told the court that she was no longer interested in pursuing the case against the
accused-appellant since her daughter had already pardoned him. It has,
however, been held that even if it is construed as a pardon, AAA’s desistance is
not by itself a ground to dismiss the complaint for rape against the accused-
appellant once the complaint has been instituted in court. 21

In People v. Bonaagua,  the accused tried to invoke the affidavit of desistance

22

executed by the minor victim’smother stating that they would no longer pursue
the rape cases against him. But the high court pointed out that since R.A. No.
8353, or the Anti-Rape Law, took effect in 1997, rape is no longer considered a
crime against chastity. Having been reclassified as a crime against persons, it is
no longer considered a private crime, or one which cannot be prosecuted except
upon a complaint filed by the aggrieved party. Thus, pardon by the offended
party of the offender will not extinguish his criminal liability.

"As a rule, a recantation or an affidavit of desistance is viewed with suspicion and

reservation. Jurisprudence has invariably regarded such affidavit as exceedingly
unreliable, because it can easily be secured from a poor and ignorant witness,
usually through intimidation or for monetary consideration. Moreover, there is
always the probability that it would later on be repudiated, and criminal
prosecution would thus be interminable." 23

The gravity of the crime of rape and its imposable penalty, vis-á-vis the ease with
which a charge of rape can be made, compels the Supreme Court to conduct a
thorough review of rape every conviction.

A charge of rape by its very nature often must be resolved by giving primordial
consideration to the credibility of the victim’s testimony.  Because conviction may
24

rest solely thereon, the victim’s testimony must be credible, natural, convincing,
and consistent with human nature and the normal course of things,  it must be
25

scrutinized with utmost caution, and unavoidably, the victim’s credibility must be
put on trial as well.
26

Page 11 of 349
But if for some reason the complainant fails or refuses to testify, as in this case,
then the court must consider the adequacy of the circumstantial evidence
established by the prosecution. In People v. Canlas,  the Court said:
27

Where the court relies solely on circumstantial evidence, the combined effect of
the pieces of circumstantial evidence must inexorably lead to the conclusion that
the accused is guilty beyond reasonable doubt. Conviction must rest on nothing
less than moral certainty, whether it proceeds from direct or circumstantial
evidence. 28

xxxx

x x x Circumstantial evidence is that evidence which proves a fact or series of

facts from which the facts in issue may be established by inference. It is founded
on experience, observed facts and coincidences establishing a connection
between the known and proven facts and the facts sought to be proved.
Conviction may be warranted on the basis of circumstantial evidence provided
that: (1) there is more than one circumstance; (2) the facts from which the
inferences are derived are proven; and (3) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt. With
respect to the third requisite, it is essential that the circumstantial evidence
presented must constitute an unbroken chain which leads one to a fair and
reasonable conclusion pointing to the accused, to the exclusion of others, as the
guilty person.  (Citations omitted)
29

The Court is called upon to review the verdict of conviction below, keeping in
mind the following principles as guidance: (1) an accusation for rape can be
made with facility, while the accusation is difficult to prove, it is even more difficult
for the accused, albeit innocent, to disprove; (2) considering that, in the nature of
things, only two persons are usually involved in the crime of rape, the testimony
of the complainant must be scrutinized with extreme care; and (3) the evidence
for the prosecution must succeed or fail on its own merits, and cannot be allowed
to derive strength from the weakness of the evidence for the defense. 30

In essence, the res gestaeexception to the hearsay rule provides that the
declarations must have been "voluntarily and spontaneously made so nearly
contemporaneous as to be in the presence of the transaction which they illustrate
and explain, and weremade under such circumstances as necessarily to exclude
the idea of design or deliberation."

Section 36 of Rule 130 of the Rules of Court provides that "a witness can testify
only to those facts which he knows of his personal knowledge; that is, which are

Page 12 of 349
derived from his own perception, except as otherwise provided in these rules."
Res gestae, one of eleven (11) exceptions to the hearsay rule, is found in
Section 42 of Rule 130, thus:

Sec. 42. Part of res gestae. – Statements made by a person while a startling
occurrence is taking place orimmediately prior or subsequent thereto with respect
to the circumstances thereof, may be given in evidence as part of the res gestae.
So, also, statements accompanying an equivocal act material to the issue, and
giving it a legal significance may be received as part of the res gestae.

In People v. Ner,  this Court elaborated on Section 36 of Rule 130 as follows:

31

[T]hat declarations which are the natural emanations or outgrowths of the act or
occurrence in litigation, although not precisely concurrent in point of time, if they
were yet voluntarily and spontaneously madeso nearly contemporaneous as to
be in the presence of the transaction which they illustrate and explain, and
weremade under such circumstances as necessarily to exclude the idea of
design or deliberation, must, upon the clearest principles of justice, be admissible
as part of the act or transaction itself.  (Italics in the original)
32

The Court enumerated three essential requisites for the admissibility of a given
statement as part of res gestae, to wit:

All that is required for the admissibility of a given statement as part of res
gestae,is that it be made under the influence of a startling event witnessed by the
person who made the declaration before he had time to think and make up a
story, or to concoct or contrive a falsehood, or to fabricate an account, and
without any undue influence in obtaining it, aside from referring to the event in
question or its immediate attending circum[s]tances.  (Citations omitted)
33

There are then three essential requisites to admit evidence as part of the res
gestae, namely: (1) that the principal act, the res gestae, be a startling
occurrence; (2) the statements were made before the declarant had the time to
contrive or devise a falsehood; and (3) that the statements must concern the
occurrence in question and its immediate attending circumstances. 34

In People v. Dianos,  the Court acknowledged that there are no hard and fast
35

rules in determining the spontaneity of a declaration, but at least five factors have
been considered:

By res gestae, exclamations and statements made by either the participants,

victims, or spectators to a crime, immediately before, during or immediately after

Page 13 of 349
the commission of the crime, when the circumstances are such that the
statements constitute nothing but spontaneous reaction or utterance inspired by
the excitement of the occasion there being no opportunity for the declarant to
deliberate and to fabricate a false statement become admissible in evidence
against the otherwise hearsay rule of inadmissibility. x x x.

There is, of course, no hard and fast rule by which spontaneity may be
determined although a number of factors have been considered, including, but
not always confined to, (1) the time that has lapsed between the occurrence of
the act or transaction and the making of the statement, (2) the place where the
statement is made, (3) the condition of the declarant when the utterance is given,
(4) the presence or absence of intervening events between the occurrence and
the statement relative thereto, and (5) the nature and the circumstances of the
statement itself. x x x.  (Citations omitted and italics in the original)
36

In People v. Jorolan,  the Court emphasized that there must be no intervening

37

circumstances between the res gestae occurrence and the time the statement
was made ascould have afforded the declarant an opportunity for deliberation or
reflection; in other words, the statement was unreflected and instinctive:

An important consideration is whether there intervened between the occurrence

and the statement any circumstance calculated to divert the mind of the
declarant, and thus restore his mental balance and afford opportunity for
deliberation. His statement then cannot be regarded as unreflected and
instinctive, and isnot admissible as part of the res gestae. An example is where
he had been talking about matters other than the occurrence in question or
directed his attention to other matters.  (Citation omitted and emphasis ours)
38

In People v. Salafranca,  the Court cited two tests in applying the res gestaerule:
39

a) the act, declaration or exclamation is so intimately interwoven or connected

with the principal fact orevent that it characterizes as to be regarded as a part of
the transaction itself; and b) the said evidence clearly negatives any
premeditation or purpose to manufacture testimony.

The term res gestae has been defined as "those circumstances which are the
undesigned incidents of a particular litigated act and which are admissible when
illustrative of such act." In a general way, res gestae refers to the circumstances,
facts, and declarations that grow out of the main fact and serve to illustrate its
character and are so spontaneous and contemporaneous with the main fact asto
exclude the idea of deliberation and fabrication. The rule on res gestae
encompasses the exclamations and statements made by either the participants,
victims, or spectators to a crime immediately before, during, or immediately after

Page 14 of 349
the commission of the crime when the circumstances are such that the
statements were made as a spontaneous reaction or utterance inspired by the
excitement of the occasion and there was no opportunity for the declarant to
deliberate and to fabricate a false statement. The test of admissibility of evidence
as a part of the res gestaeis, therefore, whether the act, declaration, or
exclamation is so intimately interwoven or connected with the principal fact or
event that it characterizes as to be regarded as a part of the transaction itself,
and also whether it clearly negatives any premeditation or purpose to
manufacture testimony. (Citations omitted, emphasis ours and italics in the
40

original)

By way of illustration, in People v. Villarama,  the 4-year-old rape victim did not
41

testify, but the accused, an uncle of the victim, was convicted on the basis of
what the child told her mother. The Court said:

The critical factor is the ability or chance to invent a story of rape. At her age, the
victim could not havehad the sophistication, let alone the malice, to tell her
mother that her uncle made her lie down, took off her panties and inserted his
penis inside her vagina.

The shock of an unwelcome genital penetration on a woman is unimaginable,

more so to a four-year-old child. Such a brutal experience constituted
unspeakable trauma. The fact that Elizabeth was still crying when her parents
arrived reinforces the conclusion that she was still in a traumatic state when she
made the statements pointing to appellant.

xxxx

x x x [I]n Contreras, the victim’s statement that she had been sexually molested
by the accused was not received under the res gestae exception to the hearsay
rule, because her statement did not refer to the incident witnessed by Nelene but
to a general pattern of molestation of her and her companions by the accused. In
contrast, Elizabeth’s declaration to her mother regarding the then just concluded
assault were so full of details specific to the incident that there could be no doubt
she was referring to the same incident witnessed by Ricardo Tumulak. 42

In People v. Velasquez,  the 2-year-old rape victim told her mother the following:
43

a) "Si Tatang kakayan na ku pu." ("Tatang has been doing something to me.");
and b) "I-tatang kasi, kinayi ne pu ing pekpek ku kaya masakit ya." ("Because
Tatang has been doing something to my private part, that is why it hurts.") The
girl then showed her mother her private part, which was swollen and oozing with

Page 15 of 349
pus, and then she gestured by slightly opening or raising her right foot, and using
her right finger, to show what the accused had done to it.  The Court ruled:
44

We hold, therefore, that Aira’s statements and acts constitute res gestae, as it
was made immediately subsequent to a startling occurrence, uttered shortly
thereafter by her with spontaneity, without prior opportunity to contrive the same.
Regail’s account of Aira’s words and, more importantly, Aira’s gestures,
constitutes independently relevant statements distinct from hearsay and
admissible not as to the veracity thereof but to the fact that they had been thus
uttered.

Under the doctrine of independently relevant statements, regardless of their truth

or falsity, the fact that such statements have been made is relevant. The hearsay
rule does not apply, and the statements are admissible as evidence. Evidence as
to the making of such statement is not secondary but primary, for the statement
itself may constitute a fact in issue or be circumstantially relevant as to the
existence of such a fact.  (Citation omitted)
45

In People v. Lupac,  the Court accepted as part of res gestae the 10-year-old
46

victim’s denunciation ofher uncle to a neighbor whom she met soon after she
managed to get away from her uncle after the rape, uttering the words "hindot"
and "inano ako ni Kuya Ega." 47

In People v. Moreno,  shortly after the three accused left the house where the
48

complaining victims workedas maids, the maids told their employers, who had
just arrived, that they had been raped. The employers testified in court on these
statements. The Court held that the maids’ statements were part of res gestae
since they were spontaneously made as soon as the victims had opportunity to
make them without threat to their lives. The Court said:

This exception is based on the belief that such statements are trustworthy
because made instinctively, "while the declarant’s mental powers for deliberation
are controlled and stilled by the shocking influence of a startling occurrence, so
that all his utterances at the time are the reflex products of immediate sensual
impressions, unaided by retrospective mental action." Said natural and
spontaneous utterances are perceived to be more convincing than the testimony
of the same person on the witness stand.  (Citations omitted)
49

But in People v. Contreras,  the accused was acquitted in one of several

50

statutory rape charges because, among other things, the prosecution failed to
present the victim, a 6-year-old girl, and the court found that her alleged res
gestae statement referred not to the incident or circumstance testified to by the

Page 16 of 349
witness but rather to a general patternof molestation which she and her
companions had endured for some time already.

AAA’s statements to the barangay tanodand the police do not qualify as part
ofres gestae in view of the missing element of spontaneity and the lapse of an
appreciable time between the rape and the declarations which afforded her
sufficient opportunity for reflection.

In People v. Manhuyod, Jr.,  the Court stressed that in appreciating res

51

gestaethe element of spontaneity is critical. Although it was acknowledged that

there is no hard and fast rule to establish it, the Court cited a number of factors to
consider, already mentioned in Dianos.The review of the facts below constrains
this Court to take a view opposite that of the RTC and the CA.

It is of particular significance to note that in her sworn statement to the police,

AAA admitted that she first revealed her ordeal of sexual abuse to her cousin
DDD in the afternoon of February 5, 2009, although her mother BBB had
returned from her overnight guard duty that morning. Shocked by what AAA told
him, DDD relayed to BBB "na may problema [si AAA]." BBB thus confronted her,
and AAA in her own words narrated that, "kaya kinausap na po ako ni Mama
kung ano ang problema ko kaya sinabi ko na po ang ginawa sa akin ni Papa ko
po kaya nalaman na lahat ni Mama ang panggagahasa sa akin ni Papa." 52

After an anguished silence of five years, finally AAA found the courage to reveal
to her mother her heart-rending saga of sexual abuse by her own father.
Emboldened by her cousin DDD’s moral support, AAA told her mother that she
had been hiding her dark secret since Grade III. But as soon as BBB learned,
events quickly took their logical course. With BBB now leading the way, BBB and
AAA sought the help of the barangay tanodthat same day between 5:00 p.m. and
6:00 p.m. to have the accused-appellant arrested. At around 6:00 p.m., they were
able to arrest him as he was coming home. Later that night, AAA accompanied
by BBB gave her statement to PO3 Cobardo of the PNP women’s desk.

AAA’s revelation to DDD and BBB set off an inexorable chain of events that led
to the arrest of the accused-appellant. There is no doubt, however, that there
was nothing spontaneous, unreflected or instinctive about the declarations which
AAA made to the barangay tanodand later that night to the police. Her
statements werein fact a re-telling of what she had already confessed to her
mother earlier that afternoon; this time however, her story to the tanods and the
police was in clear, conscious pursuit of a newly formed resolve, exhorted by her
mother, to see her father finally exposed and put behind bars. AAA made her
declarations to the authorities precisely because she was seeking their help to

Page 17 of 349
punish the accused-appellant. There was then nothing spontaneous about her
so-called res gestaenarrations, even as it is remarkable to note that while AAA
was giving her said statements to the police, her father was already being held in
detention, and the investigation was conducted exactly to determine if there was
a basis to hold him for trial for rape.

Res gestae speaks of a quick continuum of related happenings, starting with the
occurrence of a startling event which triggered it and including any spontaneous
declaration made by a witness, participant or spectator relative to the said
occurrence. The cases thisCourt has cited invariably reiterate that the statement
must be an unreflected reaction of the declarant, undesigned and free of
deliberation. In other words, the declarant is spontaneously moved merely to
express his instinctive reaction concerning the startling occurrence, and not to
pursue a purpose or design already formed in his mind. In People v.
Sanchez,  the Court be labored to explain that startling events "speak for
53

themselves, giving out their fullest meaning through the unprompted language of
the participants:"
54

Res gestae means the "things done." It "refers to those exclamations and
statements made by either the participants, victims, or spectators to a crime
immediately before, during, or immediately after the commission of the crime,
when the circumstances are such that the statements were made as a
spontaneous reaction or utterance inspired by the excitement of the occasion
and there was no opportunity for the declarant to deliberate and to fabricate a
false statement." A spontaneous exclamation is defined as "a statement or
exclamation made immediately after some exciting occasion by a participant or
spectator and asserting the circumstances of that occasion as it isobserved by
him. The admissibility of such exclamation is based on our experience that,
under certain external circumstances of physical or mental shock, a stress of
nervous excitement may be produced in a spectator which stills the reflective
faculties and removes their control, so that the utterance which then occurs is a
spontaneous and sincere response to the actual sensations and perceptions
already produced by the external shock. Since this utterance is made under the
immediate and uncontrolled domination of the senses, rather than reason and
reflection, and during the brief period when consideration of self-interest could
not have been fully brought to bear,’ the utterance may be taken as expressing
the real belief of the speaker as to the facts just observed by him." In a manner of
speaking, the spontaneity of the declaration is such that the declaration itself may
be regarded as the event speaking through the declarant ratherthan the
declarant speaking for himself. Or, stated differently, "x x x the events speak for
themselves, giving out their fullest meaning through the unprompted language of

Page 18 of 349
the participants. The spontaneous character of the language is assumed to
preclude the probability ofits premeditation or fabrication. Its utterance on the
spur of the moment is regarded, with a good dealof reason, as a guarantee of its
truth.  (Citations omitted)
55

The RTC and the CA held that the inculpatory statements of AAA to the
barangay tanodand the police are part of the res gestae occurrence of the rape.
This is error. It is obvious that AAA had by then undergone a serious deliberation,
prodded by her mother, whose own outrage as the betrayed wife and grieving
mother so emboldened AAA that she finally resolved to emerge from her fear of
her father. Here then lies the crux of the matter: AAA had clearly ceased to act
unthinkingly under the immediate influence of her shocking rape by her father,
and was now led by another powerful compulsion, a new-found resolve to punish
her father.

Hearsay evidence is accorded no probative value for the reason that the original
declarant was not placed under oath or affirmation, nor subjected to cross-
examination by the defense, except in a few instances as where the statement is
considered part of the res gestae.

This Court has a situation where the incriminatory statements allegedly made by
AAA were conveyed to the trial court not by AAA herself but by PO3 Cobardo,
BSF Estudillo and BSF Perlas. In particular, PO3 Cobardo made a summation of
what she claims was AAA’s narration of her ordeal, along with her own
observations of her demeanor during the investigation. But unless the
prosecution succeeded in invoking res gestae, their testimonies must be
dismissed as hearsay, since AAA’s statements were not subjected to cross-
examination consistent with the constitutional right of the accused-appellant to
confront the evidence against him.

Hearsay testimony is devoid of probative value, and unless it is part of res

gestae, the appealed decision runs contrary to the well-settled rule against
admitting hearsay evidence, aptly described as "evidence not of what the witness
knows himself but of what he has heard from others."  The hearsay rule puts in
56

issue the trustworthiness and reliability of hearsay evidence, since the statement
testified to was not given under oath or solemn affirmation, and more
compellingly, the declarant was not subjected to cross examination by the
opposing party to testhis perception, memory, veracity and articulateness, on
whose reliability the entire worth of the out-of-court statement depends.  It is an
57

immemorial rule that a witness can testify only as to his own personal perception
or knowledge of the actual facts or events. His testimony cannot be proof as to
the truth of what he learned or heard from others. But equally important, Section
58

Page 19 of 349
14(2) of the Bill of Rights guarantees that "[i]n all criminal prosecutions, the
accused shall x x x enjoy the right x x x to meet the witnesses face to face x x x."
By allowing the accused to test the perception, memory, and veracity of the
witness, the trial court is able to weigh the trustworthiness and reliability of his
testimony. There is no gainsaying that the right to confront a witness applies with
particular urgency in criminal proceedings, for at stake is a man’s personal
liberty, universally cherished among all human rights.

In Patula v. People,  the Court rendered a helpful disquisition on hearsay

59

evidence, why it must be rejected and treated as inadmissible, and how it can be
avoided:

To elucidate why the Prosecution’s hearsay evidence was unreliable and

untrustworthy, and thus devoid of probative value, reference is made to Section
36 of Rule 130, Rules of Court, a rule that states that a witness can testify only to
those facts that she knows of her personal knowledge; that is, which are derived
from her own perception, except as otherwise provided in the Rules of Court. The
personal knowledge of a witness isa substantive prerequisite for accepting
testimonial evidence that establishes the truth of a disputed fact. A witness bereft
of personal knowledge of the disputed fact cannot be called upon for that
purpose because her testimony derives its value not from the credit accorded to
her as a witness presently testifying but from the veracity and competency of the
extra judicial source of her information.

In case a witness is permitted to testify based on what she has heard another
person say about the facts in dispute, the person from whom the witness derived
the information on the facts in dispute is not in court and under oathto be
examined and cross-examined. The weight of such testimony then depends not
upon the veracity of the witness but upon the veracity of the other person giving
the information to the witness without oath. The information cannot be tested
because the declarant is not standing in court as a witness and cannot, therefore,
be cross-examined.

It is apparent, too, thata person who relates a hearsay is not obliged to enter into
any particular, to answer any question, to solve any difficulties, to reconcile any
contradictions, to explain any obscurities, to remove any ambiguities; and that
she entrenches herself in the simple assertion that she was told so, and leaves
the burden entirely upon the dead or absent author. Thus, the rule against
hearsay testimony rests mainly on the ground that there was no opportunity to
cross-examine the declarant. The testimony may have been given under oath
and before a court of justice, but if it is offered against a party who is afforded no
opportunity to cross-examine the witness, it is hearsay just the same.

Page 20 of 349
Moreover, the theory of the hearsay rule is that when a human utterance is
offered as evidence of the truth of the fact asserted, the credit of the assertor
becomes the basis of inference, and, therefore, the assertion can be received as
evidence only whenmade on the witness stand, subject to the test of cross-
examination. However, if an extrajudicial utterance is offered, not as an assertion
to prove the matter asserted but without reference to the truth of the matter
asserted, the hearsay rule does not apply. For example, in a slander case, if a
prosecution witness testifies that he heard the accused say that the complainant
was a thief, this testimony is admissible not to prove that the complainant was
really a thief, but merely to show that the accused uttered those words. This kind
of utterance is hearsay in character but is not legal hearsay. The distinction is,
therefore, between (a)the fact that the statement was made, to which the hearsay
rule does not apply, and (b)the truth of the facts asserted in the statement, to
which the hearsay rule applies.

Section 36, Rule 130 of the Rules of Court is understandably not the only rule
that explains why testimony that is hearsay should be excluded from
consideration. Excluding hearsay also aims to preserve the right of the opposing
party to cross-examine the original declarant claiming to have a direct knowledge
of the transaction or occurrence. If hearsay is allowed, the right stands tobe
denied because the declarant is not in court. It is then to be stressed that the
right to cross-examine the adverse party’s witness, being the only means of
testing the credibility of witnesses and their testimonies, is essential to the
administration of justice.

To address the problem of controlling inadmissible hearsay as evidence to

establish the truth in a dispute while also safeguarding a party’s right to cross-
examine her adversary’s witness, the Rules of Court offers two solutions. The
first solution is to require that allthe witnesses in a judicial trial or hearing be
examined only in court under oath or affirmation. Section 1, Rule 132 of the
Rules of Courtformalizes this solution, viz.:

"Section 1. Examination to be done in open court.– The examination of witnesses

presented in a trial or hearing shall be done in open court, and under oath or
affirmation. Unless the witness is incapacitated to speak, or the question calls for
a different mode ofanswer, the answers of the witness shall be given orally."

The second solution is to require that allwitnesses be subject to the cross-

examination by the adverse party. Section 6, Rule 132 of the Rules of Court
ensures this solution thusly:

Page 21 of 349
"Section 6. Cross-examination; its purpose and extent.—Upon the termination of
the direct examination, the witness may be cross-examined by the adverse party
as to any matters stated in the direct examination, or connected therewith, with
sufficient fullness and freedom to test his accuracy and truthfulness and freedom
from interest or bias, or the reverse, and to elicit all important facts bearing upon
the issue."

Although the second solution traces its existence to a Constitutional precept

relevant to criminal cases, i.e., Section 14, (2), Article III, of the 1987
Constitution, which guarantees that: "In all criminal prosecutions, the accused
shall x x x enjoy the right x x x to meet the witnesses face to face x x x," the rule
requiring the cross-examination by the adverse party equally applies to non-
criminal proceedings.

We thus stress that the rule excluding hearsay as evidence is based upon
serious concerns about the trustworthiness and reliability of hearsay evidence
due to its not being given under oath or solemn affirmation and due to its not
being subjected to cross-examination by the opposing counsel to test the
perception, memory, veracity and articulateness of the out-of-court declarant or
actor upon whose reliability the worth of the out of-court statement
depends.  (Citations omitted, emphasis ours and italics in the original)
60

When inculpatory facts are susceptible of two or more interpretations, one of

which is consistent with the innocence of the accused, the evidence does not
fulfill or hurdle the test of moral certainty required for conviction.

It is well-settled, to the pointof being elementary, that when inculpatory facts are
susceptible to two or more interpretations, one of which is consistent with the
innocence of the accused, the evidence does not fulfill or hurdle the test of moral
certainty required for conviction.  A forced application of the res gestae exception
61

below results if the Court says that AAA’s incriminatory statements were
spontaneous and thus part of a startling occurrence. It produces an outright
denial of the right of the accused-appellant to be presumed innocent unless
proven guilty, not to mention that he was also denied his right to confront the
complainant. As the Court held in People v. Ganguso: 62

An accused has in his favor the presumption of innocence which the Bill of Rights
guarantees.  Unless his guilt is shown beyond reasonable doubt, he must be
1âwphi1

acquitted. This reasonable doubt standard is demanded by the due process

clause of the Constitution which protects the accused from conviction except
upon proof beyond reasonable doubt of every fact necessary to constitute the
crime with which he is charged. The burden of proof is on the prosecution, and

Page 22 of 349
unless it discharges that burden the accused need not even offer evidence in his
behalf, and he would be entitled to an acquittal. Proof beyond reasonable doubt
does not, of course, mean such degree of proof as excluding the possibility of
error, produces absolute certainty. Moral certainty only is required, or that degree
of proof which produces conviction in an unprejudiced mind. The conscience
must be satisfied that the accused is responsible for the offense
charged.  (Citations omitted)
63

This Court’s views are not a condonation of the bestiality of the accused-
appellant but only indicate that there is reasonable doubt as to his guilt entitling
him to acquittal. As the Court stated in People v. Ladrillo:
64

Rape is a very emotional word, and the natural human reactions to it are
categorical: sympathy for the victim and admiration for her in publicly seeking
retribution for her outrageous misfortune, and condemnation of the rapist.
However, being interpreters of the law and dispensers of justice, judges must
look at a rape charge without those proclivities and deal with it withextreme
caution and circumspection. Judges must free themselves of the natural
tendency to be overprotective of every woman decrying her having been sexually
abused and demanding punishment for the abuser. While they ought to be
cognizant of the anguish and humiliation the rape victim goes through as she
demands justice, judges should equally bear in mind that their responsibility is to
render justice based on the law.  (Citation omitted)
65

It needs no elaboration that in criminal litigation, the evidence of the prosecution

must stand or fall on its own merits and cannot draw strength from the weakness
of the defense.  "[T]he burden ofproof rests on the [S]tate. The accused, ifhe so
66

chooses, need notpresent evidence. He merely has to raise a reasonable doubt

and whittle away from the case of the prosecution. The constitutional
presumption of innocence demands no less,"  even as it also demands no less
67

than a moral certainty of his guilt. 68

WHEREFORE, accused-appellant Anecito Estibal y Calungsag is hereby

ACQUITTED. His immediate RELEASE from detention is hereby ORDERED,
unless he is being held for another lawful cause. Let a copy of this Decision be
furnished to the Director of the Bureau of Corrections, Muntinlupa City for
immediate implementation, who is then directed to report to this Court the action
he has taken within five (5) days from receipt hereof.

Page 23 of 349
G.R. No. 133964               February 13, 2002
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
RAMIL PEÑA, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:

Accused-appellant Ramil Peña was charged with murder in an Information which

reads, thus:

That on or about the 8th day of December, 1995, in the municipality of Obando,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused armed with a firearm with intent to kill one
Jimbo Pelagio y Ferrer, did then and there wilfully, unlawfully and feloniously,
with evident premeditation and treachery, attack, assault and shoot the said
Jimbo Pelagio y Ferrer, hitting the latter on the head thereby inflicting wound
which directly caused the death of the said Jimbo Pelagio y Ferrer.
1

In the early morning of December 8, 1995, accused-appellant hired Jimbo

Pelagio, a tricycle driver working the night shift, to take him to Paco, Obando,
Bulacan. When they reached their destination, he ordered Pelagio to get off the
tricycle. Then, accused-appellant robbed Pelagio of his money and repeatedly
struck him on the head with a gun. Pelagio fell on the ground unconscious.
Accused-appellant shot him on the head and fled on board his tricycle.

That same morning, SPO1 Froilan Bautista got a call from the Valenzuela
Emergency Hospital stating that a man had been shot on the head and was in
their hospital. SPO1 Bautista and SPO1 Jose Sta. Ana rushed to the hospital and
found the still conscious Pelagio lying on a stretcher.

SPO1 Bautista took the statement of Pelagio in a question and answer method,
which he took down on two sheets of yellow paper. After his statement was
taken, Pelagio affixed his thumbmark on both sheets. In his statement, Pelagio
related how accused-appellant inflicted his injuries on him.

The owner of the tricycle, Wilfredo Lampa, after being informed that Pelagio had
been shot, proceeded to the hospital. There, Pelagio told him that it was
accused-appellant who shot him and took away his tricycle.

Page 24 of 349
Francisca Pelagio, Jimbo Pelagio’s mother, also rushed to the hospital. Upon
advice of the doctors, Francisca brought her son to the Jose Reyes Memorial
Hospital. On February 6, 1996, Jimbo Pelagio expired. According to Francisca,
she spent P26,000.00 for his medical and funeral expenses.

For his part, accused-appellant claimed that he was in San Isidro, San Luis,
Pampanga together with his wife on the date of the incident. He went into hiding
in the house of his uncle, Maximiano Guevarra, for nine (9) months because he
allegedly killed a certain Roger Wininsala. He came to know that he was being
accused of the murder of Pelagio, whom he did not know, only while he was in
detention on a drug charge.

Accused-appellant’s testimony was corroborated by his uncle Maximiano

Guevarra.

The trial court was not persuaded. On May 13, 1998, it rendered a decision, the
2 

dispositive portion of which reads:

WHEREFORE, the foregoing considered, this Court hereby finds RAMIL PEÑA
GUILTY beyond reasonable doubt of the crime of Murder under Article 248 of the
Revised Penal Code and sentences him to suffer the penalty of Reclusion
Perpetua and to pay the victim’s mother, Francisca Pelagio, the amount of
P26,000.00 representing actual damages and the costs of suit.

Hence this appeal.

Accused-appellant claims that the trial court erred in finding that accused-
appellant shot Pelagio because there is no evidence that a bullet was embedded
in the skull of the victim. More specifically, the attending physicians were not
presented to testify that the victim died of a gunshot wound in the head.

Accused-appellant next claims that the evidence relied upon by the trial court is
hearsay and inadmissible. He argues that said evidence does not constitute res
gestae. Particularly, he emphasizes that "it was imperative on the part of the
lower court that it should have appreciated the principle of res gestae on the
basis of the contents of Jimbo Pelagio’s statement reduced in handwritten form
by SPO1 Bautista, and not on the dying declarations made by Jimbo Pelagio to
SPO1 Bautista, Wilfredo Lampa and Francisca Pelagio because these
prosecution witnesses had all the time to contrive and improvise on what was
actually told them, allegedly by Jimbo Pelagio."
3

Page 25 of 349
The pivotal issue is whether the statement of the victim Jimbo Pelagio as well as
the testimonies of the prosecution witnesses on the victim’s declaration can be
considered as part of the res gestae, hence, an exception to the hearsay rule.

The statement or declaration made by Pelagio, taken by SPO1 Bautista, reads:

T: Alam mo ba ang dahilan kung bakit ka naririto sa Valenzuela Emergency

Hospital at kinukunan ka ng salaysay?
S: Opo, dahil pinagpapalo po ako ng baril ni RAMIL PEÑA sa ulo at kinuha and
tricycle kong minamaneho.
T: Taga saan itong si Ramil Peña?
S: Sa Dulong Tangke, Valenzuela, (Malinta), M.M.
T: Saan, kailan at anong oras nangyari ito?
S: Sa Paco, Obando, Bulacan, kaninang ika-8 ng Disyembre 1995 sa ganap na
ika-4:15 ng umaga.
T: Sakay mo ba itong si Ramil Peña?
S: Oho, sumakay sa may gasolinahan ng Petron sa Malinta, Valenzuela, M.M.
T: Dati mo bang kilala si Ramil Peña?
S: Opo.
T: Ano ba ang tatak ng tricycle mo?
S: Yamaha RS-100, kulay itim.
T: Sino and may-ari ng tricycle?
S: Si Rey Dagul.
T: Binaril ka ba ni Ramil?
S: Muntik na ho.
T: Bakit sa iyo ginawa ni Ramil and bagay na ito?
S: Ewan ko ho. 4

The trial court ruled that Pelagio’s statement was a dying declaration since it was
uttered at the point of death and with consciousness of that fact due to the
serious nature of his wounds. Thus, it admitted Pelagio’s statement in evidence
as an exception to the hearsay rule.

The requisites for the admissibility of dying declarations have already been
established in a long line of cases. An ante-mortem statement or dying
declaration is entitled to probative weight if: (1) at the time the declaration was
made, death was imminent and the declarant was conscious of that fact; (2) the
declaration refers to the cause and surrounding circumstances of such death; (3)
the declaration relates to facts which the victim was competent to testify to; (4)
the declarant thereafter died; and (5) the declaration is offered in a criminal case
wherein the declarant’s death is the subject of the inquiry.
5

Page 26 of 349
The first element is lacking in the case at bar. It was not established with
certainty whether Pelagio uttered his statement with consciousness of his
impending death. While he was in pain when he made his statement, he
expressly stated that accused-appellant only pistol-whipped him and almost shot
him.6

The significance of a victim’s realization or consciousness that he was on the

brink of death cannot be gainsaid. Such ante mortem statement is evidence of
the highest order because at the threshold of death, all thoughts of fabricating
lies are stilled. The utterance of a victim made immediately after sustaining
serious injuries may be considered the incident speaking through the victim. It is
entitled to the highest credence.7

Granting that Pelagio, after giving his statement, later on realized that he was
dying, his statement still can not be considered a dying declaration. The crucial
factor to consider is the contemporaneity of the moment when the statement was
made and the moment of the realization of death. The time the statement was
being made must also be the time the victim was aware that he was dying.

While it may not qualify as a dying declaration, Pelagio’s statement may

nonetheless be admitted in evidence as part of the res gestae. In People v.
Marollano, this Court held:
8 

The requisites for the admissibility of the victim’s ante mortem statement as part

of the res gestae and also as a dying declaration are present in this case, hence
the same should be admitted under both exceptions to the hearsay rule. (Citation
omitted) While the admissibility thereof would naturally not be affected whether
viewed under either or both considerations, the advantage of resting the issue on
the aforesaid dual bases is that its admission would be invulnerable to a
theorized absence of an element of one of said exceptions. This is particularly
important in this case, considering that the very identification of the assailant and
the accuracy thereof are essentially based on the declaration of the victim.
(Emphasis supplied)

A declaration made spontaneously after a startling occurrence is deemed as part

of the res gestae when (1) the principal act, the res gestae, is a startling
occurrence; (2) the statements were made before the declarant had time to
contrive or devise; and (3) the statements concern the occurrence in question
and its immediately attending circumstances. 9

In People v. Naerta, this Court held that:

10 

Page 27 of 349
The term "res gestae" comprehends a situation which presents a startling or
unusual occurrence sufficient to produce a spontaneous and instinctive reaction,
during which interval certain statements are made under such circumstances as
to show lack of forethought or deliberate design in the formulation of their
content.

Pelagio’s declaration is admissible as part of the res gestae since it was made

shortly after a startling occurrence and under the influence thereof. Under the
circumstances, the victim evidently had no opportunity to contrive his statement
beforehand. 11

In People v. Hernandez, the infliction on a person of a gunshot wound on a vital

12 

part of the body should qualify by any standard as a startling occurrence. And the
rule is that testimony by a person regarding statements made by another as that
startling occurrence was taking place or immediately prior or subsequent thereto,
although essentially hearsay, is admissible exceptionally, on the theory that said
statements are natural and spontaneous, unreflected and instinctive, made
before there had been opportunity to devise or contrive anything contrary to the
real fact that occurred, it being said that in these cases, it is the event speaking
through the declarant, not the latter speaking of the event.

In this case, it is clear that the pistol-whipping and the gunshot on the head of
Pelagio qualified as a startling occurrence. Notably, Pelagio constantly
complained of pain in his head while his statement was being taken by SPO1
Bautista, so much so that there was no opportunity for him to be able to devise or
contrive anything other than what really happened.

In People v. Putian, the Court held that although a declaration does not appear
13 

to have been made by the declarant under the expectation of a sure and
impending death, and, for that reason, is not admissible as a dying declaration,
yet if such declaration was made at the time of, or immediately after, the
commission of the crime, or at a time when the exciting influence of the startling
occurrence still continued in the declarant’s mind, it is admissible as part of
the res gestae.

Indeed the defense admitted as much when it stated, thus:

We should stress that Jimbo Pelagio’s handwritten statement, or his declarations

therein, were made immediately after the res gestae or the principal act took
place, and he had no time to contrive or devise, while his statements directly
concerned the occurrence in question and its immediate circumstances. We
should take note further that the handwritten statement’s contents are rather

Page 28 of 349
detailed in terms of the specifics of the circumstances before, during and after
the subject incident which elicits guarded conclusion that notwithstanding Jimbo
Pelagio’s physical condition at the Valenzuela Emergency Hospital, he was
conscious and lucid enough to intelligently respond rather spontaneously on the
questions propounded to him by SPO1 Bautista. These acts and statements
made by Jimbo Pelagio definitely constitute part of res gestae and not the
testimonies and/or written statements of the three prosecution witnesses in this
case.14

By stating, however, that the testimonies or the written statements of the three
prosecution witnesses were taken into consideration by the trial court as part of
the res gestae betrays a misapprehension of said principle. This Court agrees
with the Solicitor General when it observed thus:

Since res gestae refers to those exclamations and statements made by either the

participants, victims or spectators to a crime before, during or immediately after
the commission of the crime, they should necessarily be the ones who must not
have the opportunity to contrive or devise a falsehood but not the persons to
whom they gave their dying declaration or spontaneous statement. In other
words, the witness who merely testifies on a res gestae is not the declarant
referred to in the second requisite whose statements had to be made before he
"had the time to contrive or devise a falsehood." (citation omitted)

Thus, even if there were intervening periods between the time the victim gave his
account of the incident to the prosecution witnesses and the time the latter first
disclosed what the victim told them, the same will not affect the admissibility of
the victim’s declaration or statement as part of res gestae since it is sufficient that
such declaration or statement was made by the victim before he had time to
contrive or devise a falsehood. 15

In any case, there is no reason why SPO1 Bautista would contrive or devise a
falsehood especially on the matter that Pelagio was shot on the head and that it
was accused-appellant who shot him. As a police officer, he was duty-bound to
investigate and unearth the facts of the case. There is a presumption that as an
officer of the law, he sought only the truth. Besides, no motive was shown as to
why he would contrive or devise a falsehood against accused-appellant.

In his Investigation Report, SPO1 Bautista gathered that accused-appellant shot

16 

Pelagio from the Radiologic Report conducted at the Valenzuela District Hospital
wherein the presence of metallic fragments was discovered. Moreover, the
results of the C.T. Scan conducted on the victim showed the presence of metallic

Page 29 of 349
fragments in his skull. In Pelagio’s Death Certificate, the underlying cause of
17 

death was indicated as gunshot wound to the head.

There is, therefore, no merit in accused-appellant’s contention that there was no

evidence that Pelagio was shot in the head. It should be noted that accused-
appellant pistol-whipped Pelagio repeatedly. The Solicitor General’s following
submission would, therefore, make sense:

Given the probability that he was already unconscious or his head had become
numb due to severe head injuries when accused-appellant shot him, it is not
unlikely for the victim not to have known or felt being shot and hit by accused-
appellant on the head. This was probably the reason why in his initial declaration,
the victim merely stated that he was nearly shot by accused-appellant. 18

Regardless, Pelagio categorically declared that it was accused-appellant who

caused his head injuries which eventually led to his death.  SPO1 Bautista’s
1âwphi1

testimony as well as Wilfredo Lampa’s and Francisca Pelagio’s merely

corroborated Pelagio’s statement that it was accused-appellant who caused his
head injuries.

The trial court found, thus:

The straightforward and consistent testimonies of the three vital prosecution

witnesses bear the earmarks of credibility. Further, there exists no ill motive on
their part to prevaricate. This absence of evidence as to an improper motive
actuating the principal witnesses for the prosecution strongly tends to sustain that
no improper motive existed and their testimony is worthy of full faith and credit
(citation omitted), for witnesses do not generally falsely impute to an accused a
serious criminal offense were it not the untarnished truth. (Citation omitted)

Settled is the rule that in the absence of any fact or circumstance of weight and
influence which has been overlooked or the significance of which has been
misconstrued to impeach the findings of the trial court, the appellate courts will
not interfere with the trial court’s findings on the credibility of the witnesses or set
aside its judgment, considering that the trial court is in a better position to decide
the question for it had heard the witnesses themselves during the trial. The
evaluation of the credibility of witnesses is a matter that particularly falls within
the authority of the trial court.
19

However, this Court cannot agree with the trial court that the crime should be
murder. While evident premeditation and treachery were alleged in the
information, the trial court did not state why the killing was qualified to murder.

Page 30 of 349
The prosecution failed to establish the attendance of the qualifying
circumstances with concrete proof. The crime proved was only homicide.

In accordance with Article 249 of the Revised Penal Code, accused-appellant

should be sentenced to reclusion temporal. There being no mitigating or
aggravating circumstance, the penalty to be imposed shall be the medium period
of reclusion temporal, ranging from fourteen (14) years, eight (8) months and one
(1) day to seventeen (17) years and four (4) months. Applying the Indeterminate
Sentence Law, accused-appellant shall be entitled to a minimum penalty, to be
taken from the penalty next lower in degree or prision mayor, in any or its
periods, ranging from six (6) years and one (1) day to twelve (12) years.

As to the matter of damages, we hold that the trial court should have awarded
civil indemnity in the amount of P50,000.00 in line with prevailing
jurisprudence. The award of P26,000.00 as actual damages is upheld, being
20 

duly proven with receipts.

21

WHEREFORE, in view of the foregoing, the decision is MODIFIED. Accused-

appellant Ramil Peña is found guilty beyond reasonable doubt of homicide and
sentenced to suffer an indeterminate sentence of ten (10) years of prision mayor,
as minimum, to seventeen (17) years and four (4) months of reclusion temporal,
as maximum, and to pay the heirs of the victim Jimbo Pelagio the amount of
P50,000.00 as civil indemnity and P26,000.00 as actual damages.

Costs against accused-appellant.

Page 31 of 349
G.R. No. 214453               June 17, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, 
vs.
BERNABE P. PALANAS alias "ABE", Accused-Appellant.
DECISION
PERLAS-BERNABE, J.:

Before the Court is an ordinary appeal  filed by accused-appellant Bernabe P.

1

Palanas alias "Abe" (Palanas) assailing the Decision  dated January 16, 2014 of
2

the Court of Appeals (CA) in CA-G.R. CR HC No. 04925, which affirmed the
Decision  dated October 20, 2010, of the Regional Trial Court of Pasig City,
3

Branch 157 (RTC) in Criminal Case No. 133352-H finding Palanas guilty beyond
reasonable doubt of the crime of Murder under the Revised Penal Code (RPC).

The Facts

An Information  was filed before the R TC charging Palanas of the murder

4

ofSP02 Ramon Borrey Orio (SP02 Borre), viz.:

On or about March 26, 2006, in Pasig City, and within the jurisdiction of this
Honorable Court, the accused [Palanas], acting in conspiracy with one male
person who is at-large, whose true identity and where about[s] are still unknown
acted as co-principal in the killing of one SPO2 Ramon Borre y Orio, committed
as follows: said male person, armed with a gun, with intent to kill and with the
qualifying circumstances of treachery and evident premeditation, did then and
there willfully, unlawfully and feloniously attack, assault, and shot one SPO2
Ramon Borre yOrio on his head and different parts of his body which directly
caused his death, and thereafter, took the firearm of the said victim, boarded a
motorcycle driven by the accused who thereafter, drove the motorcycle away
from the scene of the crime.

Contrary to Law. 5

The prosecution presents the following version of the facts:

At around 6:40 in the morning of March 26, 2006, SPO2 Borre took his five (5)-
month-old grandson outside his residence at Block 14, Kenneth Street corner
Eusebio Avenue, Pasig City. PO3 Leopoldo Zapanta (PO3 Zapanta), who slept
at SPO2 Borre’s residence, was watching television when four (4) successive
gunshots rang out. PO3 Zapanta looked through the open door of SPO2 Borre’s
house and saw two (2) men armed with .38 caliber revolvers standing a meter
away from SPO2 Borre. He saw Palanas deliver the fourth shot to SPO2 Borre,

Page 32 of 349
but he could not identify the other shooter. Thereafter, the two (2) assailants fled
on a motorcycle.  PO3 Zapanta, together with SPO2 Borre’s stepson Ramil
6

Ranola (Ramil), brought SPO2 Borre to the Pasig City General Hospital. On the
way to the hospital, SPO2 Borre told Ramil and PO3 Zapanta that it was "Abe,"
"Aspog," or "Abe Palanas" – referring to his neighbor, Palanas – who shot him.
This statement was repeated to his wife, Resurreccion Borre (Resurreccion), who
followed him at the hospital. At around 11 o’clock in the morning of even date,
SPO2 Borre died due to gunshot wounds on his head and trunk. 7

For his part, Palanas interposed the defense of denial and alibi. He claimed that
on March 25, 2006 he was in Parañaque City attending to the needs of his sick
father. The next day, he went to a baptism in Tondo, Manila and stayed there
from morning until 9 o’clock in the evening, after which he returned to his father
in Parañaque City. He maintained that he was not aware of the death of SPO2
Borre until he was informed by a neighbor that Resurreccion was accusing him of
killing her husband. He also denied any knowledge why Resurreccion would
blame him for SPO2 Borre’s death. 8

The RTC Ruling

In a Decision  dated October 20, 2010, the RTC convicted Palanas of the crime
9

of Murder and sentenced him to suffer the penalty of reclusion perpetua, and
ordered him to pay the heirs of SPO2 Borre the amounts of: (a) ₱50,000.00 as
civil indemnity; (b) ₱25,000.00 as exemplary damages; (c) ₱50,000.00 as moral
damages; and (d) ₱2,464,865.07  as actual damages.
10 11

The RTC found that the prosecution had established beyond reasonable doubt
that Palanas and his companion were the ones who killed SPO2 Borre through
the positive identification of the eyewitnesses to the incident. Moreover, SPO2
Borre’s statements that Palanas shot him constituted an ante mortem statement
and formed part of the res gestae, and, thus, admissible as evidence against
Palanas. It further opined that treachery attended SPO2 Borre’s killing as he had
no inkling that the attack would take place, and that he was in no position to
mount any feasible defense.  The RTC, however, did not appreciate evident
12

premeditation because of the absence of the following elements: (a) the time
when the offender determined to commit the crime; (b) an act manifestly
indicating that the accused clung to his determination; and (c) a sufficient lapse
of time between determination and execution to allow himself time to reflect upon
the consequences of his act. 13

On the other hand, the RTC gave no credence to Palanas’s defense of alibi. It
observed that it was not physically impossible for Palanas to be at the locus

Page 33 of 349
criminis as his own witness even stated that the distance between Pasig City and
Parañaque City could be traversed in less than one (1) hour. 14

Dissatisfied, Palanas appealed his conviction to the CA. 15

The CA Ruling

In a Decision  dated January 16, 2014, the CA affirmed the RTC’s ruling with
16

modification increasing the amounts awarded to the heirs of SPO2 Borre to

₱75,000.00 as civil indemnity, and ₱30,000.00 as exemplary damages.

The CA found all the elements of the crime of Murder to be present, giving
probative weight to the dying declaration of SPO2 Borre that it was Palanas who
shot him. It also found the presence of treachery as SPO2 Borre was in no
position to defend himself when he was successively shot. 17

Aggrieved, Palanas filed the instant appeal. 18

The Issue Before the Court

The issue for the Court’s resolution is whether or not Palanas’s conviction for the
crime of Murder should be upheld.

The Court's Ruling

The appeal is bereft of merit.

Murder is defined and penalized under Article 248 of the RPC, as amended by
Republic Act No. (RA) 7659,  as follows:
19

Art. 248. Murder. — Any person who, not falling within the provisions of Article
246, shall kill another, shall be guilty of murder and shall be punished by
reclusion perpetua to death if committed with any of the following attendant
circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed
men, or employing means to weaken the defense, or of means or persons to
insure or afford impunity.

xxxx

Page 34 of 349
Treachery is a well-established concept in criminal law. "There is treachery when
the offender commits any of the crimes against a person, employing means,
methods or forms in the execution thereof which tend directly and specially to
insure its execution, without risk to himself arising from the defense which the
offended party might make."  There are two (2) conditions therefore that must be
20

met for treachery to be appreciated: (a) the employment of means of execution

that gives the person attacked no opportunity to defend himself or to retaliate;
and (b) the means of execution was deliberately or consciously adopted. 21

The essence of treachery is that the attack comes without warning in a swift,
deliberate, and unexpected manner, granting the victim no chance to resist or
escape.  The attack must be sudden and unexpected rendering the victim unable
1avvphi1

and unprepared to put up a defense.  With the foregoing in mind, the Court
22

agrees with the findings of the RTC and the CA that Palanas killed SPO2 Borre,
and that the qualifying circumstance of treachery attended the same. The records
show that SPO2 Borre was outside carrying his grandson when two (2)
assailants shot him. During the attack, SPO2 Borre had no opportunity to raise
any meaningful defense against his assailants; and consequently, he suffered
multiple gunshot wounds on his head and trunk, causing his death. 23

The CA is also correct in admitting SPO2 Borre’s statements on his way to the
hospital as evidence, both as a dying declaration and as part of the res gestae.

For a dying declaration  to constitute an exception to the hearsay evidence

24

rule,  four (4) conditions must concur: (a) the declaration must concern the cause
25

and surrounding circumstances of the declarant’s death; (b) that at the time the
declaration was made, the declarant is conscious of his impending death; (c) the
declarant was competent as a witness; and (d) the declaration is offered in a
criminal case for Homicide, Murder, or Parricide where the declarant is the
victim.  On the other hand, a statement to be deemed to form part of the res
26

gestae,  and thus, constitute another exception to the rule on hearsay evidence,
27

requires the concurrence of the following requisites: (a) the principal act, the res
gestae, is a startling occurrence; (b) the statements were made before the
declarant had time to contrive or devise; and (c) the statements must concern the
occurrence in question and its immediately attending circumstances. 28

In the case at bar, SPO2 Borre’s statements constitute a dying declaration, given
that they pertained to the cause and circumstances of his death and taking into
consideration the number and severity of his wounds, it may be reasonably
presumed that he uttered the same under a fixed belief that his own death was
already imminent.  This declaration is considered evidence of the highest order
29

and is entitled to utmost credence since no person aware of his impending death

Page 35 of 349
would make a careless and false accusation.  Verily, because the declaration
30

was made in extremity, when the party is at the point of death and when every
motive of falsehood is silenced and the mind is induced by the most powerful
considerations to speak the truth, the law deems this as a situation so solemn
and awful as creating an obligation equal to that which is imposed by an oath
administered in court.31

In the same vein, SPO2 Borre’s statements may likewise be deemed to form part
of the res gestae. "Res gestae refers to the circumstances, facts, and
declarations that grow out of the main fact and serve to illustrate its character
and are so spontaneous and contemporaneous with the main fact as to exclude
the idea of deliberation and fabrication. The test of admissibility of evidence as a
part of the res gestae is, therefore, whether the act, declaration, or exclamation is
so intimately interwoven or connected with the principal fact or event that it
characterizes as to be regarded as a part of the transaction itself, and also
whether it clearly negates any premeditation or purpose to manufacture
testimony."  In this case, SPO2 Borre’s statements refer to a startling
32

occurrence, i.e., him being shot by Palanas and his companion. While on his way
to the hospital, SPO2 Borre had no time to contrive the identification of his
assailants. Hence, his utterance was made in spontaneity and only in reaction to
the startling occurrence. Definitely, such statement is relevant because it
identified Palanas as one of the authors of the crime. Therefore, the killing of
SPO2 Borre, perpetrated by Palanas, is adequately proven by the prosecution. 33

On the other hand, the Court does not find credence in Palanas’s defense of
alibi. It is axiomatic that alibi is an inherently weak defense,  and may only be
34

considered if the following circumstances are shown: (a) he was somewhere else
when the crime occurred; and (b) it would be physically impossible for him to be
at the locus criminis at the time of the alleged crime.  In this case, the RTC
35

correctly observed that aside from the admission that travel from Parañaque
Cityto Pasig City only takes about one (1) hour, the incident occurred on a
Sunday when traffic is not usually heavy. Moreover, Palanas had access to a
motorcycle that allowed him to travel faster on the date and time of the
incident.  Under the circumstances, there is the possibility that Palanas could
36

have been present at the locus criminis at the time of the shooting. Accordingly,
his defense of alibi must fall.

Anent the proper penalty to be imposed upon Palanas, Section 3 of RA

9346  provides that "[p]ersons convicted of offenses punished with reclusion
37

perpetua, or whose sentences will be reduced to reclusion perpetua, by reason

of this Act, shall not be eligible for parole under Act No. 4103, otherwise known

Page 36 of 349
as the Indeterminate Sentence Law, as amended." Pursuant thereto, Palanas
should be sentenced to suffer the penalty of reclusion perpetua, without eligibility
for parole.
38

Finally, to conform with prevailing jurisprudence, the Court increases the

amounts of damages awarded to the heirs of SPO2 Borre, as follows: (a)
₱75,000.00 as civil indemnity; (b) ₱75,000.00 as moral damages; and (c)
₱30,000.00 as exemplary damages,  all with interest at the rate of six percent
39

(6%) per annum from the date of finality of judgment until the same are fully
paid.40

WHEREFORE, the appeal is DENIED. The Decision dated January 16, 2014 of
the Court of Appeals in CA-G.R. CR HC No. 04925 finding accused-appellant
Bernabe P. Palanas alias "Abe", GUILTY beyond reasonable doubt of the crime
of Murder as defined and punished under Article 248 of the Revised Penal Code
is hereby AFFIRMED WITH MODIFICATION, in that he is sentenced to suffer the
penalty of reclusion perpetua without eligibility for parole, and ordered to pay the
heirs of SPO2 ₱2,464,865.07 as actual damages, all with legal interest at the
rate of six percent (6%) per annum from the finality of judgment until full
payment.

Page 37 of 349
G.R. No. 204735
SPOUSES CIPRIANO PAMPLONA and BIBIAN A INTAC, Petitioners 
vs.
SPOUSES LILIA I. CUETO and VEDASTO CUETO, Respondents
DECISION
BERSAMIN, J.:

This case involves conflicting claims between the parties involving their
transaction over a parcel of land and its improvements, with the respondents
claiming, on the one hand, that they had purchased the property on installment
pursuant to an oral contract to sell, and the petitioners insisting, on the other, that
the amounts paid by the respondents to them were in payment of the latter's
indebtedness for a previous loan. The trial court sided with the petitioners but the
appellate court reversed the trial court and ruled in favor of the respondents.

The Case

Under review is the decision promulgated on December 3, 2012,  whereby the

1

Court of Appeals (CA) reversed the decision issued on June 21, 2011 by the
Regional Trial Court (RTC), Branch 8, in Batangas City dismissing the
respondents' complaint in Civil Case No. 5120, and ordering the petitioners
instead to execute a deed of sale on the property in favor of the respondents
upon the release of the consigned amount. 2

The CA further ordered the Register of Deeds of Batangas City to cancel the
transfer certificate of title of the petitioners, and to issue a new one in favor of the
respondents.

Antecedents

The CA rendered the following factual and procedural antecedents:

An Amended Complaint dated 20 November 1998 was filed by plaintiffs Sps. Lilia
I. Cueto ("Lilia", for brevity) and Vedasto Cueto ("Vedasto", for brevity) against
defendants Sps. Cipriano Pamplona and Bibiana Intac ("Bibiana", for brevity) for
specific performance, conveyance, consignation and damages before the
Regional Trial Court of Batangas City, docketed as Civil Case No. 5120.

It was alleged, inter alia, that: defendants are the registered owners of Lot No.
1419-C (LRC) Psd-66901 of the Cad. Survey of Batangas, Cadastral Case No.
41, LRC Cad. Record No. 1706, with improvements thereon (subject property),
situated in Batangas City, containing an area of 476 sq. m., more or less,

Page 38 of 349
covered by Transfer Certificate of Title No. RT- 1504 (34558) of the land records
of Batangas City; on 10 January 1989, plaintiff Lilia and defendants mutually
agreed that the former would buy and the latter would sell on installment, the
aforementioned immovable including the house standing thereon for the total
sum of US$25,000.00 payable on a monthly installment of US$300.00; the
agreement was verbal considering that Lilia and defendants are sisters and
brother-in-law, respectively, and completely trusted each other; however, a
notebook with the personal inscription of defendant Bibiana was sent to Lilia at
the latter's address in Italy, affirming their oral agreement and wherein the list of
all the remittances would be entered; on even date, defendants voluntarily
transferred the peaceful possession of the subject property to Lilia and from the
date of the agreement, the latter had remitted to the former her monthly
instalments through registered mail, with a total payment of US$14,000.00 to
date, leaving a balance of US$11,000.00; since January 1989, Lilia allowed her
son Rolando (or Roilan) Cueto ("Rolando" or "Roilan", for brevity) to reside at the
subject property as Lilia had to leave for abroad due to her employment in Italy;
since January 1989, Lilia through her son, has religiously paid the annual realty
taxes on the premises, including electric and water bills; on 13 August 1997,
defendants filed before the Municipal Trial Court in Cities, Batangas City, with
malicious intent and to the prejudice of plaintiffs' rights, a case for unlawful
detainer, docketed as Civil Case No. 3429 against plaintiff's son Rolando and his
wife Liza Cueto ("Liza", for brevity); being indigent, spouses Rolando and Liza
failed to defend themselves resulting in a judgment by default and they were
finally evicted in January 1998; Lilia learned of the eviction case in June 1998
when she returned home from Italy; she executed an Affidavit of Adverse Claim
dated 15 June 1998, and registered the same with the land records of Batangas
City; on 17 June 1998, through Lilia's lawyer, a written tender of payment of
US$11,000.00 was sent to defendants by registered mail and received by
Bibiana on 30 June 1998; earnest efforts were resorted to compromise the
present controversy between members of the same family as shown by the final
demand letter dated 11 August 1998, sent by registered mail, to defendants; as a
consequence of the latter's unreasonable refusal to recognize plaintiffs' just and
valid demand, they were constrained to consign the US$1 l,000.00 or its
equivalent in Philippine currency, as final payment to defendants; after plaintiff's
compliance with her contractual obligation, she demanded from defendants to
immediately execute the necessary deed of conveyance and delivery of the
owner's copy of TCT No. T-34558; due to defendants' act and omission, Lilia
suffered actual damages for the reimbursement of her travelling expenses and
loss of revenue due her from foreign job abandonment during the length of the
proceeding; and plaintiffs are entitled to the payment of damages, attorney's fees
and litigation expenses.

Page 39 of 349
In their Answer with Counterclaim dated 25 August 2000, defendants
alleged, inter alia, that: it was plaintiff Lilia who is indebted to her sister defendant
Bibiana, as it was the latter whom she approached for money to be used in
applying for a job in Italy; as promised by Lilia, she would pay Bibiana and remit
the amount in instalment to the residence of defendants in the United States; but
only few dollars were sent to them by Lilia, and as could be gleaned from the
self-serving notations thereon, there exists no agreement duly signed by
defendants, as in truth and in fact they never sold the said property to the
plaintiffs; Article 1405 of the New Civil Code mandates that irrespective of who
the parties are to agreement, if it involves more than Php500.00, it should be
reduced into writing, mutually agreed upon by the parties thereto; plaintiff
Vedasto, and Rolando married to Liza, were allowed by defendants to stay in the
said house, by mere tolerance, subject to the condition that they would pay their
electric and water consumption bills thereon, but realty tax payments were sent
to them by defendants for payment to the Batangas City government; Vedasto,
husband of Lilia, as early as 24 October 1996, had recognized the defendants'
right of ownership over the property in question, when he undertook to vacate the
same; they never sold the subject property to the plaintiffs' if the plaintiffs
incurred expenses or suffer pecuniary damages including attorney's fees, they
themselves are to be blamed and not defendants, for instituting a baseless and
unfounded complaint.

Defendants filed their Manifestation and Urgent Motion for Inhibition dated 13
March 2001, to which plaintiffs filed their CounterManifestation dated 29 March
2001. On 05 April 2001, Judge Teodoro Tapia Riel inhibited himself. The case
was re-raffled to Branch 8.

Intervenor Redima Baytown Development Corporation ("Redima", for brevity)

filed its Manifestation and simultaneous filing of Answer-in-Intervention with
attached Answer-in-Intervention dated 24 June 2001, and Manifestation and
Urgent Motion to Admit Attached Answer-in-Intervention dated 25 July 2001.
Plaintiffs filed their "Negation" dated 10 August 2001. On 31 March 2004, the trial
court admitted the Answer-in-Intervention. Plaintiffs filed their Motion for
Reconsideration dated 23 April 2004, which was denied by the trial court on 30
July 2004.

In the meantime, petitioners therein (herein plaintiffs) filed a Petition

for Certiorari dated 20 September 2004 before this Court, docketed as CA-G.R.
No. 86541. This Court (Seventeenth Division) rendered a Decision dated 28 June
2005, granting the Petition for Certiorari, reversing and setting aside the trial
court's Orders dated 31 March 2004 and 30 July 2004, and entering a new one

Page 40 of 349
denying the Answer-in-Intervention. Private respondent Redima filed its Motion
for Reconsideration etc. dated 19 July 2005, which was denied by this Court
(Former Seventeenth Division) in its Resolution dated 03 November 2005.
Redima filed with the Supreme Court a Petition for Review on Certiorari dated 19
December 2005, docketed as G.R. No. 170315. In a Resolution dated 16
January 2006, the Supreme Court (First Division) denied the Petition for Review
on Certiorari. Redima filed its Motion for Reconsideration dated 24 February
2006, but the same was denied in the Supreme Court's Resolution dated 16
January 2006, which became final and executory and was recorded in the Book
of Entries of Judgments.

Pre-trial was held and the trial court issued an Order dated 25 April 2005.

Trial on the merits ensued. Plaintiff Lilia, Roilan and Emma Intac were presented
as witnesses.

Lilia Cueto testified, inter alia, that: she started working in Italy in 1987 up to the

present; Bibiana is her sister and Cipriano Pamplona is her brother-in-law who
have been residing in the U.S.A. for 35 years; she bought the subject property in
Kumintang Ibaba, Batangas City, covered by TCT No. RT-1504 from Sps.
Pamplona on 10 January 1998; Bibiana called her by telephone and told her that
she (Lilia) would pay by installment every month for US$300.00; the total amount
of said subject property is $25,000.00; they agreed to the proposal and Bibiana
sent her a booklet wherein she could write her payments and there was also a
note above in the booklet before Bibiana sent the same; her sister has
inscriptions on the front cover of Exhibit "B"; the figures 1-10-89 is the date of her
first payment; US$25,000.00 is the amount of the subject property she bought
from defendants; US$300.00 is her monthly payment; all in all, she sent Bibiana
US$14,000.00; her thirty-one (31) return cards show that she sent money to
Bibiana; usually she sent Bibiana cash in US dollars; possession of the subject
property was entrusted to her and her son Roilan resided in the said property
since 10 January 1989; she paid realty taxes on the subject property as shown in
the four (4) official receipts dated 22 November 1996, for the years 1991 to 1996;
Roilan was ejected by Bibiana in November 1997 in relation to the complaint for
unlawful detainer in Civil Case No. 3429; when she talked with Bibiana in the
Philippines on 07 June 1998, she did not have with her the full payment for the
balance amounting to US$1 l,000.00 because she lost her job at that time; after
she and Bibiana talked on 07 June 1998, they agreed that she would come back
to the Philippines in order to pay the latter; she came back to the Philippines on
27 September 1999 and she had the money with her, but Bibiana already left for
1he USA; and Bibiana did not accept her tender of payment of US$11,000.00.

Page 41 of 349
On cross-examination, she testified that: she and Bibiaha verbally agreed that
she was going to pay; Bibiana told her that after she has settled the payment,
that would be the time that they would execute a deed of sale; her husband knew
that she bought said property; and the yellow paper shows what was agreed
upon by her and Bibiana.

Roilan Cueto testified, inter alia, that: his mother Lilia has been working in Italy
since 1987; Sps. Pamplona are his uncle and aunt; Bibiana and Lilia are sisters;
Lilia started paying defendants US$300.00 a month since 10 January 1989; his
parents authorized him to reside on the said property; since 10 January 1989, he
occupied the house and paid the electric and water bills; he paid the taxes of the
subject property, but it was his mother who sent money for the payment; he was
ejected from the house because he was charged with urilawful detainer by his
aunt; after the promulgation of the decision in the unlawful detainer case, he left
the house; he did not inform his mother, and just waited for her to come home,
because he did not want to give her a problem; and from the time he occupied
the subject property on 10 January 1989 and up to the time he was ejected by
the Court, he did not pay any rent. On cross-examination, he testified that: his
father Vedasto is a co-plaintiff in this case; he thinks that his father was forced to
sign the undertaking "Pangako ng Pag-alis" because his mother and father had a
quarrel during that time and they were made to understand that it was a form of
separation of property, which is why, they made that document; he did not appeal
the Decision of Judge Francisco D. Sulit ("Sulit", for brevity); and he just left
because his mother was still abroad and they did not have the financial capacity
to hire the services of counsel. On redirect examination, he testified, that he
informed his mother who was in Italy about the ejectment case filed against him
by the Sps. Pamplona during the time when they were made to vacate by Sps.
Pamplona.

Emma Intac testified, inter alia, that Lilia and Bibiana are her sisters; and that
Lilia is the mother of Rolando who is the owner of the house.

Plaintiffs filed their Formal Offer dated 02 February 2009, to which defendants
filed their "Legal & Factual Objections etc." dated 27 March 2009. On 20 April
2009, the trial court admitted plaintiffs' Exhibits "A" to "T" with submarkings.

Wilfredo M. Panaligan and Atty. Dimayacyac testified for the defense.

Wilfredo M. Panaligan, testified, inter alia, that: he was a member of the

Batangas City Police Station in 1997, and he was assigned at the Intelligence
Division, under Col. Pablo Panaligan; he and P02 Hoberto Bagsit ("Bagsit", for
brevity) were called by their Chief of Police for police assistance to Brgy.

Page 42 of 349
Kumintang Ibaba, Batangas City; he was told to get in touch with Sps. Pamplona
for peace and order situation thereat; in his (Panaligan) presence, Roilan signed
his written undertaking in relation to their manifestation to vacate the premises
regarding the decision of Judge Sulit; Vedasto signed the "Pangako ng Pag-alis";
and he and Bagsit were present when Vedasto signed said specific undertaking;
they were assisted by the sheriff of the court; there were typographical errors in
the undertaking of Vedasto considering 24 October 1996 should be 1997, and 21
October 1996 should be 21 October 1997; he read the document marked at
Exhibit "4-A" before affixing his signature thereon; and he was not able to call the
attention of the court personnel or Vedasto regarding the discrepancy of the date
stated on the document, as he just signed as a witness.

Atty. Reynaldo P. Dimayacyac, Sr., defendants' counsel, filed his Judicial

Affidavit dated 26 August 2010 (Exhibit " AA") and affirmed the same. He
testified, inter alia, that: when the property was offered to him before and being
well acquainted of the fact that as early as 1997, his assistance was solicited in
conjunction with the assistance provided by the Batangas City PNP for the
enforcement of the decision of Judge Sulit, ejecting Roilan or Rolando and Liza,
the son and daughter-in-law of the plaintiffs, he was already aware of the legality
of the ownership of Sps. Pamplona; he went to the trial court and made
researches on the pleadings pending as well as the record of the proceedings,
for that purpose; he realized that the case instituted by Sps. Cueto against Sps.
Pamplona had no legal basis; and he noticed with respect to the other arguments
advanced by Atty. Eugenio Mendoza, counsel of Sps. Pamplona therein, that the
basis of the allegations in favor of Lilia, which has been denied by Sps.
Pamplona, was that there was no document of sale which had been signed and
they were not in possession because they were ejected, aside from the fact no
appeal has been instituted by either Lilia or Vedasto; he was not the counsel of
the defendants in the ejectment case decided by Judge Sulit; he examined the
annotation on TCT No. RT-1504(34558) at the land records of Batangas City; he
is not aware of the lis pendens per entry Entry No. 105392 that was annotated
thereon in September 1998 because he never went to the Register of Deeds; he
just depended on his copy of a clean title; he and his family corporation have
never been disturbed in their possession; he is aware that when Redima
executed the Memorandum of Agreement and Contract to Sell on 15 March
2001, there is a pending litigation between plaintiffs and defendants in this case;
and Redima took possession of the property in litigation immediately after the
execution of the Memorandum of Agreement and Contract to Sell; the permission
of the trial court was not needed when they took possession of the property; and
he participated by filing the necessary intervention.

Page 43 of 349
Defendants filed their Motion to Admit attached Formal Offer of Evidence dated
10 January 2011, to which plaintiffs filed an Opposition dated 08 February 2011.
On 28 March 2011, the trial court admitted Exhibit "AA" which was remarked by
defendants' counsel as Exhibit "20". Plaintiffs filed their Memorandum dated 19
April 2011, to which defendants filed their Counter-Argument etc. dated 27 April
2011 xxx. 3

Judgment of the RTC

As stated, the RTC, holding that the respondents did not prove the existence of
the partially executed contract to sell involving the property; that neither
documentary nor object evidence confirmed the supposed partially executed
contract to sell; and that the respondents accordingly failed to support their cause
of action by preponderance of evidence, disposed:

Wherefore, the complaint filed against Spouses Cipriano Pamplona and Bibiana

Intac for specific performance, reconveyance consignation and damages
is hereby dismissed for failure of thePlaintiff to present preponderance of
evidence to substantfate the theory of the case. In like manner This Court will not
award any damages in favor of the Defendants; however the cost of the suit is
chargeable against the Plaintiff. .

SO ORDERED. 4

Decision of the CA

On appeal, the CA reversed the R TC, and declared that the respondents
presented sufficient evidence to establish that petitioner Bibiana and her sister,
respondent Lilia, had entered into an oral contract to sell; that their oral contract,
being partially executed by virtue of Lilia's partial payments to Bibiana, removed
the contract from the application of the Statute of Frauds; that the transfer of the
property in favor of Redima, represented by the petitioners' counsel, Atty.
Dimayacyac, by virtue of the deed of transfer of rights, was null and void for
being violative of Article 1491 of the Civil Code.

The fallo of the decision of the CA reads:

WHEREFORE, premises considered, the appeal is GRANTED. The Decision

dated 21 June 2011 of the Regional Trial Court, Fourth Judicial Region, Branch
8, Batangas City in Civil Case No. 5120 is REVERSED and SET ASIDE.
Accordingly, plaintiff-appellant Lilia I. Cueto is recognized to have the right of
ownership over subject property covered by Transfer Certificate of Title No. RT-

Page 44 of 349
1504 (34558) of the Registry of Deeds for Batangas City registered in the names
of defendants-appellees Spouses Cipriano Pamplona and Babiana Intac. The
Registrar of Deeds of Batangas City is hereby ORDERED to cancel said TCT
No. RT-1504 (34558) and to issue a new one in the name of plaintiff-appellant
Lilia I. Cueto. The judicially consigned amount of Php436,700.00 under Official
Receipt No. 8789368 dated 24 November 1998, representing the full payment by
plaintiff-appellant Lilia I. Cueto of the remaining balance of the subject property's
purchase price, is ORDERED release[ d) to defendants-appellees. Defendants-
appellees are hereby ORDERED to immediately execute a Deed of Absolute
Sale over the subject property in favor of plaintiff-appellant Lilia I. Cueto. Costs
against defendants-appellees.

SO ORDERED. 5

Issues

The petitioners now assail the decision of the CA by stressing that the
admissions of Lilia's son, Roilan, and of her husband, petitioner Vedasto, to the
effect that the petitioners were the true owners of the property were contrary to
the conclusions of the CA; that the CA' s finding that there had been a partially
executed contract to sell was unwarranted because nothing in the records
established the same; that the decision of the MTCC of Batangas City against
Roilan in the unlawful detainer case indicated that they were the true owners of
the property; that the CA should not have nullified the deed of transfer of rights
between Redima and the petitioners on the strength of Article 1491 of the Civil
Code because it was Redima, the corporation, that acquired the property instead
of Atty. Dimayacyac; and that there was no violation of Article 1491 because of
the separate juridical personalities between the corporation and its shareholders.

On their part, the respondents object to the authority of Atty. Dimayacyac to sign
the verification and certification against forum shopping for the petitioners, stating
that the fact that the written authority for that purpose had been notarized before
a notary public of the State of Washington did not convert the document into a
public document in the context of the Philippine law; that the factual findings of
the CA, being more consistent with the facts and the law of the case, should be
respected; that the CA correctly voided the transfer of the property from the
petitioners to Redima and Atty. Dimayacyac for having been in violation of Article
1491 of the Civil Code; and that although it may have appeared that it was
Redima, it was really Atty. Dimayacyac who had purchased the property after
piercing the corporate veil, which indicated that the transfer was both legally and
ethically abhorrent.

Page 45 of 349
In their reply, petitioners counter that the general power of authority was duly
authenticated within the Consulate General of the Philippines in San Francisco,
California, and was submitted to the RTC as Exhibit 5-b; and that any objection
to the validity of the verification and certification against forum shopping would be
misplaced.

Based on the foregoing, the issues to be resolved are: (a) whether or not there
was sufficient evidence to show the existence of a partially executed contract to
sell; and (b) whether or not the deed of transfer of rights from the respondents to
Redima violated Article 1491 of the Civil Code.

Ruling of the Court

The appeal lacks merit.

Generally, the Court cannot delve into questions of fact on appeal because it is
not a trier of facts. Yet, this rule has not been iron-clad and rigid in view of
several jurisprudentially recognized instances wherein the Court has opted to
settle factual disputes duly raised by the parties. These instances include
situations: (a) when the inference made is manifestly mistaken, absurd or
impossible; (b) when there is grave abuse of discretion; (c) when the finding is
grounded entirely on speculations, surmises or conjectures; ( d) when the
judgment of the CA is based on misapprehension of facts; ( e) when the findings
of fact are conflicting; ( f) when the CA, in making its findings, went beyond the
issues of the case, and the same is contrary to the admissions of both appellant
and appellee; (g) when the findings of the CA are contrary to those of the trial
court; (h) when the findings of fact are conclusions without citation of specific
evidence on which they are based; (i) when the CA manifestly overlooked certain
relevant facts not disputed by the parties and which, if properly considered,
would justify a different conclusion; and (j) when the findings of fact of the CA are
premised on the absence of evidence but the premise is contradicted by the
evidence on record. 6

The conflict in the factual findings and conclusions drawn by the RTC and the CA
demands that the Court sift the records in order to settle the dispute between the
parties.

At the start, the Court reiterates the general proposition that is true in all civil
litigations that the burden of proof lies in the party who asserts, not in the party
who denies because the latter, by the nature of things, cannot produce any proof
of the assertion denied.  Equally true is the dictum that mere allegations cannot
7

take the place of evidence. The party making an allegation in a civil case has the
8

Page 46 of 349
burden of proving the allegation by preponderance of evidence.  In this 9

connection, preponderance of evidence is the weight, credit, and value of the

aggregate evidence on either side and is usually considered to be synonymous
with the term "greater weight of evidence" or "greater weight of credible
evidence." 10

A careful review of the records calls for us to affirm the CA. In our view, the
existence of the partially executed contract to sell between Bibiana and Lilia was
sufficiently established.

It is uncontested that Lilia sent money to Bibiana. The latter did not deny her
receipt of the money. Moreover, the records showed that the parties further
agreed for Vedasto and Roilan to occupy the property during the period when
Lilia was remitting money to Bibiana; and that Lilia immediately took steps to
protect her interests in the property once the petitioners started to deny the
existence of the oral contract to sell by annotating her adverse claim on the
petitioners' title and instituting this A careful review of the records calls for us to
affirm the CA. In our view, the existence of the partially executed contract to sell
between Bibiana and Lilia was sufficiently established. It is uncontested that Lilia
sent money to Bibiana. The latter did not deny her receipt of the money.
Moreover, the records showed that the parties further agreed for Vedasto and
Roilan to occupy the property during the period when Lilia was remitting money
to Bibiana; and that Lilia immediately took steps to protect her interests in the
property once the petitioners started to deny the existence of the oral contract to
sell by annotating her adverse claim on the petitioners' title and instituting this
action against the latter. We concur with the CA's holding that the respondents
adduced enough evidence to establish the existence of the partially executed
contract to sell between Lilia and Bibiana.

The petitioners have contended that the sums of money received from Lilia were
payments of the latter's obligations incurred in the past; that the admission by
Roilan and his wife that the petitioners owned the property negated the absence
of the contract to sell; and that the admission by Vedasto that the petitioners
owned the property was an admission against interest that likewise belied the
contract to sell between Lilia and Bibiana.

The contentions of the petitioners are factually and legally unwarranted.

To start with, it was incumbent upon Bibiana to prove her allegation in the answer
that the money sent to her by Lilia was in payment of past debts. This conforms
to the principle that each party must prove her affirmative allegations. Yet, the
11

petitioners presented nothing to establish the allegation. They ought to be

Page 47 of 349
reminded that allegations could not substitute for evidence. Without proof of the
allegation, therefore, the inference to be properly drawn from Bibiana's receipt of
the sums of money was that the sums of money were for the purchase of the
property, as claimed by the respondents.

Secondly, the admissions by Roilan and Vedasto of the petitioners' ownership of

the property could not be appreciated in favor of the petitioners. That Bibiana and
Lilia had entered into a contract to sell instead of a contract of sale must be well-
noted. The distinctions between these kinds of contracts are settled. In Serrano
v. Caguiat, the Court has explained:
12

A contract to sell is akin to a conditional sale where the efficacy or obligatory

force of the vendor's obligation to transfer title is subordinated to the happening
of a future and uncertain event, so that if the suspensive condition does not take
place, the parties would stand as if the conditional obligation had never existed.
The suspensive condition is commonly full payment of the purchase price.

The differences between a contract to sell and a contract of sale are well-settled
in jurisprudence. As early as 1951, in Sing Yee v. Santos, we held that:

x x x [a] distinction must be made between a contract of sale in which title passes
to the buyer upon delivery of the thing sold and a contract to sell x x x where by
agreement the ownership is reserved in the seller and is not to pass until the full
payment, of the purchase price is made. In the first case, non-payment of the
price is a negative resolutory condition; in the second case, full payment is a
positive suspensive condition. Being contraries, their effect in law cannot be
identical. In the first case, the vendor has lost and cannot recover the ownership
of the land sold until and unless the contract of sale is itself resolved and set
aside. In the second case, however, the title remains in the vendor if the vendee
does not comply with the condition precedent of making payment at the time
specified in the contract.

In other words, in a contract to sell, ownership is retained by the seller and is not
to pass to the buyer until full payment of the price. xxxx

The distinctions delineate why the admissions by Roilan and Vedasto were
consistent with the existence of the oral contract to sell between Lilia and
Bibiana. Under the oral contract to sell, the ownership had yet to pass to Lilia,
and Bibiana retained ownership pending the full payment of the purchase price
agreed upon.

Page 48 of 349
Thirdly, the failure of Roilan to raise as a defense in the unlawful detainer suit
against him the existence of the contract to sell between Bibiana and Lilia could
not be properly construed as an admission by silence on the part of Lilia. It is
basic that the rights of a party cannot be prejudiced by an act, declaration, or
omission of another.  Res inter alias acta alteri nocere non debet. As an
13

exception to the rule, the act or declaration made in the presence and within the
hearing or observation of a party who does or says nothing may be admitted as
evidence against a party who fails to refute or reject it. This is known as
admission by silence, and is covered by Section 32, Rule 130 of the Rules of
Court, which provides:

Section 32. Admission by silence. - An act or declaration made in the presence

and within the hearing or observation of a party who does or says nothing when
the act or declaration is such as naturally to call for action or comment if not true,
and when proper and possible for him to do so, may be given in evidence against
him.

For an act or declaration to be admissible against a party as an admission by

silence, the following requirements must be present, namely: (a) the party must
have heard or observed the act or declaration of the other person; (b) he must
have had the opportunity to deny it; (c) he must have understood the act or
declaration; ( d) he must have an interest to object as he would naturally have
done if the act or declaration was not true; (e) the facts are within his knowledge;
and (f) the fact admitted or the inference to be drawn from his silence is material
to the issue.
14

The first two requirements are lacking in the case of Lilia. She was not shown to
have heard or seen the admissions by Vedasto and Roilan that were in writing
because she was .then abroad. Also, she was not shown to have had the
opportunity to deny their written admissions simply because she was not a party
to the written admissions. The rule on admission by silence applies to adverse
statements in writing only when the party to be thereby bound was carrying on a
mutual correspondence with the declarant. Without such mutual correspondence,
the rule is relaxed on the theory that although the party would have immediately
reacted had the statements been orally made in his presence, such prompt
response can generally not be expected if the party still has to resort to a written
reply.
15

In the context of the norms set by jurisprudence for the application of the rule on
admission by silence, Lilia could not be properly held to have admitted by her
silence her lack of interest in the property. On the contrary, the records reveal
otherwise. Upon her return to the country, she communicated with Bibiana on the

Page 49 of 349
terms of payment, and immediately took steps to preserve her interest in the
property by annotating the adverse claim in the land records, and by
commencing this suit against the petitioners. Such affirmative acts definitively
belied any claim of her being silent in the face of the assault to her interest.

The Court avoids discussing and resolving the issue regarding the validity of the
deed of transfer of interest between Redima and the petitioners because this
case would not be the proper occasion to do so without violating the right to due
process of Redima and Atty. Dimayacyac. We note that Redima's attempt to
intervene herein in order to protect its right was earlier denied.

WHEREFORE, the Court DENIES the petition for review

on certiorari; AFFIRMS the decision promulgated on December 3, 2012;
and ORDERS the petitioners to pay the cost of suit.

Page 50 of 349
G.R. No. 180197               June 23, 2009
FRANCISCO N. VILLANUEVA, Petitioner, 
vs.
VIRGILIO P. BALAGUER and INTERCONTINENTAL BROADCASTING
CORPORATION CHANNEL-13,Respondents.
DECISION
YNARES-SANTIAGO, J.:

Assailed is the August 10, 2007 Decision1 of the Court of Appeals in CA-G.R. CV
No. 81657 which reversed the October 29, 2003 Decision and February 2, 2004
Resolution of the Regional Trial Court of Quezon City, Branch 89 finding
petitioner Francisco N. Villanueva entitled to damages. Also assailed is the
October 16, 2007 Resolution2denying the motion for reconsideration.

On March 31, 1992, petitioner Francisco N. Villanueva, then Assistant Manager

for Operations of Intercontinental Broadcasting Corporation-Channel 13 (IBC-13)
was dismissed from employment on the ground of loss of confidence for
purportedly selling forged certificates of performance. Contesting his termination,
petitioner filed a complaint for illegal dismissal before the National Labor
Relations Commission.

During the pendency of the labor case, news articles about irregularities in IBC-
13 were published in the July 18, 1992 issue of the Manila Times and the
Philippine Star, and in the July 19, 1992 issue of the Manila Bulletin.

In these news articles, respondent Virgilio P. Balaguer, then President of IBC-13,

was quoted to have said that he uncovered various anomalies in IBC-13 during
his tenure which led to the dismissal of an operations executive for selling forged
certificates of performance.

In the Manila Times, on July 18, 1992:3

Anomalies at IBC-13 uncovered

INSIDER pilferage, malversation, overpricing and other irregularities have cost

government-owned Intercontinental Broadcasting Corporation (IBC) 13 more
than P108 million in losses for the period 1986-1989.

Gil P. Balaguer, IBC president, uncovered the anomalies after a long and
painstaking investigation when he took over the company in 1990.

Page 51 of 349
The investigation uncovered irregularities ranging from selling forged certificates
of performance (CP’s) to non-remittance of sales collections, illegal and
unauthorized airing of movie trailer advertisements (MTA’s), illegal leasing of
electricity and machines to "friendly clients," millions worth of undocumented
transactions to movie suppliers, exorbitant fees against in-house productions,
abused overtime charges by certain employees.

The anomalies did not escape Balaguer when he came to IBC-13 backed by
hands-on experience in television management work.

IBC has had four presidents since 1986 after the EDSA revolution. Balaguer is
the fifth president.

A special investigative committee helped Balaguer uncover the anomalies in IBC.

It led to the dismissal of an operations executive who sold forged certificates of
performance, a former supervisor who pocketed IBC’s sales collections, and
station managers who did not remit payments on radio advertisements.

Other anomalies committed against the government station include the loose
issuance of technical facilities orders (TFO’s) which practically leased the
network’s broadcast facilities to a "friendly client" for free.

Balaguer, sources said, succeeded in staying as president because of his

technical expertise in media and communications and his "managerial will" to
cleanse the ranks of the firm. (Emphasis supplied)

In the Philippine Star, on July 18, 1992:4

IBC president uncovers anomalies at tv network

The government-owned International Broadcasting Corp.-Channel 13 lost more

than P108 million due to insider pilferage, malversation, overpricing and other
irregularities from 1986 to 1989.

IBC president Gil P. Balaguer uncovered the anomalies after "a long and
painstaking investigation" when he took over the television station in 1990.

Balaguer, in a statement, said the irregularities uncovered included the sale of

forged certificates of performance, non-remittance of sales collections, illegal and
unauthorized airing of movie advertisements, illegal lease of equipment to
"friendly" clients, exorbitant fees on in-house productions and abused overtime
charges by some employees.

Page 52 of 349
Balaguer, the fifth IBC president since 1986, easily detected the anomalies as he
has a vast experience in television management work.

A special investigative committee helped Balaguer uncover the anomalies at IBC,

which has resulted in the dismissal of an operations executive who sold forged
certificates of performance, a former supervisor who pocketed sales collections
and a station manager who did not remit payments on radio advertisements.
(Emphasis supplied)

In the Manila Bulletin, on July 19, 1992:5

Sequestered firm’s losses bared

The Intercontinental Broadcasting Corp. (IBC) 13, a sequestered firm, lost more
than P108 million for the period 1986-1989 due to pilferage, malversation, over-
pricing, and other irregularities perpetrated by a syndicate, according to Gil P.
Balaguer, IBC president, who took over the company in 1990.

He said the irregularities ranged from selling forged certificates of performance to

non-remittance of sales collections, illegal and unauthorized airing of movie
trailer advertisements, illegal leasing of electricity and machines to "friendly
clients," millions worth of undocumented transactions to movie suppliers,
exorbitant fees against in-house productions, and abused overtime charges by
certain employees.

IBC has had four presidents since 1986, Balaguer being the fifth.

A special probe committee that helped Balaguer said one dismissed executive
sold forged certificates of performance, a former supervisor pocketed IBC sales
collections, and some station managers did not remit payments on radio
advertisements.

The loose issuance of technical facilities orders practically leased the network’s
broadcast facilities to a "friendly client" for free.

Balaguer is credited with accelerating the network’s rank from number five in
1988 to number two or three under current ratings, despite the efforts of some
holdouts who tried to derail his administration. (Emphasis supplied)

In a letter dated July 20, 1992, petitioner urged respondents to confirm or deny if
he was the person alluded to in the news article as the operations executive of

Page 53 of 349
IBC-13 who was dismissed for selling forged certificates of performance.6 None
of the respondents replied to the letter.

On September 25, 1992, petitioner filed before the Regional Trial Court of
Quezon City a complaint for damages against Balaguer,7 which was later
amended by impleading IBC-13 as additional defendant.8

Petitioner claimed that respondents caused the publication of the subject news
articles which defamed him by falsely and maliciously referring to him as the IBC-
13 operations executive who sold forged certificates of performance.9 He alleged
that in causing these false and malicious publications, respondents violated
Articles 19, 20, 21, and 26 of the Civil Code.10

Balaguer denied that he had anything to do with the publications. 11 However, he

argued that the publications are not actionable because they are true and without
malice;12 are of legitimate public concern and interest because IBC-13 is under
sequestration; that petitioner is a newsworthy and public figure; 13 and that they
are privileged communication.14 Balaguer filed a counterclaim against petitioner
for alleged malicious filing of the civil case.15

IBC-13 also denied participation in the publications. It claimed that assuming

press statements were issued during a press conference, the same was done
solely by Balaguer without its authority or sanction.16 IBC-13 also filed a
counterclaim against petitioner17 and a cross-claim against Balaguer.18

On August 31, 1993, the Labor Arbiter rendered a Decision 19 finding petitioner’s
dismissal as illegal, which was affirmed by the National Labor Relations
Commission. The Commission, however, declared respondents to be acting in
good faith, hence, it deleted the award of moral and exemplary damages. On
December 6, 1994, the parties entered into a Compromise Agreement,20 with
IBC-13 proposing a scheme of payment for petitioner’s monetary claims, and
with IBC-13 and petitioner waiving any and all claims against each other arising
out of the labor case.

On October 29, 2003, the Regional Trial Court21 of Quezon City held that
petitioner is entitled to an award of damages,22 thus:

WHEREFORE, premises considered, judgment is rendered in favor of plaintiff

Francisco N. Villanueva and against defendants Balaguer and Intercontinental
Broadcasting Corporation (IBC-13).

Page 54 of 349
Accordingly, defendants are hereby ordered to pay the plaintiff jointly and
severally, as follows:

1) the sum of Five Hundred Thousand (P500,000.00) Pesos by way of

moral damages;
2) the sum of One Hundred Thousand (P100,000.00) Pesos as and by way
of exemplary damages;
3) the sum of Thirty Thousand (P30,000.00) Pesos by way of nominal
damages;
4) the sum of Ten Thousand (P10,000.00) Pesos by way of temperate or
moderate damages; and
5) the sum of One Hundred Thousand (P100,000.00) Pesos as and by way
of attorney’s fees.

With costs against defendants.

SO ORDERED.23

Respondents moved for reconsideration but it was denied.24 Hence, they

appealed to the Court of Appeals which rendered the herein assailed Decision on
August 10, 2007, disposing thus:

WHEREFORE, premises considered, the appeal is hereby GRANTED. The

October 29, 2003 Decision and the February 2, 2004 Resolution with Clarification
issued by the Regional Trial Court, Br. 89, National Capital Judicial Region,
Quezon City, are hereby REVERSED. The Complaint, the Counterclaim, and the
Cross-claim in Civil Case No. Q-92-13680 are hereby DISMISSED.

SO ORDERED.25

Petitioner’s motion for reconsideration was denied. Hence, the instant petition
raising the following issues:26

a) Does the failure of the addressee to respond to a letter containing

statements attributing to him commission of acts constituting actionable
wrong, hence, adverse to his interest, and of such nature as would call for
his reaction, reply, or comment if untrue, constitute his admission of said
statements, consequently, may be used in evidence against him?

b) Is the admission by a principal admissible against its agent? Is the

admission by a person jointly interested with a party admissible against the
latter?

Page 55 of 349
 c) Does the failure of an individual to disown the attribution to him by
newspaper publications, as the source of defamatory newspaper reports,
when he is free and very able to do so, constitute admission that he,
indeed, was the source of the said defamatory news reports?

The petition lacks merit.

As early as 1905, this Court has declared that it is the duty of the party seeking to
enforce a right to prove that their right actually exists. In varying language, our
Rules of Court, in speaking of burden of proof in civil cases, states that each
party must prove his own affirmative allegations and that the burden of proof lies
on the party who would be defeated if no evidence were given on either
side.27 Thus, in civil cases, the burden of proof is generally on the plaintiff, with
respect to his complaint.28

In proving his claim, petitioner relied on the July 20, 1992 letter, the newspaper
articles, and the alleged admission of respondents. Based on the above pieces of
evidence, the Court finds that petitioner was unable to discharge his burden of
proof. As such, the Court of Appeals properly dismissed the complaint for
damages.

The July 20, 1992 letter sent by petitioner to respondents reads as follows:29

20 July 1992

Mr. Virgilio Balaguer

Intercontinental Broadcasting Corporation
Broadcast City, Capitol Hills
Diliman, Quezon City

Dear Mr. Balaguer:

We write on behalf of our client, Mr. Francisco N. Villanueva.

You have caused to be published in the 18 July 1992 issue of The Philippine Star
and 19 July 1992 issue of Manila Bulletin, a news item wherein you stated that
you dismissed an Operations Executive because he "sold forged Certificate of
Performance". Our immediate impression is, you are referring to our client,
Francisco N. Villanueva, because he is the only Operations Executive in IBC,
Channel 13 you have illegally and despotically dismissed.

Page 56 of 349
We urge you, therefore, to inform us, within forty-eight (48) hours from your
receipt of this letter that the Operations Executive you referred to in your press
statement is not our client, Francisco N. Villanueva. We shall construe your
failure/refusal to reply as your unequivocal admission that you are, in fact,
actually referring to our client, Mr. Francisco N. Villanueva, as the operations
executive who "sold forged Certificate of Performance". Accordingly, we shall
immediately proceed to take appropriate criminal and civil court actions against
you without further notice.

Very truly yours,

(signed)
REX G. RICO

cc: Mr. Francisco N. Villanueva

Board of Administrators, IBC-13

Petitioner argues that by not responding to the above letter which expressly
urged them to reply if the statements therein contained are untrue, respondents
in effect admitted the matters stated therein, pursuant to the rule on admission by
silence in Sec. 32, Rule 130,30 and the disputable presumption that acquiescence
resulted from a belief that the thing acquiesced in was conformable to the law or
fact.31

Petitioner’s argument lacks merit. One cannot prove his claim by placing the
burden of proof on the other party. Indeed, "(a) man cannot make evidence for
himself by writing a letter containing the statements that he wishes to prove. He
does not make the letter evidence by sending it to the party against whom he
wishes to prove the facts [stated therein]. He no more can impose a duty to
answer a charge than he can impose a duty to pay by sending goods. Therefore
a failure to answer such adverse assertions in the absence of further
circumstances making an answer requisite or natural has no effect as an
admission."32

Moreover, the rule on admission by silence applies to adverse statements in

writing if the party was carrying on a mutual correspondence with the declarant.
However, if there was no such mutual correspondence, the rule is relaxed on the
theory that while the party would have immediately reacted by a denial if the
statements were orally made in his presence, such prompt response can
generally not be expected if the party still has to resort to a written reply.33

Page 57 of 349
In the same manner, we also cannot assume an admission by silence on the part
of Balaguer by virtue of his failure to protest or disclaim the attribution to him by
the newspapers that he is the source of the articles. As explained above, the rule
on admission by silence is relaxed when the statement is not made orally in
one’s presence or when one still has to resort to a written reply, or when there is
no mutual correspondence between the parties.

As for the publications themselves, newspaper articles purporting to state what

the defendant said are inadmissible against him, since he cannot be held
responsible for the writings of third persons.34 As correctly observed by the Court
of Appeals, "while the subject news items indicated that Balaguer was the source
of the columnists, proving that he truly made such statements is another
matter."35 Petitioner failed to prove that Balaguer did make such statements.

Notably, petitioner did not implead the editorial staff and the publisher of the
alleged defamatory articles.36 Contrary to petitioner’s assertion, he should have at
least presented the authors of the news articles as witnesses to prove his case
against respondents in the absence of an express admission by the latter that the
subject news articles have been caused by them.

Petitioner also claims that respondents have admitted that they held a press
conference and caused the publication of the news articles, based on the
following testimony of Balaguer:37

ATTY. JIMENEZ:

Okay, Let me ask another question. Now Mr. Balaguer this publication
referred to so called anomalies of 1986 to 1989 now how about the
termination.

A: 1991.

ATTY. JIMENEZ:

Yes.

WITNESS:

I think the termination of Mr. Villanueva has nothing to do with that press
statement release because the period that covers that report is from
specific date 1986 to 1989. (TSN, 07 November 2000, p. 19)

Page 58 of 349
Admissions, however, should be clear and unambiguous38 which can hardly be
said of Balaguer’s above testimony. If Balaguer intended to admit the allegation
that he conducted a press conference and caused the publication of the news
articles, he could have done so. Instead, Balaguer specifically denied these
allegations in paragraphs 4 and 5 of his Answer.39

Petitioner next argues that IBC-13’s Cross-Claim against Balaguer, in that:40

11. The acts complained of by the plaintiff were done solely by co-defendant
Balaguer.

Balaguer resorted to these things in his attempt to stave off his impending
removal from IBC.

is an admission by IBC-13, which is admissible against Balaguer pursuant to

Sec. 29, Rule 13041 as an admission by a co-partner or an agent.

Petitioner is mistaken. IBC-13’s cross-claim against Balaguer effectively created

an adverse interest between them. Hence, the admission of one defendant is not
admissible against his co-defendant. Besides, as already discussed, the alleged
acts imputed to Balaguer were never proven to have been committed, much less
maliciously, by Balaguer. Malice or bad faith implies a conscious and intentional
design to do a wrongful act for a dishonest purpose or moral obliquity. Such must
be substantiated by evidence.42

In sum, we find that petitioner failed to discharge his burden of proof. No

satisfactory evidence was presented to prove by preponderance of evidence that
respondents committed the acts imputed against them. As such, there is no more
need to discuss whether the assailed statements are defamatory. 1avvphi1

WHEREFORE, the petition is DENIED. The August 10, 2007 Decision of the
Court of Appeals in CA-G.R. CV No. 81657 reversing the October 29, 2003
Decision and February 2, 2004 Resolution of the Regional Trial Court of Quezon
City, Branch 89, finding petitioner entitled to damages, as well as the October 16,
2007 Resolution denying the motion for reconsideration, are AFFIRMED.

Page 59 of 349
G.R. No. 191696               April 10, 2013
ROGELIO DANTIS, Petitioner, 
vs.
JULIO MAGHINANG, JR., Respondent.
DECISION
MENDOZA, J.:

This is a petition for review on certiorari seeking to reverse and set aside the
January 25, 2010 Decision1 and the March 23, 2010 Resolution2 of the Court of
Appeals (CA). in CA-G.R. CV No. 85258, reversing the March 2, 2005
Decision3 of the Regional Trial Court, Branch 18, Malolos, Bulacan (RTC), in an
action for quieting of title and recovery of possession with damages.

The Facts

The case draws its origin from a complaint4 for quieting of title and recovery of
possession with damages filed by petitioner Rogelio Dantis (Rogelio) against
respondent Julio Maghinang, Jr. (Julio, Jr.) before the RTC, docketed as Civil
Case No. 280-M-2002. Rogelio alleged that he was the registered owner of a
parcel of land covered by Transfer Certificate of Title (TCT) No. T-125918, with
an area of 5,657 square meters, located in Sta. Rita, San Miguel, Bulacan; that
he acquired ownership of the property through a deed of extrajudicial partition of
the estate of his deceased father, Emilio Dantis (Emilio), dated December 22,
1993; that he had been paying the realty taxes on the said property; that Julio, Jr.
occupied and built a house on a portion of his property without any right at all;
that demands were made upon Julio, Jr. that he vacate the premises but the
same fell on deaf ears; and that the acts of Julio, Jr. had created a cloud of doubt
over his title and right of possession of his property. He, thus, prayed that
judgment be rendered declaring him to be the true and real owner of the parcel of
land covered by TCT No. T-125918; ordering Julio, Jr. to deliver the possession
of that portion of the land he was occupying; and directing Julio, Jr. to pay rentals
from October 2000 and attorney’s fees of ₱100,000.00.

He added that he was constrained to institute an ejectment suit against Julio, Jr.
before the Municipal Trial Court of San Miguel, Bulacan (MTC), but the complaint
was dismissed for lack of jurisdiction and lack of cause of action.

In his Answer,5 Julio, Jr. denied the material allegations of the complaint. By way
of an affirmative defense, he claimed that he was the actual owner of the 352
square meters (subject lot) of the land covered by TCT No. T-125918 where he
was living; that he had been in open and continuous possession of the property
for almost thirty (30) years; the subject lot was once tenanted by his ancestral

Page 60 of 349
relatives until it was sold by Rogelio’s father, Emilio, to his father, Julio
Maghinang, Sr. (Julio, Sr.); that later, he succeeded to the ownership of the
subject lot after his father died on March 10, 1968; and that he was entitled to a
separate registration of the subject lot on the basis of the documentary evidence
of sale and his open and uninterrupted possession of the property.

As synthesized by the RTC from the respective testimonies of the principal

witnesses, their diametrically opposed positions are as follows:

Plaintiff Rogelio Dantis testified that he inherited 5,657 square meters of land,
identified as Lot 6-D-1 of subdivision plan Psd-031421-054315, located at Sta.
Rita, San Miguel, Bulacan, through an Extrajudicial Partition of Estate of Emilio
Dantis, executed in December 1993 which land was titled later on under his
name, Rogelio Dantis, married to Victoria Payawal, as shown by copy of Transfer
Certificate of Title No. T-125918, issued by the Register of Deeds of Bulacan on
September 29, 1998, declared for taxation purposes as Tax Declaration with
ARP No. C20-22-043-07-046. According to him, defendant and his predecessor-
in-interest built the house located on said lot. When he first saw it, it was only a
small hut but when he was about 60 years old, he told defendant not to build a
bigger house thereon because he would need the land and defendant would
have to vacate the land. Plaintiff, however, has not been in physical possession
of the premises.

Defendant Julio Maghinang, Jr., presented by plaintiff as adverse witness,

testified that he has no title over the property he is occupying. He has not paid
realty taxes thereon. He has not paid any rental to anybody. He is occupying
about 352 square meters of the lot. He presented an affidavit executed on
September 3, 1953 by Ignacio Dantis, grandfather of Rogelio Dantis and the
father of Emilio Dantis. The latter was, in turn, the father of Rogelio Dantis.

The affidavit, according to affiant Ignacio Dantis, alleged that Emilio Dantis
agreed to sell 352 square meters of the lot to Julio Maghinang on installment.
Defendant was then 11 years old in 1952.

Defendant Julio Maghinang, Jr. likewise testified for the defendant’s case as
follows: He owns that house located at Sta. Rita, San Miguel, Bulacan, on a 352
square meter lot. He could not say that he is the owner because there is still
question about the lot. He claimed that his father, Julio Maghinang (Sr.), bought
the said lot from the parents of Rogelio Dantis. He admitted that the affidavit was
not signed by the alleged vendor, Emilio Dantis, the father of Rogelio Dantis. The
receipt he presented was admittedly a mere photocopy. He spent ₱50,000.00 as

Page 61 of 349
attorney’s fees. Since 1953, he has not declared the property as his nor paid the
taxes thereon because there is a problem.6

On March 2, 2005, the RTC rendered its decision declaring Rogelio as the true
owner of the entire 5,657-square meter lot located in Sta. Rita, San Miguel,
Bulacan, as evidenced by his TCT over the same. The RTC did not lend any
probative value on the documentary evidence of sale adduced by Julio, Jr.
consisting of: 1) an affidavit allegedly executed by Ignacio Dantis (Ignacio),
Rogelio’s grandfather, whereby said affiant attested, among others, to the sale of
the subject lot made by his son, Emilio, to Julio, Sr. (Exhibit "3")7; and 2) an
undated handwritten receipt of initial downpayment in the amount of ₱100.00
supposedly issued by Emilio to Julio, Sr. in connection with the sale of the
subject lot (Exhibit "4").8 The RTC ruled that even if these documents were
adjudged as competent evidence, still, they would only serve as proofs that the
purchase price for the subject lot had not yet been completely paid and, hence,
Rogelio was not duty-bound to deliver the property to Julio, Jr. The RTC found
Julio, Jr. to be a mere possessor by tolerance. The dispositive portion of the RTC
decision reads:

WHEREFORE, Judgment is hereby rendered as follows:

1. quieting the title and removing whatever cloud over the title on the parcel of
land, with area of 5,647 sq. meters, more or less, located at Sta. Rita, San
Miguel, Bulacan, covered by Transfer Certificate of Title No. T-125918 issued by
the Register of Deeds of Bulacan in the name of "Rogelio Dantis, married to
Victoria Payawal";

2. declaring that Rogelio Dantis, married to Victoria Payawal, is the true and
lawful owner of the aforementioned real property; and

3. ordering defendant Julio Maghinang, Jr. and all persons claiming under him to
peacefully vacate the said real property and surrender the possession thereof to
plaintiff or latter’s successors-in-interest.

No pronouncement as to costs in this instance.

SO ORDERED.9

Julio, Jr. moved for a reconsideration of the March 2, 2005 Decision, but the
motion was denied by the RTC in its May 3, 2005 Order.10 Feeling aggrieved,
Julio, Jr. appealed the decision to the CA.

Page 62 of 349
On January 25, 2010, the CA rendered the assailed decision in CA-G.R. CV NO.
85258, finding the appeal to be impressed with merit. It held that Exhibit "4" was
an indubitable proof of the sale of the 352-square meter lot between Emilio and
Julio, Sr. It also ruled that the partial payment of the purchase price, coupled with
the delivery of the res, gave efficacy to the oral sale and brought it outside the
operation of the statute of frauds. Finally, the court a quo declared that Julio, Jr.
and his predecessors-in-interest had an equitable claim over the subject lot
which imposed on Rogelio and his predecessors-in-interest a personal duty to
convey what had been sold after full payment of the selling price. The decretal
portion of the CA decision reads:

IN VIEW OF THE FOREGOING, the decision appealed from is reversed. The

heirs of Julio Maghinang Jr. are declared the owners of the 352-square meter
portion of the lot covered by TCT No. T-125968 where the residence of
defendant Julio Maghinang is located, and the plaintiff is ordered to reconvey the
aforesaid portion to the aforesaid heirs, subject to partition by agreement or
action to determine the exact metes and bounds and without prejudice to any
legal remedy that the plaintiff may take with respect to the unpaid balance of the
price.

SO ORDERED.11

The motion for reconsideration12 filed by Rogelio was denied by the CA in its

March 23, 2010 Resolution. Unfazed, he filed this petition for review on certiorari
before this Court.

Issues:

The fundamental question for resolution is whether there is a perfected contract

of sale between Emilio and Julio, Sr. The determination of this issue will settle
the rightful ownership of the subject lot.

Rogelio submits that Exhibit "3" and Exhibit "4" are devoid of evidentiary value
and, hence, deserve scant consideration. He stresses that Exhibit "4" is
inadmissible in evidence being a mere photocopy, and the existence and due
execution thereof had not been established. He argues that even if Exhibit "4"
would be considered as competent and admissible evidence, still, it would not be
an adequate proof of the existence of the alleged oral contract of sale because it
failed to provide a description of the subject lot, including its metes and bounds,
as well as its full price or consideration.13

Page 63 of 349
Rogelio argues that while reconveyance may be availed of by the owner of a real
property wrongfully included in the certificate of title of another, the remedy is not
obtainable herein since he is a transferee in good faith, having acquired the land
covered by TCT No. T-125918, through a Deed of Extrajudicial Partition of
Estate.14 He asserts that he could not be considered a trustee as he was not privy
to Exhibit "4." In any event, he theorizes that the action for reconveyance on the
ground of implied trust had already prescribed since more than 10 years had
lapsed since the execution of Exhibit "4" in 1953. It is the petitioner’s stance that
Julio, Jr. did not acquire ownership over the subject lot by acquisitive prescription
contending that prescription does not lie against a real property covered by a
Torrens title. He opines that his certificate of title to the subject lot cannot be
collaterally attacked because a Torrens title is indefeasible and must be
respected unless challenged in a direct proceeding.15

The Court’s Ruling

In the case at bench, the CA and the RTC reached different conclusions on the
question of whether or not there was an oral contract of sale. The RTC ruled that
Rogelio Dantis was the sole and rightful owner of the parcel of land covered by
TCT No. T-125918 and that no oral contract of sale was entered into between
Emilio Dantis and Julio Maghinang, Sr. involving the 352-square meter portion of
the said property. The CA was of the opposite view. The determination of
whether there existed an oral contract of sale is essentially a question of fact.

In petitions for review under Rule 45, the Court, as a general rule, does not
venture to re-examine the evidence presented by the contending parties during
the trial of the case considering that it is not a trier of facts and the findings of fact
of the CA are conclusive and binding upon this Court. The rule, however, admits
of several exceptions. One of which is when the findings of the CA are contrary
to those of the trial court.16 Considering the incongruent factual conclusions of the
CA and the RTC, this Court is constrained to reassess the factual circumstances
of the case and reevaluate them in the interest of justice.

The petition is meritorious.

It is an age-old rule in civil cases that he who alleges a fact has the burden of
proving it and a mere allegation is not evidence.17 After carefully sifting through
the evidence on record, the Court finds that Rogelio was able to establish a
prima facie case in his favor tending to show his exclusive ownership of the
parcel of land under TCT No. T-125918 with an area of 5,657 square meters,
which included the 352-square meter subject lot. From the records, it appears
that TCT No. T-125918 is a derivative of TCT No. T-256228, which covered a

Page 64 of 349
bigger area of land measuring 30,000 square meters registered in the name of
Emilio Dantis; that Emilio died intestate on November 13, 1952; that Emilio’s five
heirs, including Rogelio, executed an extra-judicial partition of estate on
December 22, 1993 and divided among themselves specific portions of the
property covered by TCT No. T-256228, which were already set apart by metes
and bounds; that the land known as Lot 6-D-1 of the subdivision plan Psd-
031421-054315 with an area of 5,657 sq. m. went to Rogelio, the property now
covered by TCT No. T-125918; and that the property was declared for realty tax
purpose in the name of Rogelio for which a tax declaration was issued in his
name; and that the same had not been transferred to anyone else since its
issuance.

In light of Rogelio’s outright denial of the oral sale together with his insistence of
ownership over the subject lot, it behooved upon Julio, Jr. to contravene the
former’s claim and convince the court that he had a valid defense. The burden of
evidence shifted to Julio, Jr. to prove that his father bought the subject lot from
Emilio Dantis. In Jison v. Court of Appeals,18 the Court held:

Simply put, he who alleges the affirmative of the issue has the burden of proof,
and upon the plaintiff in a civil case, the burden of proof never parts. However, in
the course of trial in a civil case, once plaintiff makes out a prima facie case in his
favor, the duty or the burden of evidence shifts to defendant to controvert
plaintiff’s prima facie case, otherwise, a verdict must be returned in favor of
plaintiff. Moreover, in civil cases, the party having the burden of proof must
produce a preponderance of evidence thereon, with plaintiff having to rely on the
strength of his own evidence and not upon the weakness of the defendant’s. The
concept of "preponderance of evidence" refers to evidence which is of greater
weight, or more convincing, that which is offered in opposition to it; at bottom, it
means probability of truth.19

Julio, Jr. failed to discharge this burden. His pieces of evidence, Exhibit "3" and
Exhibit "4," cannot prevail over the array of documentary and testimonial
evidence that were adduced by Rogelio. The totality of Julio, Jr.’s evidence
leaves much to be desired.

To begin with, Exhibit "3," the affidavit of Ignacio, is hearsay evidence and, thus,
cannot be accorded any evidentiary weight. Evidence is hearsay when its
probative force depends on the competency and credibility of some persons
other than the witness by whom it is sought to be produced. The exclusion of
hearsay evidence is anchored on three reasons: 1) absence of cross-
examination; 2) absence of demeanor evidence; and 3) absence of oath.20

Page 65 of 349
Jurisprudence dictates that an affidavit is merely hearsay evidence where its
affiant/maker did not take the witness stand.21 The sworn statement of Ignacio is
of this kind. The affidavit was not identified and its averments were not affirmed
by affiant Ignacio. Accordingly, Exhibit "3" must be excluded from the judicial
proceedings being an inadmissible hearsay evidence. It cannot be deemed a
declaration against interest for the matter to be considered as an exception to the
hearsay rule because the declarant was not the seller (Emilio), but his father
(Ignacio). Exhibit "4," on the other hand, is considered secondary evidence being
a mere photocopy which, in this case, cannot be admitted to prove the contents
of the purported undated handwritten receipt. The best evidence rule requires
that the highest available degree of proof must be produced. For documentary
evidence, the contents of a document are best proved by the production of the
document itself to the exclusion of secondary or substitutionary evidence,
pursuant to Rule 130, Section 322.

A secondary evidence is admissible only upon compliance with Rule 130,

Section 5, which states that: when the original has been lost or destroyed, or
cannot be produced in court, the offeror, upon proof of its execution or existence
and the cause of its unavailability without bad faith on his part, may prove its
contents by a copy, or by a recital of its contents in some authentic document, or
by the testimony of witnesses in the order stated. Accordingly, the offeror of the
secondary evidence is burdened to satisfactorily prove the predicates thereof,
namely: (1) the execution or existence of the original; (2) the loss and destruction
of the original or its non-production in court; and (3) the unavailability of the
original is not due to bad faith on the part of the proponent/offeror. Proof of the
due execution of the document and its subsequent loss would constitute the
basis for the introduction of secondary evidence.23 In MCC Industrial Sales
Corporation v. Ssangyong Corporation,24 it was held that where the missing
document is the foundation of the action, more strictness in proof is required than
where the document is only collaterally involved.

Guided by these norms, the Court holds that Julio, Jr. failed to prove the due
execution of the original of Exhibit "4" as well as its subsequent loss. A nexus of
logically related circumstance rendered Julio, Jr.’s evidence highly suspect. Also,
his testimony was riddled with improbabilities and contradictions which tend to
erode his credibility and raise doubt on the veracity of his evidence.

First, the claim of Julio, Jr. that Emilio affixed his signature on the original of
Exhibit "4" in 1953 is highly improbable because record shows that Emilio died
even before that year, specifically, on November 13, 1952. Excerpts from Julio,
Jr.’s testimony relative to this matter are as follows:

Page 66 of 349
Atty. Vicente Millora

(On Cross-examination)

Q: You don’t remember how old you were when this according to you you
witnessed Emilio Dantis signed this?

A: Eleven years old, Sir.

Q: So that was 1953?

A: Yes, Sir.

Q: And you were then…?

A: I was born October 1942, Sir.

Q: You were eleven (11) years old?

A: Yes, Sir.

Q: And you mean to say that you witnessed the signing allegedly of the original
of Exhibit "4" when you were eleven (11) years old?

A: Yes, Sir.

Q: And you remember what was signed in this receipt. From your memory can
you tell the title of this Exhibit "4"?

A: What I can say that it is a Sale, Sir.

Q: So, when you said that you witnessed an alleged sale you are referring to
Exhibit "4"?

A: Yes, Sir.25 (Emphasis supplied)

Second, Julio, Jr.’s testimony pertinent to the alleged loss of the original of
Exhibit "4" is laden with inconsistencies that detract from his credibility. His
testimony bears the earmarks of falsehood and, hence, not reliable. Julio, Jr.
testified in this wise:

Atty. Roldan Villacorta

Page 67 of 349
(On Direct examination)

Q: Mr. Witness, I noticed that this document marked as Exhibit "4" is only a
photocopy, where is the original of this document?

A: The original was with the safekeeping of my parents because of the lapse of
time the original was misplaced, Sir.26

The above testimony of Julio, Jr. tends to give the impression that the original of
the document was lost while it was in the possession of his parents. During
cross-examination, however, he testified that it was lost while it was in his
possession.

Atty. Vicente Millora

(On Cross-examination)

Q: x x x Where did you keep that document?

A: I was the one keeping that document because I live in different places, [the
said] it was lost or misplaced, Sir.

Q: In other words, it was lost while the same was in your possession??

A: Yes, Sir.27 (Emphasis supplied)

Still, later, Julio, Jr. claimed that his sister was the one responsible for the loss of
the original of Exhibit "4" after borrowing the same from him. Atty. Vicente Millora

(On Cross-examination)

Q: So, who is your sister to whom you gave the original?

A: Benedicta Laya, Sir.

Q: In other words now, you did not lost the document or the original of Exhibit "4"
but you gave it to your sister, am I correct?

A: I just lent to her the original copy, Sir.

Q: So, you lent this original of Exhibit "4" to your sister and your sister never
returned the same to you?

Page 68 of 349
A: Yes, Sir, because it was lost, that was the only one left in her custody.

Interpreter:

Witness referring to the xerox copy.

Atty. Vicente Millora

Q: In other words, it was your sister who lost the original, is that correct?

A: Yes, Sir, when I lent the original.28 (Emphasis supplied)

The Court also notes the confused narration of Julio, Jr. regarding the last time
he saw the original of Exhibit "4."

Atty. Vicente Millora

(On Cross-examination)

Q: And when did you last see the original?

A: When my mother died in 1993 that was the last time I tried to see the original
of the document after her interment, Sir.

Q: Where did you see this document?

A: From the safekeeping of my mother, Sir.29

xxxx

Q: When did you get this Exhibit "4" now, the photocopy from your sister?

A: When the interment of my mother in September 1993, Sir.

Q: Now, let us reform. Which one did you get after the interment of your mother,
this Exhibit "4" or the original?

A: I asked that xerox copy because I have lost the original and I could not find the
same, Sir.

Q: So, from the safe of your mother after her interment, what used you found and
got this Exhibit "4"?

Page 69 of 349
A: Yes, Sir, from my sister.

Q: So, not from your mother safe?

A: The original was taken from the safe of my mother, Sir.

Q: So after your mother’s death you never saw the original?

A: I did not see it anymore because the original was lost before she died,
Sir.30 (Underscoring supplied)

Third, it is quite strange that two receipts were prepared for the initial payment of
₱100.00 in connection with the sale of the subject lot. The Court notes that the
contents of Exhibit "4" were similar to those of Annex "A" 31 of Julio, Jr.’s Answer,
dated June 9, 2002. Annex "A," however, was typewritten and the name of the
recipient indicated therein was a certain Cornelio A. Dantis, whose identity and
participation in the alleged sale was never explained.

Fourth, apart from the lone testimony of Julio, Jr., no other witness who knew or
read Exhibit "4," much less saw it executed, was presented. In the absence of
any shred of corroborative evidence, the Court cannot help but entertain doubts
on the truthfulness of Julio, Jr.’s naked assertion.

Assuming, in gratia argumenti, that Exhibit "4" is admissible in evidence, there

will still be no valid and perfected oral contract for failure of Julio, Jr. to prove the
concurrence of the essential requisites of a contract of sale by adequate and
competent evidence.

By the contract of sale, one of the contracting parties obligates himself to transfer
the ownership of, and to deliver, a determinate thing, and the other to pay
therefor a price certain in money or its equivalent.32 A contract of sale is a
consensual contract and, thus, is perfected by mere consent which is manifested
by the meeting of the offer and the acceptance upon the thing and the cause
which are to constitute the contract.33 Until the contract of sale is perfected, it
cannot, as an independent source of obligation, serve as a binding juridical
relation between the parties.34 The essential elements of a contract of sale are: a)
consent or meeting of the minds, that is, consent to transfer ownership in
exchange for the price; b) determinate subject matter; and c) price certain in
money or its equivalent.35 The absence of any of the essential elements shall
negate the existence of a perfected contract of sale.36

Page 70 of 349
Seemingly, Julio, Jr. wanted to prove the sale by a receipt when it should be the
receipt that should further corroborate the existence of the sale. At best, his
testimony only alleges but does not prove the existence of the verbal agreement.
Julio, Jr. miserably failed to establish by preponderance of evidence that there
was a meeting of the minds of the parties as to the subject matter and the
purchase price.

The chief evidence of Julio, Jr. to substantiate the existence of the oral contract
of sale is Exhibit "4." For a better understanding and resolution of the issue at
hand, Exhibit "4" is being reproduced here:

Alamin ng sino mang

Makababasa

Akong si Emilio Dantis may sapat na Gulang may asawa naninirahan sa Sta Rita
San Miguel Bul. ay kusang nagsasasay ng sumosunod.

Na ako Tumanggap Kay Julio Maghinang ng ₱100.00 peso cuartang Pilipino,

bilang paunang bayad sa Lupa niyang nilote sa akin 400 apat na raan mahigit na
metro cudrado.

Testigo Tumangap,

Emilio a Dantis

A perusal of the above document would readily show that it does not specify a
determinate subject matter. Nowhere does it provide a description of the property
subject of the sale, including its metes and bounds, as well as its total area. The
Court notes that while Julio, Jr. testified that the land subject of the sale
consisted of 352 square meters, Exhibit "4," however, states that it’s more than
400 square meters. Moreover, Exhibit "4" does not categorically declare the price
certain in money. Neither does it state the mode of payment of the purchase
price and the period for its payment.

In Swedish Match, AB v. Court of Appeals,37 the Court ruled that the manner of

payment of the purchase price was an essential element before a valid and
binding contract of sale could exist. Albeit the Civil Code does not explicitly
provide that the minds of the contracting parties must also meet on the terms or
manner of payment of the price, the same is needed, otherwise, there is no
sale.38 An agreement anent the manner of payment goes into the price so much
so that a disagreement on the manner of payment is tantamount to a failure to

Page 71 of 349
agree on the price.39 Further, in Velasco v. Court of Appeals,40 where the parties
already agreed on the object of sale and on the purchase price, but not on how
and when the downpayment and the installment payments were to be paid, this
Court ruled:

Such being the situation, it cannot, therefore, be said that a definite and firm
sales agreement between the parties had been perfected over the lot in question.
Indeed, this Court has already ruled before that a definite agreement on the
manner of payment of the purchase price is an essential element in the formation
of a binding and enforceable contract of sale. The fact, therefore, that the
petitioners delivered to the respondent the sum of ₱10,000.00 as part of the
down-payment that they had to pay cannot be considered as sufficient proof of
the perfection of any purchase and sale agreement between the parties herein
under Art. 1482 of the new Civil Code, as the petitioners themselves admit that
some essential matter - the terms of payment - still had to be mutually
covenanted.41

The CA held that partial performance of the contract of sale- giving of a

downpayment coupled with the delivery of the res - took the oral contract out of
the scope of the Statute of Frauds. This conclusion arose from its erroneous
finding that there was a perfected contract of sale. The above disquisition,
however, shows that there was none. There is, therefore, no basis for the
application of the Statute of Frauds. The application of the Statute of Frauds
presupposes the existence of a perfected contract.42 As to the delivery of the res,
it does not appear to be a voluntary one pursuant to the purported sale. If Julio,
Jr. happened to be there, it was because his ancestors tenanted the land. It must
be noted that when Julio, Jr. built his house, Rogelio protested.

WHEREFORE, the petition is GRANTED. The assailed January 25, 2010

Decision and the March 23, 2010 Resolution of the Court Appeals, in CA-G.R.
CV No. 85258, are REVERSED and SET ASIDE. The March 2, 2005 Decision of
the Regional Trial Court of Malolos, Bulacan, Branch 18, in Civil Case No. 280-
M-2002, is REINSTATED.

Page 72 of 349
G.R. No. 146710-15      March 2, 2001
JOSEPH E. ESTRADA, petitioner, 
vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES,
VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE
PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA,
ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondent.
----------------------------------------
G.R. No. 146738      March 2, 2001
JOSEPH E. ESTRADA, petitioner, 
vs.
GLORIA MACAPAGAL-ARROYO, respondent.
PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph
Ejercito Estrada alleges that he is the President on leave while respondent Gloria
Macapagal-Arroyo claims she is the President. The warring personalities are
important enough but more transcendental are the constitutional issues
embedded on the parties' dispute. While the significant issues are many, the
jugular issue involves the relationship between the ruler and the ruled in a
democracy, Philippine style.

First, we take a view of the panorama of events that precipitated the crisis in the
office of the President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected
President while respondent Gloria Macapagal-Arroyo was elected Vice-
President. Some ten (10) million Filipinos voted for the petitioner believing he
would rescue them from life's adversity. Both petitioner and the respondent were
to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of
problems that slowly but surely eroded his popularity. His sharp descent from
power started on October 4, 2000. Ilocos Sur Governor, Luis "Chavit" Singson, a
longtime friend of the petitioner, went on air and accused the petitioner, his family
and friends of receiving millions of pesos from jueteng lords.1

The exposẻ immediately ignited reactions of rage. The next day, October 5,
2000, Senator Teofisto Guingona, Jr., then the Senate Minority Leader, took the
floor and delivered a fiery privilege speech entitled "I Accuse." He accused the
petitioner of receiving some P220 million in jueteng money from Governor
Singson from November 1998 to August 2000. He also charged that the

Page 73 of 349
petitioner took from Governor Singson P70 million on excise tax on cigarettes
intended for Ilocos Sur. The privilege speech was referred by then Senate
President Franklin Drilon, to the Blue Ribbon Committee (then headed by
Senator Aquilino Pimentel) and the Committee on Justice (then headed by
Senator Renato Cayetano) for joint investigation.2

The House of Representatives did no less. The House Committee on Public

Order and Security, then headed by Representative Roilo Golez, decided to
investigate the exposẻ of Governor Singson. On the other hand, Representatives
Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the
move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop
Jaime Cardinal Sin issued a pastoral statement in behalf of the Presbyteral
Council of the Archdiocese of Manila, asking petitioner to step down from the
presidency as he had lost the moral authority to govern.3 Two days later or on
October 13, the Catholic Bishops Conference of the Philippines joined the cry for
the resignation of the petitioner.4 Four days later, or on October 17, former
President Corazon C. Aquino also demanded that the petitioner take the
"supreme self-sacrifice" of resignation.5 Former President Fidel Ramos also
joined the chorus. Early on, or on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare and Services 6 and later asked for
petitioner's resignation.7 However, petitioner strenuously held on to his office and
refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members
of the Council of Senior Economic Advisers, resigned. They were Jaime Augusto
Zobel de Ayala, former Prime Minister Cesar Virata, former Senator Vicente
Paterno and Washington Sycip.8 On November 2, Secretary Mar Roxas II also
resigned from the Department of Trade and Industry.9 On November 3, Senate
President Franklin Drilon, and House Speaker Manuel Villar, together with some
47 representatives defected from the ruling coalition, Lapian ng Masang
Pilipino.10

The month of November ended with a big bang. In a tumultuous session on

November 13, House Speaker Villar transmitted the Articles of
Impeachment11 signed by 115 representatives, or more than 1/3 of all the
members of the House of Representatives to the Senate. This caused political
convulsions in both houses of Congress. Senator Drilon was replaced by Senator
Pimentel as Senate President. Speaker Villar was unseated by Representative
Fuentebella.12 On November 20, the Senate formally opened the impeachment

Page 74 of 349
trial of the petitioner. Twenty-one (21) senators took their oath as judges with
Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13

The political temperature rose despite the cold December. On December 7, the
impeachment trial started.14 The battle royale was fought by some of the marquee
names in the legal profession. Standing as prosecutors were then House Minority
Floor Leader Feliciano Belmonte and Representatives Joker Arroyo, Wigberto
Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan
Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They were
assisted by a battery of private prosecutors led by now Secretary of Justice
Hernando Perez and now Solicitor General Simeon Marcelo. Serving as defense
counsel were former Chief Justice Andres Narvasa, former Solicitor General and
Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose
Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried
Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered
by live TV and during its course enjoyed the highest viewing rating. Its high and
low points were the constant conversational piece of the chattering classes. The
dramatic point of the December hearings was the testimony of Clarissa Ocampo,
senior vice president of Equitable-PCI Bank. She testified that she was one foot
away from petitioner Estrada when he affixed the signature "Jose Velarde" on
documents involving a P500 million investment agreement with their bank on
February 4, 2000.15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit
of Christmas. When it resumed on January 2, 2001, more bombshells were
exploded by the prosecution. On January 11, Atty. Edgardo Espiritu who served
as petitioner's Secretary of Finance took the witness stand. He alleged that the
petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was
facing charges of insider trading.16 Then came the fateful day of January 16,
when by a vote of 11-1017 the senator-judges ruled against the opening of the
second envelope which allegedly contained evidence showing that petitioner held
P3.3 billion in a secret bank account under the name "Jose Velarde." The public
and private prosecutors walked out in protest of the ruling. In disgust, Senator
Pimentel resigned as Senate President.18 The ruling made at 10:00 p.m. was met
by a spontaneous outburst of anger that hit the streets of the metropolis. By
midnight, thousands had assembled at the EDSA Shrine and speeches full of
sulphur were delivered against the petitioner and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella

tendering their collective resignation. They also filed their Manifestation of
Withdrawal of Appearance with the impeachment tribunal. 19Senator Raul Roco

Page 75 of 349
quickly moved for the indefinite postponement of the impeachment proceedings
until the House of Representatives shall have resolved the issue of resignation of
the public prosecutors. Chief Justice Davide granted the motion.20

January 18 saw the high velocity intensification of the call for petitioner's
resignation. A 10-kilometer line of people holding lighted candles formed a
human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati City
to the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's
resignation. Students and teachers walked out of their classes in Metro Manila to
show their concordance. Speakers in the continuing rallies at the EDSA Shrine,
all masters of the physics of persuasion, attracted more and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20
p.m., the petitioner informed Executive Secretary Edgardo Angara that General
Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines, had
defected. At 2:30 p.m., petitioner agreed to the holding of a snap election for
President where he would not be a candidate. It did not diffuse the growing crisis.
At 3:00 p.m., Secretary of National Defense Orlando Mercado and General
Reyes, together with the chiefs of all the armed services went to the EDSA
Shrine.22 In the presence of former Presidents Aquino and Ramos and hundreds
of thousands of cheering demonstrators, General Reyes declared that "on behalf
of Your Armed Forces, the 130,000 strong members of the Armed Forces, we
wish to announce that we are withdrawing our support to this government." 23 A
little later, PNP Chief, Director General Panfilo Lacson and the major service
commanders gave a similar stunning announcement.24 Some Cabinet
secretaries, undersecretaries, assistant secretaries, and bureau chiefs quickly
resigned from their posts.25 Rallies for the resignation of the petitioner exploded in
various parts of the country. To stem the tide of rage, petitioner announced he
was ordering his lawyers to agree to the opening of the highly controversial
second envelope.26There was no turning back the tide. The tide had become a
tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of
negotiations for the peaceful and orderly transfer of power started at
Malacañang'' Mabini Hall, Office of the Executive Secretary. Secretary Edgardo
Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser
Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez,
head of the Presidential Management Staff, negotiated for the petitioner.
Respondent Arroyo was represented by now Executive Secretary Renato de
Villa, now Secretary of Finance Alberto Romulo and now Secretary of Justice
Hernando Perez.27 Outside the palace, there was a brief encounter at Mendiola

Page 76 of 349
between pro and anti-Estrada protesters which resulted in stone-throwing and
caused minor injuries. The negotiations consumed all morning until the news
broke out that Chief Justice Davide would administer the oath to respondent
Arroyo at high noon at the EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent
Arroyo as President of the Philippines.28 At 2:30 p.m., petitioner and his family
hurriedly left Malacañang Palace.29 He issued the following press statement:30

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took

her oath as President of the Republic of the Philippines. While along with
many other legal minds of our country, I have strong and serious doubts
about the legality and constitutionality of her proclamation as President, I
do not wish to be a factor that will prevent the restoration of unity and order
in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the
presidency of this country, for the sake of peace and in order to begin the
healing process of our nation. I leave the Palace of our people with
gratitude for the opportunities given to me for service to our people. I will
not shirk from any future challenges that may come ahead in the same
service of our country.

I call on all my supporters and followers to join me in to promotion of a

constructive national spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following
letter:31

"Sir:

Page 77 of 349
 By virtue of the provisions of Section 11, Article VII of the Constitution, I
am hereby transmitting this declaration that I am unable to exercise the
powers and duties of my office. By operation of law and the Constitution,
the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on
January 20.23 Another copy was transmitted to Senate President Pimentel on the
same day although it was received only at 9:00 p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately
discharged the powers the duties of the Presidency. On the same day, this Court
issued the following Resolution in Administrative Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria

Macapagal-Arroyo to Take her Oath of Office as President of the Republic
of the Philippines before the Chief Justice — Acting on the urgent request
of Vice President Gloria Macapagal-Arroyo to be sworn in as President of
the Republic of the Philippines, addressed to the Chief Justice and
confirmed by a letter to the Court, dated January 20, 2001, which request
was treated as an administrative matter, the court Resolve unanimously to
confirm the authority given by the twelve (12) members of the Court then
present to the Chief Justice on January 20, 2001 to administer the oath of
office of Vice President Gloria Macapagal-Arroyo as President of the
Philippines, at noon of January 20, 2001. 1âwphi1.nêt

This resolution is without prejudice to the disposition of any justiciable case

that may be filed by a proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors

and special envoys.34 Recognition of respondent Arroyo's government by foreign
governments swiftly followed. On January 23, in a reception or vin d' honneur at
Malacañang, led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio
Franco, more than a hundred foreign diplomats recognized the government of
respondent Arroyo.35 US President George W. Bush gave the respondent a
telephone call from the White House conveying US recognition of her
government.36

On January 24, Representative Feliciano Belmonte was elected new Speaker of

the House of Representatives.37The House then passed Resolution No. 175
"expressing the full support of the House of Representatives to the administration

Page 78 of 349
of Her Excellency, Gloria Macapagal-Arroyo, President of the Philippines." 38 It
also approved Resolution No. 176 "expressing the support of the House of
Representatives to the assumption into office by Vice President Gloria
Macapagal-Arroyo as President of the Republic of the Philippines, extending its
congratulations and expressing its support for her administration as a partner in
the attainment of the nation's goals under the Constitution."39

On January 26, the respondent signed into law the Solid Waste Management
Act.40 A few days later, she also signed into law the Political Advertising ban and
Fair Election Practices Act.41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as

her Vice President.42 The next day, February 7, the Senate adopted Resolution
No. 82 confirming the nomination of Senator Guingona, Jr.43Senators Miriam
Defensor-Santiago, Juan Ponce Enrile, and John Osmena voted "yes" with
reservations, citing as reason therefor the pending challenge on the legitimacy of
respondent Arroyo's presidency before the Supreme Court. Senators Teresa
Aquino-Oreta and Robert Barbers were absent.44 The House of Representatives
also approved Senator Guingona's nomination in Resolution No. 178.45 Senator
Guingona, Jr. took his oath as Vice President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the

impeachment court is functus officio and has been terminated.47 Senator Miriam
Defensor-Santiago stated "for the record" that she voted against the closure of
the impeachment court on the grounds that the Senate had failed to decide on
the impeachment case and that the resolution left open the question of whether
Estrada was still qualified to run for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public

acceptance rating jacked up from 16% on January 20, 2001 to 38% on January
26, 2001.49 In another survey conducted by the ABS-CBN/SWS from February 2-
7, 2001, results showed that 61% of the Filipinos nationwide accepted President
Arroyo as replacement of petitioner Estrada. The survey also revealed that
President Arroyo is accepted by 60% in Metro Manila, by also 60% in the
balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating
increased to 52%. Her presidency is accepted by majorities in all social classes:
58% in the ABC or middle-to-upper classes, 64% in the D or mass class, and
54% among the E's or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared
in clusters. Several cases previously filed against him in the Office of the
Ombudsman were set in motion. These are: (1) OMB Case No. 0-00-1629, filed

Page 79 of 349
by Ramon A. Gonzales on October 23, 2000 for bribery and graft and corruption;
(2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and
Corruption on November 17, 2000 for plunder, forfeiture, graft and corruption,
bribery, perjury, serious misconduct, violation of the Code of Conduct for
Government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft
Free Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture,
graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-
00-1756 filed by Romeo Capulong, et al., on November 28, 2000 for
malversation of public funds, illegal use of public funds and property, plunder,
etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November
28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD
46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B.
Francisco, Jr. on December 4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent

Ombudsman to investigate the charges against the petitioner. It is chaired by
Overall Deputy Ombudsman Margarito P. Gervasio with the following as
members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose
de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an
Order directing the petitioner to file his counter-affidavit and the affidavits of his
witnesses as well as other supporting documents in answer to the
aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with
this Court GR No. 146710-15, a petition for prohibition with a prayer for a writ of
preliminary injunction. It sought to enjoin the respondent Ombudsman from
"conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755,
1756, 1757 and 1758 or in any other criminal complaint that may be filed in his
office, until after the term of petitioner as President is over and only if legally
warranted." Thru another counsel, petitioner, on February 6, filed GR No. 146738
for Quo Warranto. He prayed for judgment "confirming petitioner to be the lawful
and incumbent President of the Republic of the Philippines temporarily unable to
discharge the duties of his office, and declaring respondent to have taken her
oath as and to be holding the Office of the President, only in an acting capacity
pursuant to the provisions of the Constitution." Acting on GR Nos. 146710-15, the
Court, on the same day, February 6, required the respondents "to comment
thereon within a non-extendible period expiring on 12 February 2001." On
February 13, the Court ordered the consolidation of GR Nos. 146710-15 and GR
No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m.
of February 15."

Page 80 of 349
On February 15, the consolidated cases were orally argued in a four-hour
hearing. Before the hearing, Chief Justice Davide, Jr.51 and Associate Justice
Artemio Panganiban52 recused themselves on motion of petitioner's counsel,
former Senator Rene A. Saguisag. They debunked the charge of counsel
Saguisag that they have "compromised themselves by indicating that they have
thrown their weight on one side" but nonetheless inhibited themselves.
Thereafter, the parties were given the short period of five (5) days to file their
memoranda and two (2) days to submit their simultaneous replies.

In a resolution dated February 20, acting on the urgent motion for copies of
resolution and press statement for "Gag Order" on respondent Ombudsman filed
by counsel for petitioner in G.R. No. 146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on
January 20, 2001 declaring the office of the President vacant and that
neither did the Chief Justice issue a press statement justifying the alleged
resolution;

(2) to order the parties and especially their counsel who are officers of the
Court under pain of being cited for contempt to refrain from making any
comment or discussing in public the merits of the cases at bar while they
are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the
respondent Ombudsman from resolving or deciding the criminal cases
pending investigation in his office against petitioner, Joseph E. Estrada
and subject of the cases at bar, it appearing from news reports that the
respondent Ombudsman may immediately resolve the cases against
petitioner Joseph E. Estrada seven (7) days after the hearing held on
February 15, 2001, which action will make the cases at bar moot and
academic."53

The parties filed their replies on February 24. On this date, the cases at bar were
deemed submitted for decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Page 81 of 349
 Assuming that the petitions present a justiciable controversy, whether
petitioner Estrada is a President on leave while respondent Arroyo is an
Acting President.

III

Whether conviction in the impeachment proceedings is a condition

precedent for the criminal prosecution of petitioner Estrada. In the negative
and on the assumption that petitioner is still President, whether he is
immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the

ground of prejudicial publicity.

We shall discuss the issues in seriatim.

Whether or not the cases At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a
political question, and hence, are beyond the jurisdiction of this Court to decide.
They contend that shorn of its embroideries, the cases at bar assail the
"legitimacy of the Arroyo administration." They stress that respondent Arroyo
ascended the presidency through people power; that she has already taken her
oath as the 14th President of the Republic; that she has exercised the powers of
the presidency and that she has been recognized by foreign governments. They
submit that these realities on ground constitute the political thicket, which the
Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad,

have tried to lift the shroud on political question but its exact latitude still splits the
best of legal minds. Developed by the courts in the 20th century, the political
question doctrine which rests on the principle of separation of powers and on
prudential considerations, continue to be refined in the mills of constitutional
law.55 In the United States, the most authoritative guidelines to determine whether
a question is political were spelled out by Mr. Justice Brennan in the 1962 case
or Baker v. Carr,56 viz:

Page 82 of 349
 "x x x Prominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional commitment of
the issue to a coordinate political department or a lack of judicially
discoverable and manageable standards for resolving it, or the
impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from multifarious pronouncements by
various departments on question. Unless one of these formulations is
inextricable from the case at bar, there should be no dismissal for non
justiciability on the ground of a political question's presence. The doctrine
of which we treat is one of 'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases
calling for a firmer delineation of the inner and outer perimeters of a political
question.57 Our leading case is Tanada v. Cuenco,58 where this Court, through
former Chief Justice Roberto Concepcion, held that political questions refer "to
those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the wisdom,
not legality of a particular measure." To a great degree, the 1987 Constitution
has narrowed the reach of the political question doctrine when it expanded the
power of judicial review of this court not only to settle actual controversies
involving rights which are legally demandable and enforceable but also to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government.59 Heretofore, the judiciary has focused on the
"thou shalt not's" of the Constitution directed against the exercise of its
jurisdiction.60With the new provision, however, courts are given a greater
prerogative to determine what it can do to prevent grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government. Clearly, the new provision did not just grant
the Court power of doing nothing. In sync and symmetry with this intent are
other provisions of the 1987 Constitution trimming the so called political thicket.
Prominent of these provisions is section 18 of Article VII which empowers this
Court in limpid language to "x x x review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual basis of the proclamation of martial law

Page 83 of 349
or the suspension of the privilege of the writ (of habeas corpus) or the extension
thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines

and/or Oliver A. Lozano v. President Corazon C. Aquino, et al. 61 and related
cases62 to support their thesis that since the cases at bar involve the legitimacy
of the government of respondent Arroyo, ergo, they present a political
question. A more cerebral reading of the cited cases will show that they are
inapplicable. In the cited cases, we held that the government of former President
Aquino was the result of a successful revolution by the sovereign people,
albeit a peaceful one. No less than the Freedom Constitution63 declared that the
Aquino government was installed through a direct exercise of the power of the
Filipino people "in defiance of the provisions of the 1973 Constitution, as
amended." In is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for that
government automatically orbits out of the constitutional loop. In checkered
contrast, the government of respondent Arroyo is not revolutionary in
character. The oath that she took at the EDSA Shrine is the oath under the 1987
Constitution.64 In her oath, she categorically swore to preserve and defend
the 1987 Constitution. Indeed, she has stressed that she is discharging the
powers of the presidency under the authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I EDSA People

Power II is clear. EDSA I involves the exercise of the people power of
revolution which overthrew the whole government. EDSA II is an exercise
of people power of freedom of speech and freedom of assembly to petition
the government for redress of grievances which only affected the office of
the President. EDSA I is extra constitutional and the legitimacy of the new
government that resulted from it cannot be the subject of judicial review,
but EDSA II is intra constitutional and the resignation of the sitting President
that it caused and the succession of the Vice President as President are subject
to judicial review. EDSA I presented a political question; EDSA II involves
legal questions. A brief discourse on freedom of speech and of the freedom of
assembly to petition the government for redress of grievance which are
the cutting edge of EDSA People Power II is not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial
of these rights was one of the reasons of our 1898 revolution against Spain. Our
national hero, Jose P. Rizal, raised the clarion call for the recognition of freedom
of the press of the Filipinos and included it as among "the reforms sine quibus
non."65 The Malolos Constitution, which is the work of the revolutionary

Page 84 of 349
Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived
(1) of the right to freely express his ideas or opinions, orally or in writing, through
the use of the press or other similar means; (2) of the right of association for
purposes of human life and which are not contrary to public means; and (3) of the
right to send petitions to the authorities, individually or collectively." These
fundamental rights were preserved when the United States acquired
jurisdiction over the Philippines. In the Instruction to the Second Philippine
Commission of April 7, 1900 issued by President McKinley, it is specifically
provided "that no law shall be passed abridging the freedom of speech or of the
press or of the rights of the people to peaceably assemble and petition the
Government for redress of grievances." The guaranty was carried over in the
Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of
Congress of August 29, 1966.66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and

the 197368 Constitution. These rights are now safely ensconced in section 4,
Article III of the 1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of

expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances."

The indispensability of the people's freedom of speech and of assembly to

democracy is now self-evident. The reasons are well put by Emerson: first,
freedom of expression is essential as a means of assuring individual fulfillment;
second, it is an essential process for advancing knowledge and discovering truth;
third, it is essential to provide for participation in decision-making by all members
of society; and fourth, it is a method of achieving a more adaptable and hence, a
more stable community of maintaining the precarious balance between healthy
cleavage and necessary consensus."69 In this sense, freedom of speech and
of assembly provides a framework in which the "conflict necessary to the
progress of a society can take place without destroying the
society."70In Hague v. Committee for Industrial Organization, 71 this function of
free speech and assembly was echoed in the amicus curiae filed by the Bill of
Rights Committee of the American Bar Association which emphasized that "the
basis of the right of assembly is the substitution of the expression of opinion and
belief by talk rather than force; and this means talk for all and by all."72 In the
relatively recent case of Subayco v. Sandiganbayan,73 this Court similar
stressed that "… it should be clear even to those with intellectual deficits that
when the sovereign people assemble to petition for redress of grievances, all

Page 85 of 349
should listen. For in a democracy, it is the people who count; those who are
deaf to their grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The
principal issues for resolution require the proper interpretation of certain
provisions in the 1987 Constitution, notably section 1 of Article II,74 and section
875 of Article VII, and the allocation of governmental powers under section 1176 of
Article VII. The issues likewise call for a ruling on the scope of presidential
immunity from suit. They also involve the correct calibration of the right of
petitioner against prejudicial publicity. As early as the 1803 case of Marbury v.
Madison,77 the doctrine has been laid down that "it is emphatically the
province and duty of the judicial department to say what the law is . . ."
Thus, respondent's in vocation of the doctrine of political question is but a foray in
the dark.

II

Whether or not the petitioner Resigned as President

We now slide to the second issue. None of the parties considered this issue as
posing a political question. Indeed, it involves a legal question whose factual
ingredient is determinable from the records of the case and by resort to judicial
notice. Petitioner denies he resigned as President or that he suffers from a
permanent disability. Hence, he submits that the office of the President was not
vacant when respondent Arroyo took her oath as President.

The issue brings under the microscope the meaning of section 8, Article VII of
the Constitution which provides:

"Sec. 8. In case of death, permanent disability, removal from office or

resignation of the President, the Vice President shall become the President
to serve the unexpired term. In case of death, permanent disability,
removal from office, or resignation of both the President and Vice
President, the President of the Senate or, in case of his inability, the
Speaker of the House of Representatives, shall then act as President until
the President or Vice President shall have been elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be

considered resigned as of January 20, 2001 when respondent took her oath as
the 14th President of the Public. Resignation is not a high level legal abstraction. It

Page 86 of 349
is a factual question and its elements are beyond quibble: there must be an
intent to resign and the intent must be coupled by acts of
relinquishment.78 The validity of a resignation is not government by any formal
requirement as to form. It can be oral. It can be written. It can be express. It can
be implied. As long as the resignation is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of
resignation before he evacuated Malacañang Palace in the afternoon of January
20, 2001 after the oath-taking of respondent Arroyo. Consequently, whether or
not petitioner resigned has to be determined from his act and omissions before,
during and after January 20, 2001 or by the totality of prior, contemporaneous
and posterior facts and circumstantial evidence bearing a material
relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is
important to follow the succession of events after the exposẻ of Governor
Singson. The Senate Blue Ribbon Committee investigated. The more detailed
revelations of petitioner's alleged misgovernance in the Blue Ribbon investigation
spiked the hate against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of succeeding
snowballed. In express speed, it gained the signatures of 115 representatives or
more than 1/3 of the House of Representatives. Soon, petitioner's powerful
political allies began deserting him. Respondent Arroyo quit as Secretary of
Social Welfare. Senate President Drilon and former Speaker Villar defected with
47 representatives in tow. Then, his respected senior economic advisers
resigned together with his Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his
resignation intensified. The call reached a new crescendo when the eleven (11)
members of the impeachment tribunal refused to open the second envelope. It
sent the people to paroxysms of outrage. Before the night of January 16 was
over, the EDSA Shrine was swarming with people crying for redress of their
grievance. Their number grew exponentially. Rallies and demonstration quickly
spread to the countryside like a brush fire.

As events approached January 20, we can have an authoritative window on

the state of mind of the petitioner. The window is provided in the "Final Days of
Joseph Ejercito Estrada," the diary of Executive Secretary Angara serialized in
the Philippine Daily Inquirer.79 The Angara Diary reveals that in the morning of
January 19, petitioner's loyal advisers were worried about the swelling of the

Page 87 of 349
crowd at EDSA, hence, they decided to create an ad hoc committee to handle it.
Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into
his small office at the presidential residence and exclaimed: "Ed, seryoso na ito.
Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)" 80 An
hour later or at 2:30 p.m., the petitioner decided to call for a snap presidential
election and stressed he would not be a candidate. The proposal for a snap
election for president in May where he would not be a candidate is an
indicium that petitioner had intended to give up the presidency even at that
time. At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators
demanding the resignation of the petitioner and dramatically announced the
AFP's withdrawal of support from the petitioner and their pledge of support to
respondent Arroyo. The seismic shift of support left petitioner weak as a
president. According to Secretary Angara, he asked Senator Pimentel to advise
petitioner to consider the option of "dignified exit or resignation."81 Petitioner
did not disagree but listened intently.82 The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency
of making a graceful and dignified exit. He gave the proposal a sweetener by
saying that petitioner would be allowed to go abroad with enough funds to
support him and his family.83 Significantly, the petitioner expressed no
objection to the suggestion for a graceful and dignified exit but said he
would never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary
Angara, "Ed, Angie (Reyes) guaranteed that I would have five days to a week in
the palace."85 This is proof that petitioner had reconciled himself to the reality that he had to
resign. His mind was already concerned with the five-day grace period he could stay in the palace.
It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called
up Secretary Angara and requested, "Ed, magtulungan tayo para magkaroon
tayo ng (let's cooperate to ensure a) peaceful and orderly transfer of
power."86 There was no defiance to the request. Secretary Angara readily
agreed. Again, we note that at this stage, the problem was already about a
peaceful and orderly transfer of power. The resignation of the petitioner
was implied.

The first negotiation for a peaceful and orderly transfer of power immediately

started at 12:20 a.m. of January 20, that fateful Saturday. The negotiation was
limited to three (3) points: (1) the transition period of five days after the
petitioner's resignation; (2) the guarantee of the safety of the petitioner and his
family, and (3) the agreement to open the second envelope to vindicate the name
of the petitioner.87 Again, we note that the resignation of petitioner was not a
disputed point. The petitioner cannot feign ignorance of this fact. According
to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three points

Page 88 of 349
and the following entry in the Angara Diary shows the reaction of the
petitioner, viz:

"x x x

I explain what happened during the first round of negotiations.

The President immediately stresses that he just wants the five-day
period promised by Reyes, as well as to open the second envelope to
clear his name.

If the envelope is opened, on Monday, he says, he will leave by

Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang

masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very
tired. I don't want any more of this – it's too painful. I'm tired of the
red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The
intent to resign is clear when he said "x x x Ayoko na masyado nang masakit."
"Ayoko na" are words of resignation.

The second round of negotiation resumed at 7:30 a.m. According to the

Angara Diary, the following happened:

"Opposition's deal

7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's
spokesperson) Rene Corona. For this round, I am accompanied by
Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20
January 2001, that will be effective on Wednesday, 24 January 2001, on
which day the Vice President will assume the Presidency of the Republic
of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the

assumption of the new administration shall commence, and persons

Page 89 of 349
designated by the Vice President to various positions and offices of the
government shall start their orientation activities in coordination with the
incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police
shall function under the Vice President as national military and police
authority effective immediately.

4. The Armed Forced of the Philippines, through its Chief of Staff, shall
guarantee the security of the President and his family as approved by the
national military and police authority (Vice President).

5. It is to be noted that the Senate will open the second envelope in

connection with the alleged savings account of the President in the
Equitable PCI Bank in accordance with the rules of the Senate, pursuant to
the request to the Senate President.

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals,

agree and undertake as follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001,
at which time President Joseph Ejercito Estrada will turn over the
presidency to Vice President Gloria Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security
and safety of their person and property throughout their natural lifetimes.
Likewise, President Estrada and his families are guarantee freedom from
persecution or retaliation from government and the private sector
throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the

Philippines (AFP) through the Chief of Staff, as approved by the national
military and police authorities – Vice President (Macapagal).

'3. Both parties shall endeavor to ensure that the Senate sitting as an
impeachment court will authorize the opening of the second envelope in
the impeachment trial as proof that the subject savings account does not
belong to President Estrada.

Page 90 of 349
 '4. During the five-day transition period between 20 January 2001 and 24
January 2001 (the 'Transition Period"), the incoming Cabinet members
shall receive an appropriate briefing from the outgoing Cabinet officials as
part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police
(PNP) shall function Vice President (Macapagal) as national military and
police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director
general shall obtain all the necessary signatures as affixed to this
agreement and insure faithful implementation and observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in

the form and tenor provided for in "Annex A" heretofore attached to this
agreement."89

The second round of negotiation cements the reading that the petitioner has
resigned. It will be noted that during this second round of negotiation, the
resignation of the petitioner was again treated as a given fact. The only unsettled
points at that time were the measures to be undertaken by the parties during and
after the transition period.

According to Secretary Angara, the draft agreement, which was premised on the
resignation of the petitioner was further refined. It was then, signed by their side
and he was ready to fax it to General Reyes and Senator Pimentel to await the
signature of the United Opposition. However, the signing by the party of the
respondent Arroyo was aborted by her oath-taking. The Angara diary narrates
the fateful events, viz;90

"xxx

11:00 a.m. – Between General Reyes and myself, there is a firm

agreement on the five points to effect a peaceful transition. I can hear the
general clearing all these points with a group he is with. I hear voices in the
background.

Agreement.

The agreement starts: 1. The President shall resign today, 20 January

2001, which resignation shall be effective on 24 January 2001, on which

Page 91 of 349
day the Vice President will assume the presidency of the Republic of the
Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall
commence on 20 January 2001, wherein persons designated by the Vice
President to various government positions shall start orientation activities
with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall
guarantee the safety and security of the President and his families
throughout their natural lifetimes as approved by the national military and
police authority – Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under
the Vice President as national military and police authorities.

'5. Both parties request the impeachment court to open the second
envelope in the impeachment trial, the contents of which shall be offered
as proof that the subject savings account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor
provided for in Annex "B" heretofore attached to this agreement.

11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our
agreement, signed by our side and awaiting the signature of the United
opposition.

And then it happens. General Reyes calls me to say that the Supreme
Court has decided that Gloria Macapagal-Arroyo is President and will be
sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why

couldn't you wait? What about the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

Page 92 of 349
And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're
deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a
double cross.

But I immediately instruct Macel to delete the first provision on resignation

since this matter is already moot and academic. Within moments, Macel
erases the first provision and faxes the documents, which have been
signed by myself, Dondon and Macel, to Nene Pimentel and General
Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for
the signatures of the other side, as it is important that the provisions on
security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief
Justice Davide will administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon – Gloria takes her oath as president of the Republic of the

Philippines.

12:20 p.m. – The PSG distributes firearms to some people inside the
compound.

The president is having his final meal at the presidential Residence with
the few friends and Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of
defense at Mendiola. Only the PSG is there to protect the Palace, since
the police and military have already withdrawn their support for the
President.

1 p.m. – The President's personal staff is rushing to pack as many of the

Estrada family's personal possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to release a
final statement before leaving Malacañang.

Page 93 of 349
 The statement reads: At twelve o'clock noon today, Vice President Gloria
Macapagal-Arroyo took her oath as President of the Republic of the
Philippines. While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the
restoration of unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the
presidency of this country, for the sake of peace and in order to begin the
healing process of our nation. I leave the Palace of our people with
gratitude for the opportunities given to me for service to our people. I will
not shirk from any future challenges that may come ahead in the same
service of our country.

I call on all my supporters and followers to join me in the promotion of a

constructive national spirit of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was
confirmed by his leaving Malacañang. In the press release containing his final
statement, (1) he acknowledged the oath-taking of the respondent as President
of the Republic albeit with reservation about its legality; (2) he emphasized he
was leaving the Palace, the seat of the presidency, for the sake of peace and in
order to begin the healing process of our nation. He did not say he was leaving
the Palace due to any kind inability and that he was going to re-assume the
presidency as soon as the disability disappears: (3) he expressed his gratitude to
the people for the opportunity to serve them. Without doubt, he was referring to
the past opportunity given him to serve the people as President (4) he assured
that he will not shirk from any future challenge that may come ahead in the same
service of our country. Petitioner's reference is to a future challenge after
occupying the office of the president which he has given up; and (5) he called on
his supporters to join him in the promotion of a constructive national spirit of
reconciliation and solidarity. Certainly, the national spirit of reconciliation and
solidarity could not be attained if he did not give up the presidency. The press
release was petitioner's valedictory, his final act of farewell. His presidency is
now in the part tense.

Page 94 of 349
It is, however, urged that the petitioner did not resign but only took a temporary
leave dated January 20, 2001 of the petitioner sent to Senate President Pimentel
and Speaker Fuentebella is cited. Again, we refer to the said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am

hereby transmitting this declaration that I am unable to exercise the
powers and duties of my office. By operation of law and the Constitution,
the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.91 The pleadings filed by
the petitioner in the cases at bar did not discuss, may even intimate, the
circumstances that led to its preparation. Neither did the counsel of the petitioner
reveal to the Court these circumstances during the oral argument. It strikes the
Court as strange that the letter, despite its legal value, was never referred to by
the petitioner during the week-long crisis. To be sure, there was not the slightest
hint of its existence when he issued his final press release. It was all too easy for
him to tell the Filipino people in his press release that he was temporarily unable
to govern and that he was leaving the reins of government to respondent Arroyo
for the time bearing. Under any circumstance, however, the mysterious letter
cannot negate the resignation of the petitioner. If it was prepared before the
press release of the petitioner clearly as a later act. If, however, it was prepared
after the press released, still, it commands scant legal significance. Petitioner's
resignation from the presidency cannot be the subject of a changing caprice nor
of a whimsical will especially if the resignation is the result of his reputation by
the people. There is another reason why this Court cannot given any legal
significance to petitioner's letter and this shall be discussed in issue number III of
this Decision.

After petitioner contended that as a matter of fact he did not resign, he also
argues that he could not resign as a matter of law. He relies on section 12 of RA
No. 3019, otherwise known as the Anti-graft and Corrupt Practices Act, which
allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an

investigation, criminals or administrative, or pending a prosecution against
him, for any offense under this Act or under the provisions of the Revised
Penal Code on bribery."

Page 95 of 349
A reading of the legislative history of RA No. 3019 will hardly provide any comfort
to the petitioner. RA No. 3019 originated form Senate Bill No. 293. The original
draft of the bill, when it was submitted to the Senate, did not contain a provision
similar to section 12 of the law as it now stands. However, in his sponsorship
speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose
during the period of amendments the inclusion of a provision to the effect that no
public official who is under prosecution for any act of graft or corruption, or is
under administrative investigation, shall be allowed to voluntarily resign or
retire."92 During the period of amendments, the following provision was inserted
as section 15:

"Sec. 15. Termination of office – No public official shall be allowed to

resign or retire pending an investigation, criminal or administrative, or
pending a prosecution against him, for any offense under the Act or under
the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar
to his prosecution under this Act for an offense committed during his
incumbency."93

The bill was vetoed by then President Carlos P. Garcia who questioned the
legality of the second paragraph of the provision and insisted that the President's
immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was
thereafter passed. Section 15 above became section 13 under the new bill, but
the deliberations on this particular provision mainly focused on the immunity of
the President, which was one of the reasons for the veto of the original bill. There
was hardly any debate on the prohibition against the resignation or retirement of
a public official with pending criminal and administrative cases against him. Be
that as it may, the intent of the law ought to be obvious. It is to prevent the act of
resignation or retirement from being used by a public official as a protective
shield to stop the investigation of a pending criminal or administrative case
against him and to prevent his prosecution under the Anti-Graft Law or
prosecution for bribery under the Revised Penal Code. To be sure, no person
can be compelled to render service for that would be a violation of his
constitutional right.94 A public official has the right not to serve if he really wants to
retire or resign. Nevertheless, if at the time he resigns or retires, a public official
is facing administrative or criminal investigation or prosecution, such resignation
or retirement will not cause the dismissal of the criminal or administrative
proceedings against him. He cannot use his resignation or retirement to avoid
prosecution.

Page 96 of 349
There is another reason why petitioner's contention should be rejected. In the
cases at bar, the records show that when petitioner resigned on January 20,
2001, the cases filed against him before the Ombudsman were OMB Case Nos.
0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While these cases
have been filed, the respondent Ombudsman refrained from conducting the
preliminary investigation of the petitioner for the reason that as the sitting
President then, petitioner was immune from suit. Technically, the said cases
cannot be considered as pending for the Ombudsman lacked jurisdiction to act
on them. Section 12 of RA No. 3019 cannot therefore be invoked by the
petitioner for it contemplates of cases whose investigation or prosecution do not
suffer from any insuperable legal obstacle like the immunity from suit of a sitting
President.

Petitioner contends that the impeachment proceeding is an administrative

investigation that, under section 12 of RA 3019, bars him from resigning. We hold
otherwise. The exact nature of an impeachment proceeding is debatable. But
even assuming arguendo that it is an administrative proceeding, it can not be
considered pending at the time petitioner resigned because the process already
broke down when a majority of the senator-judges voted against the opening of
the second envelope, the public and private prosecutors walked out, the public
prosecutors filed their Manifestation of Withdrawal of Appearance, and the
proceedings were postponed indefinitely. There was, in effect, no impeachment
case pending against petitioner when he resigned.

III

Whether or not the petitioner Is only temporarily unable to Act as

President.

We shall now tackle the contention of the petitioner that he is merely temporarily
unable to perform the powers and duties of the presidency, and hence is a
President on leave. As aforestated, the inability claim is contained in the January
20, 2001 letter of petitioner sent on the same day to Senate President Pimentel
and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to

adjudge the inability of the petitioner to discharge the powers and duties of the
presidency. His significant submittal is that "Congress has the ultimate authority
under the Constitution to determine whether the President is incapable of
performing his functions in the manner provided for in section 11 of article
VII."95 This contention is the centerpiece of petitioner's stance that he is a
President on leave and respondent Arroyo is only an Acting President.

Page 97 of 349
An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate
and the Speaker of the House of Representatives his written declaration
that he is unable to discharge the powers and duties of his office, and until
he transmits to them a written declaration to the contrary, such powers and
duties shall be discharged by the Vice-President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit to the

President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is unable to
discharge the powers and duties of his office, the Vice-President shall
immediately assume the powers and duties of the office as Acting
President.

Thereafter, when the President transmits to the President of the Senate

and to the Speaker of the House of Representatives his written declaration
that no inability exists, he shall reassume the powers and duties of his
office. Meanwhile, should a majority of all the Members of the Cabinet
transmit within five days to the President of the Senate and to the Speaker
of the House of Representatives their written declaration that the President
is unable to discharge the powers and duties of his office, the Congress
shall decide the issue. For that purpose, the Congress shall convene, if it is
not in session, within forty-eight hours, in accordance with its rules and
without need of call.

If the Congress, within ten days after receipt of the last written declaration,
or, if not in session, within twelve days after it is required to assemble,
determines by a two-thirds vote of both Houses, voting separately, that the
President is unable to discharge the powers and duties of his office, the
Vice-President shall act as President; otherwise, the President shall
continue exercising the powers and duties of his office."

That is the law. Now, the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming

inability to the Senate President and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as
President on January 20, 2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed
on January 24, 2001 House Resolution No. 175;96

Page 98 of 349
On the same date, the House of the Representatives passed House Resolution
No. 17697 which states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF

REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE
PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER
ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE
NATION'S GOALS UNDER THE CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the

ability of former President Joseph Ejercito Estrada to effectively govern,
the Armed Forces of the Philippines, the Philippine National Police and
majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court,

Vice President Gloria Macapagal-Arroyo was sworn in as President of the
Philippines on 20 January 2001 before Chief Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international

community had extended their recognition to Her Excellency, Gloria
Macapagal-Arroyo as President of the Republic of the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has

espoused a policy of national healing and reconciliation with justice for the
purpose of national unity and development;

WHEREAS, it is axiomatic that the obligations of the government cannot

be achieved if it is divided, thus by reason of the constitutional duty of the
House of Representatives as an institution and that of the individual
members thereof of fealty to the supreme will of the people, the House of
Representatives must ensure to the people a stable, continuing
government and therefore must remove all obstacles to the attainment
thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to

exert all efforts to unify the nation, to eliminate fractious tension, to heal
social and political wounds, and to be an instrument of national
reconciliation and solidarity as it is a direct representative of the various
segments of the whole nation;

Page 99 of 349
 WHEREAS, without surrending its independence, it is vital for the
attainment of all the foregoing, for the House of Representatives to extend
its support and collaboration to the administration of Her Excellency,
President Gloria Macapagal-Arroyo, and to be a constructive partner in
nation-building, the national interest demanding no less: Now, therefore,
be it

Resolved by the House of Representatives, To express its support to the

assumption into office by Vice President Gloria Macapagal-Arroyo as
President of the Republic of the Philippines, to extend its congratulations
and to express its support for her administration as a partner in the
attainment of the Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January

24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

On February 7, 2001, the House of the Representatives passed House

Resolution No. 17898 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-

ARROYO'S NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR.
AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to

the assumption to the Presidency of Vice President Gloria Macapagal-
Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the

President in the event of such vacancy shall nominate a Vice President
from among the members of the Senate and the House of Representatives
who shall assume office upon confirmation by a majority vote of all
members of both Houses voting separately;

Page 100 of 349

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has
nominated Senate Minority Leader Teofisto T. Guingona Jr., to the position
of Vice President of the Republic of the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed

with integrity, competence and courage; who has served the Filipino
people with dedicated responsibility and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities

of true statesmanship, having served the government in various capacities,
among others, as Delegate to the Constitutional Convention, Chairman of
the Commission on Audit, Executive Secretary, Secretary of Justice,
Senator of the Philippines – qualities which merit his nomination to the
position of Vice President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That

the House of Representatives confirms the nomination of Senator Teofisto
T. Guingona, Jr. as the Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on

February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve
(12) members of the Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an

opportunity for meaningful change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges

the nation needs unity of purpose and resolve cohesive resolute (sic) will;

Page 101 of 349

WHEREAS, the Senate of the Philippines has been the forum for vital
legislative measures in unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government

of President Gloria Macapagal-Arroyo and resolve to discharge and
overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No.

82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL

ARROYO'S NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS
VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the
assumption to the Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the

President in the event of such vacancy shall nominate a Vice President
from among the members of the Senate and the House of Representatives
who shall assume office upon confirmation by a majority vote of all
members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has

nominated Senate Minority Leader Teofisto T. Guingona, Jr. to the position
of Vice President of the Republic of the Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed

with integrity, competence and courage; who has served the Filipino
people with dedicated responsibility and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of

true statemanship, having served the government in various capacities,
among others, as Delegate to the Constitutional Convention, Chairman of
the Commission on Audit, Executive Secretary, Secretary of Justice,
Senator of the land - which qualities merit his nomination to the position of
Vice President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination

of Sen. Teofisto T. Guingona, Jr. as Vice President of the Republic of the
Philippines.

Page 102 of 349

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate

Resolution No. 83101 which states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT

IS FUNCTUS OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the

Impeachment Court is functus officioand has been terminated.

Resolved, further, That the Journals of the Impeachment Court on

Monday, January 15, Tuesday, January 16 and Wednesday, January 17,
2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including

the "second envelope" be transferred to the Archives of the Senate for
proper safekeeping and preservation in accordance with the Rules of the
Senate. Disposition and retrieval thereof shall be made only upon written
approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this

Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

Page 103 of 349

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the
existence of vacancy in the Senate and calling on the COMELEC to fill up such
vacancy through election to be held simultaneously with the regular election on
May 14, 2001 and the Senatorial candidate garnering the thirteenth (13th) highest
number of votes shall serve only for the unexpired term of Senator Teofisto T.
Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by

respondent Arroyo as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any
recognition from any sector of government, and without any support from the
Armed Forces of the Philippines and the Philippine National Police, the petitioner
continues to claim that his inability to govern is only momentary.

What leaps to the eye from these irrefutable facts is that both houses of
Congress have recognized respondent Arroyo as the President. Implicitly
clear in that recognition is the premise that the inability of petitioner
Estrada. Is no longer temporary. Congress has clearly rejected petitioner's
claim of inability.

The question is whether this Court has jurisdiction to review the claim of
temporary inability of petitioner Estrada and thereafter revise the decision of
both Houses of Congress recognizing respondent Arroyo as president of the
Philippines. Following Tañada v. Cuenco,102 we hold that this Court cannot
exercise its judicial power or this is an issue "in regard to which full discretionary
authority has been delegated to the Legislative xxx branch of the government."
Or to use the language in Baker vs. Carr,103 there is a "textually demonstrable or
a lack of judicially discoverable and manageable standards for resolving it."
Clearly, the Court cannot pass upon petitioner's claim of inability to discharge the
power and duties of the presidency. The question is political in nature and
addressed solely to Congress by constitutional fiat. It is a political issue,
which cannot be decided by this Court without transgressing the principle of
separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he
cannot successfully claim that he is a President on leave on the ground
that he is merely unable to govern temporarily. That claim has been laid to
rest by Congress and the decision that respondent Arroyo is the de jure,
president made by a co-equal branch of government cannot be reviewed by
this Court.

Page 104 of 349

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him
before the respondent Ombudsman should be prohibited because he has not
been convicted in the impeachment proceedings against him; and second, he
enjoys immunity from all kinds of suit, whether criminal or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive

immunity will be most enlightening. The doctrine of executive immunity in this
jurisdiction emerged as a case law. In the 1910 case of Forbes, etc. vs.
Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a Chinese citizen, sued
petitioner W. Cameron Forbes, Governor-General of the Philippine Islands. J.E.
Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of
the City of Manila, respectively, for damages for allegedly conspiring to deport
him to China. In granting a writ of prohibition, this Court, speaking thru Mr.
Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the
judiciary has no authority to touch the acts of the Governor-General; that
he may, under cover of his office, do what he will, unimpeded and
unrestrained. Such a construction would mean that tyranny, under the
guise of the execution of the law, could walk defiantly abroad, destroying
rights of person and of property, wholly free from interference of courts or
legislatures. This does not mean, either that a person injured by the
executive authority by an act unjustifiable under the law has n remedy, but
must submit in silence. On the contrary, it means, simply, that the
governors-general, like the judges if the courts and the members of the
Legislature, may not be personally mulcted in civil damages for the
consequences of an act executed in the performance of his official duties.
The judiciary has full power to, and will, when the mater is properly
presented to it and the occasion justly warrants it, declare an act of the
Governor-General illegal and void and place as nearly as possible in status
quo any person who has been deprived his liberty or his property by such
act. This remedy is assured to every person, however humble or of
whatever country, when his personal or property rights have been invaded,
even by the highest authority of the state. The thing which the judiciary can
not do is mulct the Governor-General personally in damages which result
from the performance of his official duty, any more than it can a member of

Page 105 of 349

 the Philippine Commission of the Philippine Assembly. Public policy forbids
it.

Neither does this principle of nonliability mean that the chief executive may
not be personally sued at all in relation to acts which he claims to perform
as such official. On the contrary, it clearly appears from the discussion
heretofore had, particularly that portion which touched the liability of judges
and drew an analogy between such liability and that of the Governor-
General, that the latter is liable when he acts in a case so plainly outside of
his power and authority that he can not be said to have exercised
discretion in determining whether or not he had the right to act. What is
held here is that he will be protected from personal liability for damages not
only when he acts within his authority, but also when he is without
authority, provided he actually used discretion and judgement, that is, the
judicial faculty, in determining whether he had authority to act or not. In
other words, in determining the question of his authority. If he decide
wrongly, he is still protected provided the question of his authority was one
over which two men, reasonably qualified for that position, might honestly
differ; but he s not protected if the lack of authority to act is so plain that
two such men could not honestly differ over its determination. In such
case, be acts, not as Governor-General but as a private individual, and as
such must answer for the consequences of his act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was
not granted immunity from suit, viz"xxx. Action upon important matters of state
delayed; the time and substance of the chief executive spent in wrangling
litigation; disrespect engendered for the person of one of the highest officials of
the state and for the office he occupies; a tendency to unrest and disorder
resulting in a way, in distrust as to the integrity of government itself."105

Our 1935 Constitution took effect but it did not contain any specific provision on
executive immunity. Then came the tumult of the martial law years under the late
President Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it
was amended and one of the amendments involved executive immunity. Section
17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no
suit whatsoever shall lie for official acts done by him or by others pursuant
to his specific orders during his tenure.

The immunities herein provided shall apply to the incumbent President

referred to in Article XVII of this Constitution.

Page 106 of 349

In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential
Immunity and All The King's Men: The Law of Privilege As a Defense To Actions
For Damages,"106 petitioner's learned counsel, former Dean of the UP College of
Law, Atty. Pacificao Agabin, brightened the modifications effected by this
constitutional amendment on the existing law on executive privilege. To quote his
disquisition:

"In the Philippines, though, we sought to do the Americans one better by

enlarging and fortifying the absolute immunity concept. First, we extended
it to shield the President not only form civil claims but also from criminal
cases and other claims. Second, we enlarged its scope so that it would
cover even acts of the President outside the scope of official duties. And
third, we broadened its coverage so as to include not only the President
but also other persons, be they government officials or private individuals,
who acted upon orders of the President. It can be said that at that point
most of us were suffering from AIDS (or absolute immunity defense
syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this
Marcosian concept of executive immunity in the 1973 Constitution. The move
was led by them Member of Parliament, now Secretary of Finance, Alberto
Romulo, who argued that the after incumbency immunity granted to President
Marcos violated the principle that a public office is a public trust. He denounced
the immunity as a return to the anachronism "the king can do no wrong." 107 The
effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from
office by the People Power revolution in 1986. When the 1987 Constitution was
crafted, its framers did not reenact the executive immunity provision of the 1973
Constitution. The following explanation was given by delegate J. Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft
proposal the immunity provision for the President. I agree with
Commissioner Nolledo that the Committee did very well in striking out
second sentence, at the very least, of the original provision on immunity
from suit under the 1973 Constitution. But would the Committee members
not agree to a restoration of at least the first sentence that the President
shall be immune from suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be spending all his time

Page 107 of 349

 facing litigation's, as the President-in-exile in Hawaii is now facing
litigation's almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood
in present jurisprudence that during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation
made by the 1973 Constitution was to make that explicit and to add other
things.

Mr. Suarez. On that understanding, I will not press for any more query,
Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We
reject his argument that he cannot be prosecuted for the reason that he must first
be convicted in the impeachment proceedings. The impeachment trial of
petitioner Estrada was aborted by the walkout of the prosecutors and by the
events that led to his loss of the presidency. Indeed, on February 7, 2001, the
Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment
Court is Functus Officio."109 Since, the Impeachment Court is now functus officio,
it is untenable for petitioner to demand that he should first be impeached and
then convicted before he can be prosecuted. The plea if granted, would put a
perpetual bar against his prosecution. Such a submission has nothing to
commend itself for it will place him in a better situation than a non-sitting
President who has not been subjected to impeachment proceedings and yet can
be the object of a criminal prosecution. To be sure, the debates in the
Constitutional Commission make it clear that when impeachment proceedings
have become moot due to the resignation of the President, the proper criminal
and civil cases may already be filed against him, viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been

filed against the President, for example, and the President resigns before
judgement of conviction has been rendered by the impeachment court or
by the body, how does it affect the impeachment proceeding? Will it be
necessarily dropped?

Page 108 of 349

 Mr. Romulo. If we decide the purpose of impeachment to remove one from
office, then his resignation would render the case moot and academic.
However, as the provision says, the criminal and civil aspects of it may
continue in the ordinary courts."

This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent

Presidents are immune from suit or from being brought to court during the period
of their incumbency and tenure" but not beyond. Considering the peculiar
circumstance that the impeachment process against the petitioner has been
aborted and thereafter he lost the presidency, petitioner Estrada cannot demand
as a condition sine qua non to his criminal prosecution before the Ombudsman
that he be convicted in the impeachment proceedings. His reliance on the case
of Lecaroz vs. Sandiganbayan112 and related cases113 are inapropos for they have
a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a

non-sitting President. The cases filed against petitioner Estrada are criminal in
character. They involve plunder, bribery and graft and corruption. By no stretch of
the imagination can these crimes, especially plunder which carries the death
penalty, be covered by the alleged mantle of immunity of a non-sitting president.
Petitioner cannot cite any decision of this Court licensing the President to commit
criminal acts and wrapping him with post-tenure immunity from liability. It will be
anomalous to hold that immunity is an inoculation from liability for unlawful acts
and conditions. The rule is that unlawful acts of public officials are not acts of the
State and the officer who acts illegally is not acting as such but stands in the
same footing as any trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a

judicial disinclination to expand the privilege especially when it impedes the
search for truth or impairs the vindication of a right. In the 1974 case of US v.
Nixon,115 US President Richard Nixon, a sitting President, was subpoenaed to
produce certain recordings and documents relating to his conversations with aids
and advisers. Seven advisers of President Nixon's associates were facing
charges of conspiracy to obstruct Justice and other offenses, which were
committed in a burglary of the Democratic National Headquarters in
Washington's Watergate Hotel during the 972 presidential campaign. President
Nixon himself was named an unindicted co-conspirator. President Nixon moved
to quash the subpoena on the ground, among others, that the President was not
subject to judicial process and that he should first be impeached and removed
from office before he could be made amenable to judicial proceedings. The claim
was rejected by the US Supreme Court. It concluded that "when the ground for

Page 109 of 349

asserting privilege as to subpoenaed materials sought for use in a criminal trial is
based only on the generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair administration of criminal
justice." In the 1982 case of Nixon v. Fitzgerald, 116 the US Supreme Court further
held that the immunity of the president from civil damages covers only "official
acts." Recently, the US Supreme Court had the occasion to reiterate this doctrine
in the case of Clinton v. Jones117 where it held that the US President's immunity
from suits for money damages arising out of their official acts is inapplicable to
unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of
executive immunity in our jurisdiction. One of the great themes of the 1987
Constitution is that a public office is a public trust.118 It declared as a state policy
that "the State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruptio." 119 it ordained that
"public officers and employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and efficiency act with
patriotism and justice, and lead modest lives."120 It set the rule that 'the right of the
State to recover properties unlawfully acquired by public officials or employees,
from them or from their nominees or transferees, shall not be barred by
prescription, latches or estoppel."121 It maintained the Sandiganbayan as an anti-
graft court.122 It created the office of the Ombudsman and endowed it with
enormous powers, among which is to "investigate on its own, or on complaint by
any person, any act or omission of any public official, employee, office or agency,
when such act or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also given fiscal
autonomy.124 These constitutional policies will be devalued if we sustain
petitioner's claim that a non-sitting president enjoys immunity from suit for
criminal acts committed during his incumbency.

Whether or not the prosecution of petitioner Estrada should be enjoined

due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped

from conducting the investigation of the cases filed against him due to the
barrage of prejudicial publicity on his guilt. He submits that the respondent
Ombudsman has developed bias and is all set file the criminal cases violation of
his right to due process.

Page 110 of 349

There are two (2) principal legal and philosophical schools of thought on how to
deal with the rain of unrestrained publicity during the investigation and trial of
high profile cases.125 The British approach the problem with the presumption that
publicity will prejudice a jury. Thus, English courts readily stay and stop criminal
trials when the right of an accused to fair trial suffers a threat.126 The American
approach is different. US courts assume a skeptical approach about the potential
effect of pervasive publicity on the right of an accused to a fair trial. They have
developed different strains of tests to resolve this issue, i.e., substantial;
probability of irreparable harm, strong likelihood, clear and present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court
to stop the trials or annul convictions in high profile criminal cases.127 In People
vs. Teehankee, Jr.,128 later reiterated in the case of Larranaga vs. court of
Appeals, et al.,129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to
impartial trial due to prejudicial publicity. It is true that the print and
broadcast media gave the case at bar pervasive publicity, just like all high
profile and high stake criminal trials. Then and now, we rule that the right
of an accused to a fair trial is not incompatible to a free press. To be sure,
responsible reporting enhances accused's right to a fair trial for, as well
pointed out, a responsible press has always been regarded as the criminal
field xxx. The press does not simply publish information about trials but
guards against the miscarriage of justice by subjecting the police,
prosecutors, and judicial processes to extensive public scrutiny and
criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair

trial. The mere fact that the trial of appellant was given a day-to-day, gavel-
to-gavel coverage does not by itself prove that the publicity so permeated
the mind of the trial judge and impaired his impartiality. For one, it is
impossible to seal the minds of members of the bench from pre-trial and
other off-court publicity of sensational criminal cases. The state of the art
of our communication system brings news as they happen straight to our
breakfast tables and right to our bedrooms. These news form part of our
everyday menu of the facts and fictions of life. For another, our idea of a
fair and impartial judge is not that of a hermit who is out of touch with the
world. We have not installed the jury system whose members are overly
protected from publicity lest they lose there impartially. xxx xxx xxx. Our
judges are learned in the law and trained to disregard off-court evidence
and on-camera performances of parties to litigation. Their mere exposure

Page 111 of 349

 to publications and publicity stunts does not per se fatally infect their
impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the
trial judge due to the barrage of publicity that characterized the
investigation and trial of the case. In Martelino, et al. v. Alejandro, et al., we
rejected this standard of possibility of prejudice and adopted the test of
actual prejudice as we ruled that to warrant a finding of prejudicial publicity,
there must be allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage of publicity. In the
case at a bar, the records do not show that the trial judge developed actual
bias against appellants as a consequence of the extensive media
coverage of the pre-trial and trial of his case. The totality of circumstances
of the case does not prove that the trial judge acquired a fixed opinion as a
result of prejudicial publicity, which is incapable of change even by
evidence presented during the trial. Appellant has the burden to prove this
actual bias and he has not discharged the burden.'

We expounded further on this doctrine in the subsequent case of Webb vs. Hon.
Raul de Leon, etc.130 and its companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to

due process while undergoing preliminary investigation. We find no
procedural impediment to its early invocation considering the substantial
risk to their liberty while undergoing a preliminary investigation.

xxx

The democratic settings, media coverage of trials of sensational cases

cannot be avoided and oftentimes, its excessiveness has been aggravated
by kinetic developments in the telecommunications industry. For sure, few
cases can match the high volume and high velocity of publicity that
attended the preliminary investigation of the case at bar. Our daily diet of
facts and fiction about the case continues unabated even today.
Commentators still bombard the public with views not too many of which
are sober and sublime. Indeed, even the principal actors in the case – the
NBI, the respondents, their lawyers and their sympathizers have
participated in this media blitz. The possibility of media abuses and their
threat to a fair trial notwithstanding, criminal trials cannot be completely
closed to the press and public. In the seminal case of Richmond
Newspapers, Inc. v. Virginia, it was

Page 112 of 349

xxx

a. The historical evidence of the evolution of the criminal trial in Anglo-

American justice demonstrates conclusively that at the time this
Nation's organic laws were adopted, criminal trials both here and in
England had long been presumptively open, thus giving assurance
that the proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or decisions
based on secret bias or partiality. In addition, the significant
community therapeutic value of public trials was recognized when a
shocking crime occurs a community reaction of outrage and public
protest often follows, and thereafter the open processes of justice
serve an important prophylactic purpose, providing an outlet for
community concern, hostility and emotion. To work effectively, it is
important that society's criminal process satisfy the appearance of
justice,' Offutt v. United States, 348 US 11, 14, 99 L ED 11, 75 S Ct
11, which can best be provided by allowing people to observe such
process. From this unbroken, uncontradicted history, supported by
reasons as valid today as in centuries past, it must be concluded
that a presumption of openness inheres in the very nature of a
criminal trial under this Nation's system of justice, Cf., e,g., Levine v.
United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly
guaranteed by the First Amendment, share a common core purpose
of assuring freedom of communication on matters relating to the
functioning of government. In guaranteeing freedom such as those
of speech and press, the First Amendment can be read as protecting
the right of everyone to attend trials so as give meaning to those
explicit guarantees; the First Amendment right to receive information
and ideas means, in the context of trials, that the guarantees of
speech and press, standing alone, prohibit government from
summarily closing courtroom doors which had long been open to the
public at the time the First Amendment was adopted. Moreover, the
right of assembly is also relevant, having been regarded not only as
an independent right but also as a catalyst to augment the free
exercise of the other First Amendment rights with which the
draftsmen deliberately linked it. A trial courtroom is a public place
where the people generally and representatives of the media have a
right to be present, and where their presence historically has been
thought to enhance the integrity and quality of what takes place.

Page 113 of 349

 c. Even though the Constitution contains no provision which be its
terms guarantees to the public the right to attend criminal trials,
various fundamental rights, not expressly guaranteed, have been
recognized as indispensable to the enjoyment of enumerated rights.
The right to attend criminal trial is implicit in the guarantees of the
First Amendment: without the freedom to attend such trials, which
people have exercised for centuries, important aspects of freedom of
speech and of the press be eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity

under certain circumstances can deprive an accused of his due process
right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that
to warrant a finding of prejudicial publicity there must be allegation and
proof that the judges have been unduly influenced, not simply that they
might be, by the barrage of publicity. In the case at bar, we find nothing in
the records that will prove that the tone and content of the publicity that
attended the investigation of petitioners fatally infected the fairness and
impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal
effects of publicity on the sense of fairness of the DOJ Panel, for these are
basically unbeknown and beyond knowing. To be sure, the DOJ Panel is
composed of an Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal investigation is a factor to
consider in determining whether they can easily be blinded by the klieg
lights of publicity. Indeed, their 26-page Resolution carries no indubitable
indicia of bias for it does not appear that they considered any extra-record
evidence except evidence properly adduced by the parties. The length of
time the investigation was conducted despite its summary nature and the
generosity with which they accommodated the discovery motions of
petitioners speak well of their fairness. At no instance, we note, did
petitioners seek the disqualification of any member of the DOJ Panel on
the ground of bias resulting from their bombardment of prejudicial
publicity." (emphasis supplied)

Applying the above ruling, we hold that there is not enough evidence to

warrant this Court to enjoin the preliminary investigation of the petitioner
by the respondent Ombudsman. Petitioner needs to offer more than hostile
headlines to discharge his burden of proof.131 He needs to show more weighty
social science evidence to successfully prove the impaired capacity of a judge to
render a bias-free decision. Well to note, the cases against the petitioner are still
undergoing preliminary investigation by a special panel of prosecutors in the
office of the respondent Ombudsman. No allegation whatsoever has been made

Page 114 of 349

by the petitioner that the minds of the members of this special panel have already
been infected by bias because of the pervasive prejudicial publicity against him.
Indeed, the special panel has yet to come out with its findings and the Court
cannot second guess whether its recommendation will be unfavorable to the
petitioner.
1âwphi1.nêt

The records show that petitioner has instead charged respondent Ombudsman
himself with bias. To quote petitioner's submission, the respondent Ombudsman
"has been influenced by the barrage of slanted news reports, and he has buckled
to the threats and pressures directed at him by the mobs."132 News reports have
also been quoted to establish that the respondent Ombudsman has already
prejudged the cases of the petitioner133 and it is postulated that the prosecutors
investigating the petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner

is insubstantial. The accuracy of the news reports referred to by the petitioner
cannot be the subject of judicial notice by this Court especially in light of the
denials of the respondent Ombudsman as to his alleged prejudice and the
presumption of good faith and regularity in the performance of official duty to
which he is entitled. Nor can we adopt the theory of derivative prejudice of
petitioner, i.e., that the prejudice of respondent Ombudsman flows to his
subordinates. In truth, our Revised Rules of Criminal Procedure, give
investigation prosecutors the independence to make their own findings and
recommendations albeit they are reviewable by their superiors. 134 They can be
reversed but they can not be compelled cases which they believe deserve
dismissal. In other words, investigating prosecutors should not be treated like
unthinking slot machines. Moreover, if the respondent Ombudsman resolves to
file the cases against the petitioner and the latter believes that the findings of
probable cause against him is the result of bias, he still has the remedy of
assailing it before the proper court.

VI. Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will
now acquire a different dimension and then move to a new stage - - - the Office
of the Ombudsman. Predictably, the call from the majority for instant justice will
hit a higher decibel while the gnashing of teeth of the minority will be more
threatening. It is the sacred duty of the respondent Ombudsman to balance the
right of the State to prosecute the guilty and the right of an accused to a fair
investigation and trial which has been categorized as the "most fundamental of
all freedoms."135To be sure, the duty of a prosecutor is more to do justice and less
to prosecute. His is the obligation to insure that the preliminary investigation of

Page 115 of 349

the petitioner shall have a circus-free atmosphere. He has to provide the restraint
against what Lord Bryce calls "the impatient vehemence of the majority." Rights
in a democracy are not decided by the mob whose judgment is dictated by rage
and not by reason. Nor are rights necessarily resolved by the power of number
for in a democracy, the dogmatism of the majority is not and should never be the
definition of the rule of law. If democracy has proved to be the best form of
government, it is because it has respected the right of the minority to convince
the majority that it is wrong. Tolerance of multiformity of thoughts, however
offensive they may be, is the key to man's progress from the cave to civilization.
Let us not throw away that key just to pander to some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the

respondent Gloria Macapagal-Arroyo as the de jure 14th President of the Republic
are DISMISSED.

Page 116 of 349

G.R. No. 189834               March 30, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, 
vs.
JAY MANDY MAGLIAN y REYES, Accused-Appellant.
DECISION
VELASCO, JR., J.:

This is an appeal from the December 23, 2008 Decision 1 of the Court of Appeals
(CA) in CA-G.R. CR-H.C. No. 02541, which affirmed the May 8, 2006 Decision in
Criminal Case No. 8393-00 of the Regional Trial Court (RTC), Branch 22 in Imus,
Cavite. The RTC found accused Jay Mandy Maglian guilty of parricide.

The Facts

An Information2 charged the accused as follows:

That on or about the 4th day of January 2000, in the Municipality of Dasmariñas,
Province of Cavite, Philippines, and within the jurisdiction of this Honorable
Court[,] accused with intent to kill, did then and there, willfully, unlawfully, and
feloniously attack, assault, and set on fire Mary Jay Rios Maglian, his lawfully
wedded spouse, who as a result sustained 90% Third Degree Burns on the face
and other vital parts of the body that caused her death, to the damage and
prejudice of the heirs of the said Mary Jay Rios Maglian.

During his arraignment, the accused pleaded "not guilty."

The prosecution presented witnesses Lourdes Rios, Norma Saballero, Dr.

Ludovino Lagat, Amy Velasquez, and Ramon Orendain. The defense, on the
other hand, presented accused Maglian, Atty. Ma. Angelina Barcelo, Atty.
Rosemarie Perey-Duque, Police Officer 3 (PO3) Celestino San Jose, and
Lourdes Panopio as witnesses.

The facts established during the trial follow.

The accused is a businessman engaged in the lending business and the buying
and selling of cars and real estate. He and Atty. Mary Jay Rios (Mary Jay) were
married on January 29, 1999. They had a son, Mateo Jay.3

On January 4, 2000, the accused and Mary Jay were having dinner at their home
in Dasmariñas, Cavite when they got into an argument. The accused did not
want Mary Jay to attend a party, causing them to fight. Incensed, the accused
collected the clothes that Mary Joy had given him for Christmas and told her he

Page 117 of 349

would burn them all and started pouring kerosene on the clothes. Mary Jay tried
to wrestle the can of kerosene from him and, at the same time, warned him not to
pour it on her. Despite his wife’s plea, the accused still poured gas on her, thus
setting both the clothes and his wife on fire.4

The accused brought Mary Jay to the De La Salle University Medical Center in
Dasmariñas. After four days, she was transferred by her aunt to the burn unit of
the East Avenue Medical Center in Quezon City, where her condition improved.
Subsequently, however, the accused transferred her to St. Claire Hospital, which
did not have a burn unit. Since her condition deteriorated, Lourdes Rios, Mary
Jay’s mother, had her transferred to the Philippine General Hospital (PGH) in
Manila but she was no longer able to recover. Before she expired, she told her
mother what had happened to her, declaring, "Si Jay Mandy ang nagsunog sa
akin. (Jay Mandy burned me.)" She passed away on February 24, 2000.5

The accused, in his defense, said the burning incident was completely
accidental. He said it was Mary Jay who was being difficult while they were
arguing. She threatened to throw away the clothes he had given her. To spite
her, he also took the clothes that she had given him and told her he would burn
them all. He then got a match and a gallon of kerosene. Mary Jay caught up with
him at the dirty kitchen and took the match and kerosene from him. In the
process, they both got wet from the spilled kerosene. She got angry at how he
was looking at her and screamed, "Mandy, Mandy, wag yan, wag yan, ako na
lang ang sunugin mo. (Mandy, don’t burn that, burn me instead.)"

Accused, trying to avoid further provoking his wife, left his wife and went upstairs
to his son. While climbing the stairs, he heard Mary Jay shouting, "Mandy,
Mandy, nasusunog ako. (Mandy, I’m burning.)" He ran down the steps and saw
the blaze had reached the ceiling of the kitchen. He embraced his wife and called
out to his mother to help them. He poured water on her when the fire could not
be put out and brought her to the living room. He then carried Mary Jay to the car
while shouting for help from the neighbors. In the process, he sustained burns on
his legs and arms.6

While Mary Jay was still confined at the East Avenue Medical Center, the
accused learned from a certain Judge Tanguanco that using "red medicine"
would help heal his wife’s burn wounds. The hospital, however, did not allow him
to use the "red medicine" on Mary Jay. He thus had his wife transferred to PGH.
When there was no space at the hospital, she was transferred to St. Claire
Hospital with the help of a certain Judge Español. The doctors at St. Claire
advised him to stop using the "red medicine" on his wife when her wounds
started to get worse and began emitting a foul odor.7

Page 118 of 349

The accused asserted that his mother-in-law, Lourdes Rios, and their
laundrywoman, Norma Saballero, accused him of burning his wife since his
wife’s family had been angry with him ever since they got married. His mother-in-
law and Mary Jay’s siblings used to ask money from them and would get angry
with him if they did not receive any help.8

The accused likewise claimed that his late wife made a dying declaration in the
presence of PO3 Celestino San Jose and Atty. Rosemarie Perey-Duque. This
allegation was corroborated by PO3 San Jose, who testified that Mary Jay was a
friend and he had visited her at East Avenue Medical Center on January 13,
2000. He was there to take Mary Jay’s statement upon instructions of Chief
Major Bulalacao.9 PO3 San Jose narrated the incident during his direct
examination by Atty. Bihasa:

Q What, if any, was the reply of Atty. [Mary Joy] Rios?

A She nodded her head.

Q And after that, what happened next:

A I told her that I will get her statement and she told me that she could give her
statement.

Q And after Atty. Rios told you that she was capable of giving her statement,
what if any transpired?

A I took her statement, which was in my handwriting.

Q Her statement was in your handwriting but who uttered those statements?

A It was Atty. Rios.10

Atty. Duque testified that the last time she spoke with Mary Jay was on January
13, 2000, when she visited her at the hospital along with PO3 San Jose. The
statements of Mary Jay were reduced into writing and Atty. Duque helped in
lifting the arm of the patient so that she could sign the document.11

The Ruling of the Trial Court

The RTC rendered its Decision on May 8, 2006, the dispositive portion of which
reads:

Page 119 of 349

WHEREFORE, premises considered, this Court finds and so it hereby holds that
the prosecution had established the guilt of the accused JAY MANDY MAGLIAN
y REYES beyond reasonable doubt and so it hereby sentences him to suffer the
penalty of RECLUSION PERPETUA.

Inasmuch as the civil aspect of this case was prosecuted together with the
criminal aspect, the accused is also hereby ordered to indemnify the heirs of the
deceased the following amounts of:
a. Php500,000 as actual damages
b. Php500,000 as moral damages,
c. Php200,000 as exemplary damages,
d. Php200,000 as attorney’s fees; and
e. Cost of suit against the accused.
SO ORDERED.12

The Ruling of the Appellate Court

On appeal, accused-appellant faulted the trial court for not giving credence to the
dying declaration Mary Jay made to her friends who became defense witnesses.
He averred that the trial court erred in not admitting the deposition by oral
examination of Atty. Ma. Angelina Barcelo which would corroborate the
testimonies of the defense witnesses regarding the handwritten dying declaration
of Mary Jay. The trial court was also questioned for giving credence to the
perjured and biased testimonies of prosecution witnesses Lourdes Rios and
Norma Saballero. Lastly, accused-appellant averred that the trial court
erroneously disallowed the defense from presenting Dr. Ma. Victoria Briguela, a
qualified psychiatrist, who could testify that Mary Jay’s mental, psychological,
and emotional condition on February 24, 2000 was disoriented and she could not
have made a dying declaration on said date.

The CA upheld the ruling of the trial court. The dying declaration made by Mary
Jay to her mother Lourdes and laundrywoman Norma had all the essential
requisites and could thus be used to convict accused-appellant. It noted that
while the testimonies of Lourdes and Norma on the dying declaration had some
inconsistencies, these were immaterial and did not affect their credibility. It
observed that no ill motive was presented and proved as to why the
prosecution’s witnesses would make false accusations against accused-
appellant.

Hence, we have this appeal.

Page 120 of 349

On December 14, 2009, this Court required the parties to submit supplemental
briefs if they so desired. The People, represented by the Office of the Solicitor
General, manifested that it was adopting its previous arguments.

The Issue

In his Supplemental Brief, accused-appellant raises the following issue:

Whether the guilt of accused-appellant has been established beyond reasonable

doubt.

Accused-appellant contends that (1) he never or did not intend to commit so

grave a wrong as that committed or so grave an offense as the felony charged
against him; and (2) that he voluntarily, and of his own free will, surrendered or
yielded to the police or government authorities. He claims that the victim’s dying
declaration showed that what happened to her was an accident. He avers that
this was corroborated by three witnesses. The victim’s attending physician, he
insists, also testified that he was told by the victim that what happened to her was
an accident.

If not acquitted, accused-appellant argues that, in the alternative, his sentence

must be reduced due to mitigating circumstances of no intention to commit so
grave a wrong and voluntary surrender. He claims he is entitled to the latter since
he voluntarily surrendered to the authorities before criminal proceedings were
commenced against him. The reduction of his sentence, he contends, must be by
at least another degree or to prision mayor or lower.

The Ruling of the Court

We affirm accused-appellant’s conviction.

Dying declaration

While witnesses in general can only testify to facts derived from their own
perception, a report in open court of a dying person’s declaration is recognized
as an exception to the rule against hearsay if it is "made under the
consciousness of an impending death that is the subject of inquiry in the
case."13 It is considered as "evidence of the highest order and is entitled to utmost
credence since no person aware of his impending death would make a careless
and false accusation."14

Page 121 of 349

The Rules of Court states that a dying declaration is admissible as evidence if
the following circumstances are present: "(a) it concerns the cause and the
surrounding circumstances of the declarant’s death; (b) it is made when death
appears to be imminent and the declarant is under a consciousness of impending
death; (c) the declarant would have been competent to testify had he or she
survived; and (d) the dying declaration is offered in a case in which the subject of
inquiry involves the declarant’s death."15 The question to be answered is which
dying declaration satisfies the aforementioned circumstances, the one made by
Mary Jay to Lourdes and Norma, or the one she made before Atty. Duque and
PO3 San Jose.

Accused-appellant contends that his late wife’s dying declaration as told to the
defense witnesses Atty. Duque and PO3 San Jose effectively absolved him from
any wrongdoing. However, it is the dying declaration presented by the
prosecution that satisfies all the requisites provided in the Rules. In contrast, the
dying declaration for the defense did not show that Mary Jay’s death at the time
of said declaration appeared to be imminent and that she was under a
consciousness of impending death.

Moreover, We defer to the factual finding that the witnesses for the prosecution
were more credible. Mary Jay’s dying declaration to her mother Lourdes and to
Norma showed that accused-appellant was the one who set her in flames.
Lourdes and the Maglians’ laundrywoman Norma both testified that Mary Jay,
moments before her actual death, told them that it was accused-appellant who
was responsible for burning her. Lourdes and Norma both testified that at the
time of May Jay’s declaration, she was lucid and aware that she was soon going
to expire. Furthermore, the so-called dying declaration made by Mary Jay to
defense witnesses Atty. Duque and PO3 San Jose suffers from irregularities. The
dying declaration allegedly made to Atty. Duque and PO3 San Jose was
handwritten by the latter but he did not have it sworn under oath. We reiterate too
that it was not clear that it was executed with the knowledge of impending death
since the statements were made more than a month before Mary Jay died.

We agree with the trial and appellate courts that Lourdes and Norma were both
credible witnesses and had no motive to lie about Mary Jay’s dying declaration.
The appellate court correctly pointed out that although Lourdes was Mary Jay’s
mother, this relationship did not automatically discredit Lourdes’ testimony. And
while accused-appellant alleged that Lourdes as his mother-in-law did not
approve of him, he could not give any improper motive for Norma to falsely
accuse him. Between the two competing statements of the two sets of witnesses,

Page 122 of 349

the one presented by the prosecution should clearly be given more weight as it
satisfies the requisites of an admissible dying declaration.

No intent to commit so grave a wrong

The Revised Penal Code provides under Article 13(3) the mitigating
circumstance that the offender had no intention to commit so grave a wrong as
that committed. We held, "This mitigating circumstance addresses itself to the
intention of the offender at the particular moment when the offender executes or
commits the criminal act."16 We also held, "This mitigating circumstance is
obtaining when there is a notable disparity between the means employed by the
accused to commit a wrong and the resulting crime committed. The intention of
the accused at the time of the commission of the crime is manifested from the
weapon used, the mode of attack employed and the injury sustained by the
victim."17

Aiming for this mitigating circumstance, accused-appellant once again relies on

the statements of the defense witnesses that Mary Jay told them what happened
to her was an accident. However, as earlier discussed, Mary Jay’s dying
declaration contradicts the alleged exculpatory statement she earlier made to the
defense witnesses. Moreover, the prosecution took pains in court to demonstrate
that fighting over the kerosene container would not have caused Mary Jay to be
drenched in kerosene. As aptly explained by the trial court:

The court is convinced that the deceased did not take possession of the gallon
container with kerosene. The accused had full control and possession of the
same. He is a bulky and very muscular person while the deceased was of light
built, shorter, smaller and weaker. When a demonstration was made in open
court about the struggle for possession of the container, it was shown that the
contents of the same did not spill owing to the little amount of liquid and its
narrow opening. To be able to wet 90 percent of the body surface the kerosene
content of the gallon container must have been poured over the head of the
deceased. This explains why when she got ignited, the flames rose up to the
ceiling and burned her from head to toe.18

It is extremely far-fetched that accused-appellant could accidentally pour

kerosene on his wife and likewise accidentally light her up and cause third
degree burns to 90% of her body. We, thus, agree with the trial court’s finding
that accused-appellant knew the fatal injuries that he could cause when he
poured kerosene all over his wife and lit a match to ignite a fire. There was no
disparity between the means he used in injuring his wife and the resulting third

Page 123 of 349

degree burns on her body. He is, thus, not entitled to the mitigating circumstance
under Art. 13(3) of the Code.

Voluntary surrender

An accused may enjoy the mitigating circumstance of voluntary surrender if the

following requisites are present: "1) the offender has not been actually arrested;
2) the offender surrendered himself to a person in authority or the latter’s agent;
and 3) the surrender was
voluntary.http://www.lawphil.net/judjuris/juri2009/apr2009/gr_172832_2009.html -
fnt24"19 We explained, "The essence of voluntary surrender is spontaneity and
the intent of the accused to give himself up and submit himself to the authorities
either because he acknowledges his guilt or he wishes to save the authorities the
trouble and expense that may be incurred for his search and capture."20

To avail himself of this mitigating circumstance, accused-appellant claims that he

voluntarily yielded to the police authorities on October 14, 2002, or before the
commencement of the criminal proceedings against him. He avers that this claim
is backed by the records of the case and a certification made by the Dasmariñas
Police Station. He contends that both the RTC and the CA inexplicably did not
appreciate this mitigating circumstance in his favor.

A review of the records shows that accused-appellant on October 16, 2000 filed
with the Department of Justice (DOJ) a Petition for Review of the Resolution of
the private prosecutor in the instant case. Subsequently, a warrant of arrest for
the parricide charge was issued against him on October 30, 2000. 21 However, a
Motion to Defer Implementation of Warrant of Arrest was filed by accused on
November 13, 200022 and was granted by the RTC on December 12, 2000 in
view of the petition for review he had filed before the DOJ.23 On September 11,
2002, the DOJ issued a Resolution24 denying the petition of accused-appellant.
The defense later submitted a Certification25issued by the Philippine National
Police-Dasmariñas Municipal Police Station dated October 18 2002 stating the
following:

THIS IS TO CERTIFY that the following are excerpts fom the entries on the
Official Police Blotter of Dasmariñas Municipal Police Station, appearing on page
0331 and 0332, blotter entry nos. 1036 and 1047 respectively, dated 15 October
2002, quoted verbatim as follows:

150740H October 2002 – "P/I Apolinar P. Reyes reported that one Jaymandy
Maglian y Reyes, 30 years old, resident of #24 Bucal, Sampalok II, Dasmariñas,
Cavite, with Warrant of Arrest issued by RTC Branch 21, Imus, Cavite, in CC#

Page 124 of 349

8393-00 for Parricide, voluntarily surrendered to him on October 14, 2002.
Subject is turned over to this station on this date".

151350H October 2002 – "One Jaymandy Maglian was transferred to BJMP and
escorted by P/I Apolinar Reyes".

(Entries written by SPO3 Ricardo V. Sayoto – duty desk officer)

We find that in the case of accused-appellant, all the elements for a valid
voluntary surrender were present. Accused-appellant at the time of his surrender
had not actually been arrested. He surrendered to the police authorities. His
surrender was voluntary, as borne by the certification issued by the police. There
is, thus, merit to the claim of accused-appellant that he is entitled to the
mitigating circumstance of voluntary surrender.

It bears noting that parricide, however, according to Art. 246 of the Revised
Penal Code, is punishable by two indivisible penalties, reclusion perpetua to
death. The Code provides under Art. 63(3) that when a law prescribes a penalty
with two indivisible penalties and the commission of the act is attended by some
mitigating circumstance and there is no aggravating circumstance, the lesser
penalty shall be applied. But Section 3 of Republic Act No. (RA) 9346 (An Act
Prohibiting the Imposition of Death Penalty in the Philippines) provides that
"persons convicted of offenses punished with reclusion perpetua, or whose
sentences will be reduced to reclusion perpetua, by reason of this Act, shall not
be eligible for parole under Act No. 4103, otherwise known as the Indeterminate
Sentence Law, as amended." The proper sentence in the instant case would,
thus, be reclusion perpetua which is still the lesser penalty.

Anent an issue previously raised by accused-appellant and which was not

discussed by the CA, while accused-appellant claims that the trial court erred in
not admitting the deposition by oral examination of Atty. Ma. Angelina Barcelo,
We note that the records show that an Order 26 was issued by Judge Norberto J.
Quisumbing, Jr. granting accused-appellant’s motion to take oral deposition of
Atty. Barcelo.

Pecuniary liability

The trial court ordered accused-appellant to pay PhP 500,000 as actual

damages; PhP 500,000 as moral damages; PhP 200,000 as exemplary
damages; and PhP 200,000 as attorney’s fees.

Page 125 of 349

We modify the monetary awards, those being excessive. We award a civil
indemnity ex delicto as this is "mandatory upon proof of the fact of death of the
victim and the culpability of the accused for the death." 27 As We ruled, "When
death occurs due to a crime, the following may be recovered: (1) civil indemnity
ex delicto for the death of the victim; (2) actual or compensatory damages; (3)
moral damages; (4) exemplary damages; (5) attorney’s fees and expenses of
litigation; and (6) interest, in proper cases."28 Current jurisprudence pegs the
award of civil indemnity at PhP 50,000.29

Moral damages should also be awarded even absent allegation and proof of the
emotional suffering by the victim’s heirs. The amount should be decreased to
PhP 50,000 in accordance with jurisprudence.30 Exemplary damages in the
lowered amount of PhP 30,000 are likewise in order in this case charging
parricide, as the qualifying circumstance of relationship is present.31

As to the attorney’s fees awarded, these must be reasonable in accordance with

Art. 2208 of the Civil Code.32 We, thus, reduce the attorney’s fees to a more
reasonable amount of PhP 50,000.

WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CR-H.C. No.

02541 affirming the RTC Decision that found accused-appellant guilty beyond
reasonable doubt of parricide is AFFIRMED with MODIFICATION.  The fallo of
1âwphi1

the RTC Decision should be modified to read, as follows:

WHEREFORE, premises considered, this Court finds and so it hereby holds that
the prosecution had established the guilt of the accused JAY MANDY MAGLIAN
y REYES beyond reasonable doubt and so it hereby sentences him to suffer the
penalty of RECLUSION PERPETUA.

Inasmuch as the civil aspect of this case was prosecuted together with the
criminal aspect, the accused is also hereby ordered to indemnify the heirs of the
deceased the following amounts of:
a. PhP 500,000 as actual damages;
b. PhP 50,000 as civil indemnity;
c. PhP 50,000 as moral damages;
d. PhP 30,000 as exemplary damages;
e. PhP 50,000 as attorney’s fees; and
f. Cost of suit against accused-appellant.

Page 126 of 349

G.R. No. 94545 April 4, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
FRANCISCO SANTOS y BAINGAN @ PRAN and VILLAMOR
ASUNCION, accused,
FRANCISCO SANTOS y BAINGAN @ PRAN, accused-appellant.
PANGANIBAN, J.:

The threshold issue here is whether the antemortem statement of the deceased

identifying the accused constitutes a dying declaration sufficient to sustain the
conviction of appellant.

This is an appeal from the Decision  of the Regional Trial Court of Cabarroguis,
1

Quirino, Branch 31, promulgated on June 28, 1990, in Criminal Case No. 615,
finding Appellant Francisco Santos y Baingan guilty beyond reasonable doubt of
murder. The dispositive portion  thereof reads:
2

IN VIEW OF ALL THE FOREGOING, the guilt of the accused having

been proven beyond reasonable doubt, the accused is hereby
sentenced to reclusion perpetua and to indemnify the heirs of the
victim in the amount of Thirty Thousand (P30,000.00) Pesos plus all
the accessory penalties provided for by law. The detention of the
accused shall be fully credited in his favor.

Cost against the accused.

SO ORDERED.

Appellant was charged with murder by Provincial Fiscal Anthony A. Foz in an

Information  dated November 18, 1987 which reads:
3

That on or about 7:30 o'clock in the evening of September 18, 1987

in Barangay Ponggo, Municipality of Nagtipunana, Province of
Quirino, Philippines and within the jurisdiction of this Honorable
Court, the abovenamed accused, conspiring, confederating and
mutually helping one another and armed with a long firearm of
undetermined caliber, did then and there, with intent to kill and with
evident premeditation and treachery, shot one David Ambre which
caused his instant death.

That the following aggravating circumstances attended the

commission of the crime:

Page 127 of 349

 1. That the crime was committed during nighttime to insure impunity
of the accused;

2. That the accused used unlicensed firearms in the commission of

the crime.

CONTRARY TO LAW.

Upon arraignment, appellant, assisted by his counsel de parte, Atty. Ernesto S.

Salunat, pleaded not guilty. Trial proceeded against appellant only. Accused
Villamor Asuncion remained at large. Thereafter, the trial court rendered the
assailed Decision. Hence, this appeal.

The Facts

Version of the Prosecution

The prosecution presented witnesses Corazon and Pedro Dayao and Lolita
Ambre to testify on the circumstances of the crime; and Dr. Teodomiro Hufana
Jr., on the results of the autopsy he conducted.

Corazon Dayao, 25, married, was visiting at the Ambre residence to see her
husband Pedro, who was the driver of Mr. & Mrs. David Ambre. That evening of
September 18, 1987 at about 7:30 o'clock, she was in the terrace of the victim's
house sorting dirty clothing. The night was dark and it was raining, but a
Coleman lamp was placed atop the cement railing (pasamano) of the terrace,
lighting an area a terrace rail separated her from David, who was around half a
meter away from her. She noticed Lolita beside her husband. Just then, she
heard five (5) successive gunshots, and she saw David fall prostrate to the
ground. Seeing that David wanted to say something, she called Lolita's attention
and said "Manang, adda kayat nga ibaga ni Manong kenka. (Ate, it looks like
Kuya has something to tell you.)"  She pulled Lolita towards the victim. Lolita
4

asked her husband who had shot him and the latter answered, "It was Pare
Pran."  She heard David's words because, like Lolita, she had also placed her
5

head near David who was still alive at the time.

Lolita Ambre, the widow, testified that she and her husband had just come out of
their canteen. She washed her feet while her husband, facing north, looked at the
driver's side of their jeep. Then she heard a gunshot and her husband cried,
"Apo!" Startled, Lolita jumped up and down until she was told by Corazon that
her husband wanted to tell her something. When she went near him, he said,
"Pare Pran."  She knew that her husband was referring to Francisco Santos, the
6

Page 128 of 349

godfather of their youngest child. She held her husband, but their driver took her
inside the house.

Lolita, the widow, 34, housekeeper, gave a sworn statement  to Pfc. Domingo D.
7

Cuntapay on September 25, 1987 implicating only Asuncion. The following day,
during the preliminary investigation, she executed an affidavit before Judge
Felipe Castaneta, disclosing that her husband's assailant was Francisco
Santos.  On October 5, 1987, she executed another sworn statement before Pfc.
8

Cuntapay reiterating her previous statement to Judge Castaneda. 9

Pedro Dayao Jr., 29, the Ambre spouses' driver, testified that he was inside the
Ambres' house that evening, rolling a rope, when he heard five (5) gun bursts. It
was followed by the cry of Lolita bellowing, "Jun, they have shot your
Manong!"   He rushed outside and then escorted Lolita and his wife Corazon
10

back to the house.

Dr. Teodomiro Hufana Jr., 58, married, municipal health officer

of Maddela, Quirino, conducted an autopsy on the victim's cadaver. In his
report,   the following postmortem findings appear:
11

Gunshot wound (entrance) roughly oval in shape about-7 mm. in dia.

surrounded by contusso-abraded colar located at the postero-lateral
aspect of the left side of the body and about 7 cm. below the angle
of the axillary fossa, directed inward to the thoracic cavity injuring
the left lung and bisecting the lower ventricle of the heart and
injuring the right lobe of the lungs making an exit at the right
hypochondriac region about 2 cm. in dia. and about 9 cm. below the
nipple.

Gunshot wound thru and thru at the latero-medical aspect of the

distal third of forearm (entrance) about 6 mm. in dia. medial aspect
making an exit at the lateral aspect of the forearm with a distance
between the entrance and exit about 1.3 cm.

Cause of Death: Severe internal hemorrhage secondary to gunshot

wound.

He further clarified that, although the Certificate of Death he issued indicated that
the "Interval Between Onset and Death" was "instant," he was sure the victim still
had "a few seconds or minute" before he actually died.   He opined that during
12

those few seconds or minute; it was possible for a victim to utter "about two or
three words," which could be "audible" and "intelligible." Death due to bullet

Page 129 of 349

wounds in the heart or lungs is not as instantaneous as that due to a bullet in the
head.

Version of the Defense

Testifying in his own behalf, appellant, 41, married, declared that he and the
deceased had treated each other like brothers. Interposing alibi, he swore that
when the crime was committed, he was at his house waiting for his sick sister's
arrival from Baguio. He did not leave his house until the following day when he
learned of the victim's death. He and his wife even went to visit the wake of the
deceased.   He further denied that his alias was "Pran." It was Frank. 
13 14

He also testified that a certain Mrs. Zeny Bayaua, a close friend of the widow,
approached and admitted to him, "I know that you are not the one who killed, but
you tell us those persons who killed." He told her that he did not know the identity
of the victim's killer. 
15

To buttress this, the defense counsel, Atty. Ernesto Salunat, 44, married, testified
that on one occasion, Mrs. Bayaua asked him to "(p)lease convince your client
Mr. Santos to tell who really killed Mr. Ambre." He retorted that he was
concerned only with appellant; to which Lolita and Mrs. Bayaua responded,
"Kung sabihin lang ni pare Frank kung sino ang pumatay sa asawa ko hindi
namin siya ididiin. " 
16

The defense also presented Mariano Pimentel, 49, married, Governor of Quirino,
who testified that his cousin-in-law Zeny Bayaua told him, "Manong adda gayam
kenka ni Francisco Santos. Manong awan met ket ti basol na ngem pinabasol mi
laeng isuna tapno ipudno na no asinno ti talaga nga pimmatay. (Kuya, Francisco
Santos is staying with you; actually, Kuya, he is not the real assailant but we just
put the blame on him to pressure him to say who the real culprit is.)"   He 17

summoned appellant who used to work as a janitor in the capitol during

weekends. He was told by appellant that he (appellant) did not know who killed
the victim. Hence, he told appellant to tell his lawyer what he had heard from
Mrs. Bayaua.

Dr. David Longid, 42, a physician-surgeon and a former municipal health officer
in Tabuk, was called as an expert witness to establish that the death of the victim
was instantaneous. However, Dr. Longid admitted that the "interval between
onset and death" of a person who had sustained wounds in the heart and lungs
depended on the caliber of the gun used and on his physical makeup. If he was
of strong build, his heart would still pump blood for a while and it would take more
than ten seconds before he would die. He declined to state whether it was

Page 130 of 349

impossible for the victim to speak during those few seconds preceding
death. 18

The Trial Court's Ruling

The trial court considered the words of the victim as a dying declaration and a
positive identification of appellant against which the latter's defense of alibi, the
weakest defense in criminal cases, cannot prevail.

Issues

In his brief,   appellant assigns the following alleged errors of the trial court:
19

The lower court erred in believing that the victim David Ambre made
an alleged dying declaration, despite evidence that death was
instantaneous and that he could not have uttered imputing words
after he was shot.

II

Assuming that the deceased could have made a dying declaration,

the trial court nonetheless erred in finding appellant to be the culprit
although what was supposedly uttered by the deceased were merely
the words "Pare Pran."

III

The court a quo erred in totally believing prosecution witnesses

Lolita Vda. De Ambre and Corazon Dayao as regards their having
allegedly heard the deceased impute the crime to appellant,
although the circumstances then obtaining negate such testimonies.

IV

The lower court erred in convicting appellant of the crime charged,

instead of acquitting him therefor.

The threshold issue is whether the last words of the deceased qualify as a dying
declaration sufficient to sustain appellant's conviction.

Page 131 of 349

Appellant contends that the victim had no chance to make a dying declaration, let
alone make any utterance, in view of his instantaneous death; that
assuming arguendo that he was able to do so, the uttered words failed to impute
the crime to him; and that, under the circumstances, it was incredible for the
prosecution witnesses to have heard the deceased say anything. These
contentions are not persuasive. We shall discuss the issues in seriatim.

First Issue: The Instantaneous Death

The evidence on record does not at all support appellant's contention that the
victim died instantaneously as to render a dying declaration physically
impossible. Despite the statement in the victim's Certificate of Death that the
"interval between onset and death" was "instant," the undisputed fact as
positively and categorically testified to by Corazon and Lolita is that the victim
remained alive for a few seconds during which he was able to say "Pare Pran."
This view is bolstered by the expert witnesses, Dr. Hufana and Dr. Longid himself
who was presented by the defense, who both testified that a bullet that had hit
the heart and lungs did not necessarily result in instantaneous death.

The testimony of the two doctors is bolstered by experts on the matter. Thus
Pedro Solis, in his treatise on legal medicine, states:

The heart may fail and cause death due to an existing disease
independent of trauma. Coronary insufficiency, myorcardial fibrosis,
valvular lesion or tamponade due to the rupture of the ventricle are
common lesions.

Wounds of the heart are produced by sharp instruments, bullets or

the sharp ends of the fractured ribs. Contusion of the heart is easily
produced on slight trauma on account of its vascularity. Wounds of
the ventricle if small and oblique are less dangerous than those of
the auricle because of the thickness of its wall. The right ventricle is
the most common site of the wounds due to external violence,
because it is the most exposed part of the heart.

Foreign bodies like bullets, shrapnels, fragments of a shell may be

embedded in the myocardium without any cardiac
embarrassment. The person may live for a long time and may die of
some other causes.   (Emphasis supplied.)
20

Solis opines further that a victim who has sustained injury to the heart may still
be capable of a volitional act like speaking, thus:

Page 132 of 349

 Sometimes it is necessary to determine whether a victim of a fatal
wound is still capable of speaking, walking or performing any other
volitional acts. A dying declaration may be presented by the
prosecutor mentioning the accused as the assailant; the offender
may allege that the physical injuries inflicted by him while the victim
was inside his house and that he walked for some distance where
he fell, or that the victim after the fatal injury made an attempt to
inflict injuries to the accused which justified the latter to give another
fatal blow. The determination of the victim's capacity to perform
volitional acts rests upon the medical witness.

. . . Wounds of the big blood vessels, like the carotid, jugular or even
the aorta, do not prevent a person from exercising voluntary acts or
even from running a certain distance. Penetrating wound of the heart
is often considered to be instantaneously fatal but experience shows
that the victim still be capable of locomotion. Rupture of the organs
is not always followed by death. The victim has for sometime still
retains (sic) the capacity to move and speak.   (Emphasis supplied.)
21

In People vs. Obngayan,   the Court resolved a similar issue of whether the

22

victim could have been conscious, notwithstanding the serious nature of his
injuries, when his antemortem statement was taken. The Court observed:

. . .(')The question as to whether a certain act could have been done

after receiving a given wound,(') according to Wharton and Stilles
(Vol. III, Medical Jurisprudence, p. 212), "is always one that must be
decided upon the merits of a particular case." They cited a case from
Vibert's Precis de Med. Leg., 4th ed., p. 286, where a man after
being shot in the chest threw a lamp at his adversary. The lamp
started a fire; and to extinguish the fire, the wounded man fetched a
pail of water from the court yard. When the fire was extinguished, the
man lay down on bed and died. Vibert performed the autopsy, and
found that the left ventricle of the heart had been perforated by the
revolver's bullet. It is evident from the foregoing that Dr. Acosta's
assertion that the victim of a gunshot wound immediately loses
consciousness, after infliction of the wound, may not be true in all
cases. . .

In the case at bar, it is therefore not amazing that the victim, despite his wounds,
did not immediately lose consciousness and was still able to recognize his
assailant and relay the latter's identity to his wife.

Page 133 of 349

Furthermore, the interval between the shooting and the utterance of appellant's
name did not preclude the possibility of a dying declaration. Corazon testified that
all these took place for a "short time only."   Lolita described the same period in
23

this wise: 
24

Q And what did you do immediately after having heard

the gun report?

A I was jumping and jumping, sir.

Q For how long more or less?

A A short time when the wife of the driver called me to

attend (sic) my husband, sir.

Q Now, this is very important which I would like you to

state, at that short period of time in your estimation, how
many minutes?

A I could not estimate, sir.

Q Not even calculate for how long?

A It was shorter than when I was seated here, sir.

Q Now?

A Yes, sir.

Q You mean coming from the place where you were or

at the place where you were there and take at your
seat? (sic)

A The moment I seated here, sir.

Second Issue: Dying Declaration

We affirm the ruling of the trial court's decision to consider the victims revelation
to Lolita and Corazon as a dying declaration and as a part of res gestae.

That the last words were uttered by the deceased is established by the testimony
of Corazon,   thus:
25

Page 134 of 349

Q What did you do when you saw David Ambre laid flat
from (sic) the ground?

A I called for his wife because he wanted to tell

something, sir.

Q Who wanted to tell something?

A David Ambre, sir.

Q Do you mean to tell that David Ambre still alive when

you saw him? (sic)

A Yes, sir.

Q And what did you do when you saw David Ambre

wanting to say something?

A I pulled his wife and we put our ear(s) near the mouth
of David Ambre, sir.

Q And what happened next when you went near the

body of David Ambre?

A The wife asked from David Ambre who shot him, sir:

Q And what did David Ambre tell his wife?

A He told "it was Pare Pran", sir.

Q Do you know this Pare Pran being referred to by

David Ambre?

A Yes, sir.

Q If he is in Court today, can you point at him?

ANSWER

Yes, sir.

QUESTION

Page 135 of 349

 Will you point at the Pare Pran you mentioned who is
now in Court today?

A There, sir.

(Witness stood up and pointed a man in a blue t-shirt

and identified himself to be Francisco Santos.)

The victim's wife, Lolita,   corroborated Corazon's testimony as follows:

26

COURT

What was the cause of the death of your husband?

ANSWER

They shot him, sir.

COURT

When you say "they shot him", whom are you referring?

ANSWER

Francisco Santos, sir (Witness pointing to Francisco

Santos, the accused in this case).

FISCAL ANTHONY FOZ

Why do you say that it was Francisco Santos who shot

him?

ANSWER

My husband told me.

QUESTION

How did he tell you that it was Francisco Santos who

shot him?

ANSWER

Page 136 of 349

 When my husband was shot, he told me that it was
Francisco Santos who shot him.

Q Will you describe to the court how he told you that it

was Francisco Santos who shot him?

A When he was shot, he shouted Apo!

Q And after that, what happened next?

A And Corazon Dayao called for me.

Q And why did Corazon Dayao call(ed) for you?

A Because my husband as if he wanted to say

something from his look.

Q Now, when you were called by Corazon Dayao that

your husband David Ambre wanted to say something to
you, what did you do?

ANSWER I went near my husband, sir.

COURT Put on record that witness is crying.

FISCAL ANTHONY FOZ

And what did your husband tell you?

ANSWER He uttered "Pare Pran".

QUESTION

And do you know this "Pare Pran" that your husband is

telling?

ANSWER I know him, sir. (Emphasis supplied.)

A dying declaration is entitled to the highest credence because no

person who knows of his impending death would make a careless and false
accusation.   As an exception to the hearsay rule, the requisites for its
27

admissibility are as follows: (1) the declaration is made by the deceased under

Page 137 of 349

the consciousness of his impending death; (2) the deceased was at the time
competent as a witness; (3) the declaration concerns the cause and surrounding
circumstances of the declarant's death; and (4) the declaration is offered in a
criminal care wherein the declarant's death is the subject of inquiry. 28

It must be shown that a dying declaration was made under a realization by the
decedent that his demise or at least, its imminence — not so much the rapid
eventuation of death — is at hand.   This may be proven by the statement of the
29

deceased himself or it may be inferred from the nature and extent of the
decedent's wounds, or other relevant circumstances.  30

In the case at bar, the victim's declaration consisted of the words "Pare Pran."
Under the circumstances, however, he could not have been expected to
articulate his awareness of something so obvious — the inevitability of his
demise — or to have the energy to do so. The nature and extent of said injuries
underscored the seriousness of his condition and they later proved by
themselves that the utterances of the deceased were made under a
consciousness of an impending death.   That his demise thereafter came swiftly,
31

although not instantaneously, further emphasized the victim's realization of the

hopelessness of his recovery.  32

We stress that when a person is at the point of death, every motive for falsehood
is silenced and the mind is induced by the most powerful consideration to speak
the truth. It was the height of jocularity for appellant to have suggested that it was
highly possible that the deceased mentioned his name to Lolita so that she would
tell him to come to decedent's succor, or for another reason. Such conjecture
finds no basis record. On the other hand, this speculation is belied by the clear,
straightforward testimonies of Lolita and Corazon. Despite several attempts,
counsel for the defense failed to make Lolita admit that the victim mentioned
appellant's name for a vague and undefined purpose, other than to identify his
assailant.   Lolita adamantly stuck to her testimony that her husband told her that
33

he was shot by "Pare Pran."   The unrebutted testimony of Corazon further

34

clarified that the victim said those words in answer to his wife's question as to
who shot him.  35

The deceased's condemnatory antemortem statement naming appellant as his

assailant deserves full faith and credit and is admissible in evidence as a dying
declaration.

Furthermore, the same declaration was also properly admitted in evidence by the
trial court as part of res gestae, and rightly so. A declaration made spontaneously
after a startling occurrence is deemed as such when (1) the principal act, the res

Page 138 of 349

gestae, is a startling occurrence; (2) the statements
were made before the declarant had time to contrive or devise; and (3) the
statements concern the occurrence in question and its immediately attending
circumstances.   The utterance of the victim satisfies these three requisites.
36

Clearly, it is admissible as part of the res gestae.

The propriety and the significance of admitting the dying declaration of the victim
under the rule on res gestae is explained by Mr. Justice Florenz D. Regalado,
thus:

The requisites for the admissibility of the victim's ante-mortem

statement as part of the res gestae and also as a dying declaration
are present in this case, hence the same should be admitted under
both exceptions to the hearsay rule. (Citing People vs. Gueron, et
al., L-29365, March 25, 1983, 121 SCRA 115; People vs. Baltao, L-
47686, June 24, 1983, 122 SCRA 859) While the admissibility
thereof would naturally not be affected whether viewed under either
or both consideration the advantage of resting the issue on the
aforesaid dual bases is that its admission would be invulnerable to a
theorized absence of an element of one of said exceptions. This is
particularly important in this case, considering that the very
identification of the assailant and the accuracy thereof are
essentially based on that declaration of the victim.   (Emphasis
37

supplied.)

Third Issue: Credibility of Witness

Appellant assails the credibility of the witness Lolita Ambre because of her delay
in reporting the antemortem declaration. We do not agree. Well-settled is the rule
that delay in reporting the antemortem declaration does not automatically render
the testimony doubtful. Failure to reveal or disclose the assailant's identity at
once does not necessarily affect, much less impair, the credibility of said witness.
The initial reluctance to volunteer information about a criminal case and/or the
unwillingness to be involved in criminal investigation due to fear of reprisal are
common and have been judicially declared to have no effect on credibility.  38

Lolita's reason has been sufficiently explained in her testimony. While she did not
intimate to the police that her husband had identified the assailant when she was
interviewed on the night of the killing, she did reveal her
husband's antemortem statement a week later. Such delay, however, was not
without reason. Lolita testified:

Page 139 of 349

QUESTION According to you, your husband told you
that it was the accused Pare Pran who allegedly kill(ed)
your husband, is it not?

ANSWER Yes, sir.

Q You were investigated by the Police on September

25, 1987, is that correct?

ANSWER Yes, sir.

ATTY. SALUNAT Did you mention to the Police that it

was accused Pare Pran who killed your husband?

ANSWER No, sir.

QUESTION In other words, when you were

investigated, you never mentioned that it was Francisco
Santos who allegedly killed your husband?

ANSWER Not yet sir because I was still afraid at that

time because the accused was not yet apprehended
that time.

Q You were afraid to tell the Police that Francisco

Santos was the villain because he was not yet arrested?

A Yes, sir.

Q Is it not a fact that when you identified Francisco

Santos, the Police will arrest him?

A Yes sir, it was Villamor Asuncion who told the Police

that they have to arrest Francisco Santos.

Q You love your husband?

A Yes, sir.

Q In fact you are crying because you love him so much?

A Yes, sir.

Page 140 of 349

 ATTY. SALUNAT So, why did you not tell the Police
who killed him?

ANSWER Because I was afraid that I would be the next

victim because he was not yet arrested.  39

Fear was therefore the compelling reason why Lolita did not divulge the identity
of appellant when the police first investigated her. Self-preservation is, after all,
the most fundamental of human instincts.   The following day, she lost no time in
40

executing a sworn statement on the matter. She repeated the information before
the municipal judge who conducted the preliminary investigation and thereafter to
the fiscal. On the witness stand, she remained steadfast on the matter
notwithstanding a grueling cross-examination.

Moreover, Corazon also heard the victim's antemortem declaration. She

executed a statement to the police also on September 26, 1987. Even at the trial
of the case, she adhered to her earlier account of what she heard the victim say.

Furthermore, the trial court found the testimonies of Lolita and Corazon to be
credible. Because a trial court has the opportunity to observe the witnesses
firsthand and to note their conduct and demeanor at the witness stand, its
findings on their credibility deserve great weight and respect. In the absence of
any showing that the trial court has overlooked, misapprehended or
misinterpreted such facts or circumstances that materially affect the disposition of
the case, its conclusions on the credibility of witnesses should not be
disturbed.   We have examined the records of this case and we have been
41

unable to find any reason — and the appellant has not shown any — to depart
from this rule.

Fourth Issue: Alibi vs. Dying Declaration

Alibi is one of the weakest defenses that can be resorted to by an accused, not
only because it is inherently weak and unreliable, but also because it is easy to
fabricate without much opportunity to check or rebut it. To establish alibi as a
valid defense, an accused must show that he was at some other place for such a
period of time and that it was physically impossible for him to have been at the
place of the crime during its commission.   In the present case, appellant failed to
42

establish the physically impossibility of his presence at the scene of the crime at
the time of its commission. He anchored his defense on the fact that at that time,
he was in his house which was only about 500 meters from the Ambre
residence.  43

Page 141 of 349

Furthermore, alibi is unavailing as a defense where there is positive identification
of the accused as the perpetrator of the offense, or when there is
an antemortem declaration received in evidence either as a dying declaration or
as part of res gestae,   or both.
44

Treachery

On the other hand, treachery qualifies the killing as murder. This qualifying
circumstance of alevosia is present when an offender employs means and
methods or forms in the execution thereof which tend directly and especially to
insure its execution without risk to himself arising from the defense which the
offended party might make.   Under the cover of darkness, appellant shot an
45

unarmed and unsuspecting victim. The shooting was swift and without warning.
The wounds sustained by the victim bespeak of the futility of any defense he
could have mounted under these circumstances. Means, method or form was
obviously employed in the execution of the felony which insured its commission
without risk to assailant coming from any defense which the victim might have
taken. 
46

The allegation in the Information on the use of an unlicensed firearm in this case
has alerted the Court to appellant's possible separate criminal liability under
Section 1, Presidential Decree No. 1866, following the ruling in People
vs.Quijada.   However, a thorough review of the records reveals that the
47

prosecution abandoned its case against appellant for illegal possession of an

unlicensed firearm. No gun was ever recovered nor presented in evidence, much
less proven to be unlicensed. Thus, the Quijada ruling finds no application in the
case at bar.

All things considered, appellant has been proven guilty beyond reasonable doubt
of the murder of David Ambre.

WHEREFORE, the appeal is hereby DENIED. The assailed decision is

AFFIRMED, except that the indemnification to the heirs is INCREASED to
P50,000.00 in line with prevailing jurisprudence.

Page 142 of 349

G. R. No. 140404 - February 27, 2003
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BONIFACIO ALIBEN,
DIOSDADO NICOLAS and RONNIE NICOLAS, accused-appellants.
DECISION
AZCUNA, J.:

Before us is an appeal from the Decision 1 of the Regional Trial Court, Fifth Judicial
Region, Branch 63, Calabanga, Camarines Sur, in Criminal Case No. RTC 98-236
(Cal), finding appellants Bonifacio Aliben, Diosdado Nicolas and Ronnie Nicolas
guilty beyond reasonable doubt of the crime of Murder and sentencing them to
suffer the penalty of reclusion perpetua.

The Information2 filed against appellants reads:

That on or about 6:00 oclock in the evening of the 5th day of October, 1997, at
Bgy. Siba-o, Calabanga, Camarines Sur, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, with intent to kill and while armed
with a bolo and pieces of wood, conspiring, confederating and mutually helping one
another, with treachery and abuse of superior strength, did then and there willfully,
unlawfully and feloniously attack, beat, stab and employ personal violence upon
Juanito P. Bongon, Sr., the latter thereby sustaining wounds which caused his
death, to the damage and prejudice of his heirs.

ACTS CONTRARY TO LAW.

When arraigned on April 28, 1998, appellants pleaded not guilty. 3 cräläwvirtualibräry

During the hearing of the petition for bail filed by appellants, the prosecution and
the defense presented all their witnesses. After the bail hearing, the respective
counsel for the different parties manifested their agreement that the case be
decided on the merits since they had presented all their witnesses. The trial court
thus considered the case submitted for decision.

The Prosecutions Evidence

Romeo Barsaga, a mat vendor and a resident of Bacacay, Albay, testified that on
October 5, 1997, he was in the house of the victim Juanito Bongon, Sr. in Siba-o,
Calabanga, Camarines Sur, bringing with him mats for sale. Juanito Bongon, Sr.
was in charge of delivering the mats. Barsaga had been in Siba-o several times for
the same purpose and would stay in the residence of Juanito Bongon, Sr. for about
three days until he received the proceeds of the sale.4cräläwvirtualibräry

At around 6:00 o clock in the evening of the said date, Barsaga went out to buy
cigarettes at the store near the house of Floserfida "Puring" Fabricante. Before he
could reach the store, he saw, at a distance of seven (7) meters, three (3) persons
hitting Juanito Bongon, Sr. on the head with pieces of wood and a bolo. He

Page 143 of 349

recognized the faces of the assailants, but did not know their names. Nevertheless,
in court, Barsaga pointed at the man whom he saw strike the victim with a bolo
who identified himself as Bonifacio Aliben. Barsaga also pointed at the two persons
whom he saw hit the victim with pieces of wood and they identified themselves as
Ronnie Nicolas and Diosdado Nicolas. Barsaga declared that he recognized the faces
of the assailants becaused he saw them often at the store whenever he was in
Siba-o.5
cräläwvirtualibräry

Barsaga watched the incident for about four (4) minutes. While Aliben was hacking
the victim, Diosdado Nicolas and Ronnie Nicolas were at the back of the victim. The
witness demonstrated the position of the victim while he was being attacked by
appellants by bowing his head, bending his body towards the ground with his two
hands in front of his chest. Barsaga could not remember how many times Aliben
hacked the victim and did not see which part of the victims body was hit. 6 cräläwvirtualibräry

Barsaga further testified that he got scared after witnessing the incident, so he
returned to the house of the victim. He narrated what he witnessed to the mother
of the victim and a child who were the only ones present during that time. The
following day, he went home to Bacacay because his mats were already sold. He
learned that Juanito Bongon, Sr. was already dead from the relatives of the victim
in Bacacay.7 cräläwvirtualibräry

Floserfida Fabricante, sister of the victim, testified that at around 6:00 o clock in
the evening of October 5, 1997, she was in her residence. She heard a noise that
sounded as though someone was being mauled. She went outside the house and
saw Bonifacio "Pacio" Aliben hacking a person with a bolo, while Diosdado "Dado"
Nicolas and Ronnie Nicolas were also hitting the same person with a piece of wood
many times. She saw Aliben hack the victim once on the upper right side of the
head, just above the forehead. She did not recognize the victim because he was
already lying down. She was about ten (10) meters away from the assailants. 8 cräläwvirtualibräry

After witnessing the incident, Fabricante went inside her house and drank water
because she was scared. After a while, Josefa Bongon arrived and asked Fabricante
if she knew the whereabouts of her husband Juanito Bongon, Sr. Fabricante replied
that she did not know. She informed Josefa Bongon that a person was mauled
outside her house and told her to inquire about it. Josefa Bongon and her son went
to the place of the incident. Afterwards, Fabricante heard Josefa shouting for help.
The following day, October 6, 1997, Fabricante learned that Juanito Bongon, Sr.
was already dead.9 cräläwvirtualibräry

Juanito Bongon, Jr., the victims son and a padyak10 (tricycle) driver, testified that
at around 6:00 o clock in the evening of October 5, 1997, he was in Siba-o,
Calabanga, Camarines Sur, driving his padyak. He was taking two passengers,
Raquel Seguenza and Dalia Requinta, to their respective residences in Siba-o. After
his two passengers had alighted from the padyak, Bongon, Jr. made a U-turn to
proceed to the town proper of Siba-o at which instance he saw appellant Bonifacio

Page 144 of 349

Aliben holding a 24-inch-bolo stained with blood. Rommel Cabiles then approached
Bongon, Jr. and told him that a person was mauled. Wanting to help the victim,
Bongon, Jr. drove to the place of the incident, which was about five (5) meters
away from the house of Ester Nicolas in Siba-o. Bongon, Jr. saw the victim lying
with his face down on the ground, still moaning. He carried the victim and placed
him inside his padyak. After he turned on the motor and the lights of the padyak,
he recognized the victim to be his father, Juanito Bongon, Sr. He immediately
asked his father who mauled him. His father answered Dado and Ronnie, and was
about to say more, but his serious physical condition prevented him from doing so.
By this time, the mother and brother of Bongon, Jr. had arrived. They rushed the
victim to the Bicol Regional Hospital where he was declared dead on arrival. 11 cräläwvirtualibräry

Josefa Bongon ("Josefa" for brevity), wife of the victim, testified that at around
6:00 o clock in the evening of October 5, 1997, she left the house leaving behind
her mother-in-law, her youngest son and Romeo Barsaga. On her way to their
other house in Siba-o, she saw people running around. She was not able to reach
their other house because Dado Nicolas suddenly appeared and was about to bump
her. Dado Nicolas was running fast, away from the direction where the incident
happened. Josefa was then looking for her husband. She saw Pepito Seguenza who
told her that he did not see her husband. She immediately proceeded back to their
house. While she was about three arms length away from their house, she saw her
son carrying the body of her husband, which he placed inside his padyak. 12 cräläwvirtualibräry

Moreover, Josefa testified that while her husband was on board the padyak, her son
Jojo asked her husband who mauled him. Her husband uttered the names Dado and
Ronnie, and was about to say something more, but he was already choking. The
only persons she knew in their barangay with the names Dado and Ronnie were
Dado Nicolas and Ronnie Nicolas. They brought her husband to the Regional
Hospital, but her husband was already dead.13 cräläwvirtualibräry

Josefa testified that they spent P13,000.00 for the funeral services.14 She borrowed
money from the cooperative to defray the funeral expenses of her husband. They
also sold their carabao and pig.15
cräläwvirtualibräry

Josefa declared that she was deeply affected by the death of her husband and could
not sleep, and that she still missed him.16 cräläwvirtualibräry

Dalia Requinta testified that at around 6:00 o clock in the evening of October 5,

1997, she was on her way home on board a padyak together with co-passenger
Raquel Seguenza. As Raquel Seguenza was about to alight, the padyak slowly
turned to the right and its headlight focused on the hand of appellant Bonifacio
Aliben who was holding a 17-inch-bolo stained with blood. Aliben was one (1) meter
away from the padyak and was walking toward the direction of his residence. She
knew the appellants because they resided in the same barangay. 17 cräläwvirtualibräry

Page 145 of 349

Pepito Seguenza corroborated the testimony of Dalia Requinta. He testified that
at around 6:00 o clock in the evening of October 5, 1997, he was in his house
drinking with a visitor. While drinking, he noticed that there was a commotion
outside his house. He went out and while going outside their front yard, he saw
appellant Bonifacio Aliben walking fast with a bloodstained bolo in his hand. He saw
that Alibens bolo was bloody because the headlight of a "motor" lighted Alibens
hand. Aliben was walking toward the direction of his residence. Seguenza went to
the road, and after a while, Mrs. Bongon and her son, Juanito Bongon, Jr. arrived
riding in a padyak. Mrs. Bongon was shouting for help, so Seguenza boarded the
padyak and went with them to bring the victim Juanito Bongon, Sr. to the
hospital.18
cräläwvirtualibräry

Dr. Rey Millena, municipal health officer of Calabanga, Camarines Sur, conducted
the autopsy of the body of the victim. He testified that he found no sign of physical
injuries at the upper and lower extremities of the victims body. The injuries were
more or less concentrated on the head and face.19 cräläwvirtualibräry

His Necropsy Report20 contained the following findings:

External Findings

- height, 159 cms.

- rigor mortis complete.

- post-mortem lividity found at the back, dull red to purplish in color.

- negative sign of relevant physical injury at the upper and lower extremities, chest,
abdomen, and back.

- contusion from fronto-temporal area of head, extending to right side of face,

down to antero-lateral of right side of neck, measuring about 19 cms. x 8 cms.;
with superficial laceration 1.5 cms., horizontal, right side neck; with [abrasion] 1.0
cms. x 2 cms. at the rght cheekbone; with linear laceration 1.0 cms., horizontal,
from lateral canthus of right eyelids.

- contusion of right eyelids, with linear laceration 3 cms. along the upper eyelid.

- contusion and depression of whole right forehead extending to the upper-medial-

half of left forehead; with linear laceration 1.8 cms., oblique towards the medial,
just 2 cms. above right eyebrow; with linear laceration 2 cms., vertical, lower
extremity 4 cms. above left eyebrow, corresponding to the end/edge of contusion
at left forehead. Marked depression from right eye upwards measures 10 cms.;
depression from anterior-upper part of right ear to medial-upper-half of left
forehead (the vertical laceration of 2 cms.) measures 21 cms.

Page 146 of 349

- incised wound, 7 cms., slightly oblique towards the front (edges clean-cut,
presence of cut hairs along the wound), with notching = lacerated wound 1.5 cms.
from upper edge or lip of the incised wound and 2.5 cms. from the upper extremity
of the incised wound; splinter of fractured bone protrudes from the wound and
presence of blood coming out.

Internal Findings

- fracture of right and left parietal bone and fractures at the point of the right
pterion; comminuted fractures, variable in sizes and shapes, of right frontal bone
extending to the upper-medial-half of left. From right supra-orbital ridge of frontal
towards the back of head and up to the edge of the fracture of right parietal bone
measures 17 cms..

- comminuted fractures left parietal bone, near the vertex, largest splinter is
triangular in shape with base posterior and apex anterior.

- [meninges] lacerated and anterior brain tissues crashed and displaced posteriorly.

- fracture of zygomatic process of mastoid and part of zygomatic bone, right.

- fracture of mandible, right.

CAUSE OF DEATH: CARDIO-RESPIRATORY ARREST DUE TO COMMINUTED SKULL

FRACTURES, SECONDARY TO TRAUMATIC FORCE, HEAD.

Dr. Millena testified that the first internal finding was caused by a blunt force which
produced comminuted fractures, variable in sizes and shapes, of the right frontal
bone extending to the upper-medial-half of the left. He explained that "comminuted
fracture" means splintering or fragmentation of the skull bone. Fragmentation of
the bone was concentrated at the right frontal of the right side of the forehead. 21 cräläwvirtualibräry

The second internal finding showed that the victim sustained "comminuted fractures
left parietal bone, near the vertex." Dr. Millena explained that the parietal bone was
near the vertex or top of the skull.22cräläwvirtualibräry

The third internal finding showed that the meninges or the protective covering of
the brain was lacerated and the anterior brain tissues were crushed and displaced
posteriorly. This is in relation to the pressure exerted in the first internal finding. 23 cräläwvirtualibräry

Dr. Millena also found that the victim sustained a fracture on his right cheekbone
and the right side of his lower jaw.24 cräläwvirtualibräry

Dr. Millena opined that the internal injuries were caused by a blunt instrument. He
also found an incised wound, seven (7) centimeters long, at the right side of the
victims head, which may have been caused by a sharp-edged instrument. Hence,

Page 147 of 349

Dr. Millena concluded that more than one instrument was used in inflicting the
injuries sustained by the victim. 25 cräläwvirtualibräry

Dr. Millena declared that the injuries sustained by the victim were fatal injuries. The
injuries immediately caused cardio-respiratory arrest due to comminuted skull
fractures which caused the victims death.26 cräläwvirtualibräry

On cross-examination, Dr. Millena testified that the most fatal injuries sustained by
the victim were those on the right side of his forehead corresponding to the first
internal finding. It was possible that said injuries were caused by three hits of a
blunt instrument on the "right part of the head, left upper parietal part of the
head." Dr. Millena opined that after infliction of said injuries, the victim could no
longer talk and would immediately die.27 cräläwvirtualibräry

SPO1 Carlito Capricho testified that on October 5, 1997, he was the duty

investigator and temporary desk officer at the Police Station of Calabanga. At
around 9:30 o clock in the evening, he recorded in the police blotter (Exhibit C)
that he and SPO4 Leonardo Argamosa had investigated a homicide case which
happened in Barangay Siba-o, Calabanga at about 6:30 o clock in the evening of
said date where a certain Juanito Bongon y Pabiles was found dead with injuries on
different parts of his body.28 cräläwvirtualibräry

At around 11:15 o clock in the evening of the same date, SPO1 Tarala, a member
of the Calabanga Police Station, Barangay Captain William Sanchez of Siba-o and
Ronnie Nicolas arrived at the police station. Ronnie Nicolas had earlier surrendered
to Barangay Captain Sanchez. SPO1 Capricho entered in the police blotter, as an
addendum to his previous entry, that Ronnie Nicolas voluntarily surrendered to
their station and reported that while he was inside their house, the victim Juanito
Bongon, Sr. stoned their house; that when he was about to confront the victim, the
latter who was armed with a bladed weapon chased him, which prompted him to
strike the victim with a piece of wood several times. According to Ronnie Nicolas,
the piece of wood that he used to strike the victim was the temporary block of the
door of their residence.29
cräläwvirtualibräry

Glenda Sancha, daughter of the victim, testified on the funeral, burial and other
expenses incurred in connection with the death of the victim in the total sum
of P18,918.00, which were supported by receipts.30 cräläwvirtualibräry

The Defenses Evidence

Appellant Ronnie Nicolas ("Ronnie" for brevity), 23 years old, single, a farmer,

testified that at around 6:30 o clock in the evening of October 5, 1997, he was
inside their house located in Siba-o, Calabanga, Camarines Sur. Rommel Cabiles,
Dennis Florendo and he were watching the group of Victorino Bernal, Allan Cabiles,
Generoso San Jose and Edgar Florendo play tong-its (a game of cards). Dante
Nicolas, Junior Nicolas, Bobby Quiñones and Ponciano Alcantara were also playing

Page 148 of 349

tong-its inside their house. Bonifacio Aliben, Diosdado Nicolas and Junior Godoy
were watching this other group play.31 cräläwvirtualibräry

While Ronnie was watching the game, somebody threw small stones with soil at the
place where the Bernal group was playing, and Victorio Bernal was hit on the
forehead. Then another stone was thrown which landed on top of the table used by
said group. They then all went out.32 cräläwvirtualibräry

Ronnie looked for the person who threw the stones in their backyard and found
Juanito Bongon, Sr. hiding behind a coconut tree. Bongon, Sr. stabbed Ronnie three
(3) times with a balisong, but he was not hit. Ronnie moved backward, then
Bongon, Sr. pursued him. Ronnie was able to get hold of a piece of wood and hit
Bongon, Sr., who was facing him, on the left temple causing Bongon, Sr. to fall
down. Ronnie lost control of himself and did not know if he continued hitting
Bongon, Sr. When Bongon, Sr. was silent, Ronnie left him. 33 cräläwvirtualibräry

Ronnie proceeded to the house of William Sanchez, barangay captain of Siba-o, to

surrender himself. He was accompanied by Bonifacio Aliben and Dante Nicolas. He
narrated the incident to Barangay Captain Sanchez who is his relative by affinity.
He also surrendered to Sanchez the piece of wood he used in hitting Bongon, Sr.
Sanchez then went to the Calabanga Police Station, after which Sanchez with Police
Officer Ramon Tarala and Diosdado Nicolas went to fetch Ronnie from the latters
house in Siba-o. They brought him to the Municipal Hall of Calabanga where he was
investigated and then imprisoned.34 cräläwvirtualibräry

Ronnie denied that Diosdado Nicolas and Bonifacio Aliben helped him in striking
Bongon, Sr., and stated that he was the only one involved in the incident. Diosdado
Nicolas is his brother, while Bonifacio Aliben is his friend.35 cräläwvirtualibräry

Appellant Diosdado Nicolas ("Diosdado" for brevity), 29 years old, married, a

laborer, denied that he participated in the killing of Juanito Bongon, Sr. He testified
that at around 6:30 o clock in the evening of October 5, 1997, he was in the store
of his mother. Bonifacio Aliben, Solomon Godoy, Jr. and he were watching Ponciano
Alcantara, Dante Nicolas, Fabi Quiñones and Pedro Nicolas, Jr. play tong-its.
Another group of players, including Victorio Bernal, was also playing tong-its, while
Ramil Cabiles, Dennis Florendo and Ronnie Nicolas were only watching them play.
While Diosdado was watching the game, someone threw soil with little sand, hitting
Victorio Bernal on the left side of his forehead and on his left shoulder. Then a
stone was thrown that landed on top of the table where the game was being
played. They all stood up and went out of the house. Victorio Bernal told Diosado to
inform his mother about the incident. Diosdado ran to their house in Iraya, Siba-o,
Calabanga, Camarines Sur and informed his mother about the stoning incident,
then returned to his own house. After twenty minutes, Diosdado returned to his
mothers house and asked his mother if Ronnie, who lived there, already went
home. His mother responded in the negative. Diosdado went back to their store,
but Ronnie was not there. He went to the house of the barangay captain and found

Page 149 of 349

Ronnie there. He asked Ronnie why he had not gone home, but Ronnie did not
answer. The barangay captain asked Diosdado to accompany him to the police
station to report the incident. From the police station, they were accompanied by
Police Officer Ramon Tarala to fetch Ronnie from his mothers house in Iraya. They
brought Ronnie to the police station where he was investigated and then placed in a
room. Diosado slept on a bench and went home the following morning with the
barangay captain.36 cräläwvirtualibräry

Appellant Bonifacio Aliben, 41, married, a farmer, testified that at around 6:30 o

clock in the evening of October 5, 1997, he was in the store of Ester Nicolas.
Diosdado Nicolas, Junior Godoy and he were watching Dante Nicolas, Ponciano
Alcantara and Bobby Quiñones play tong-its. Another group of persons, including
Victorio Bernal, was also playing tong-its, while Dennis Florendo, Rommel Cabiles
and Ronnie Nicolas were only watching the game. Suddenly, someone threw soil
which hit Victorio Bernal on the forehead. Then a stone was thrown which landed on
the table where the game was being played. All of them went out. Aliben went in
front of the store and no longer knew where his companions went. He, together
with Dante Nicolas, stayed in front of the store for about twenty (20) minutes doing
nothing. Then Ronnie passed by and asked to be accompanied to the barangay
captain. Ronnie did not tell them why they were going to the barangay captain.
They only learned that Ronnie hit Juanito Bongon, Sr. with a piece of wood when
Ronnie narrated the incident to the barangay captain. After the barangay captain
investigated Ronnie about the incident, Aliben went home, while Ronnie was left
behind.37chanroblesvirtuallawlibrary

Bonifacio Aliben denied that he participated in the killing of Juanito Bongon, Sr. and
claimed that it was only Ronnie who killed him. He also denied the allegations of the
prosecution witnesses that he was seen walking briskly towards his home carrying a
bloodstained bolo at around 6:30 o clock in the evening of October 5, 1995, stating
that it was Ronnie whom they saw.38 cräläwvirtualibräry

Victorio Bernal corroborated the testimonies of appellants. He testified that at

around 6:30 o clock in the evening of October 5, 1997, while he was playing tong-
its in the store of Ester Nicolas, somebody threw a small stone with soil which hit
him on the head. Then a bigger stone was thrown which fell on top of their table.
Everyone in the store went out. When Bernal reached the door, he heard a voice
say, "The person is here." He looked at the direction where the voice came from
and saw Juanito Bongon, Sr. standing at the back of the house and holding a
bladed weapon or "lanceta." Bernal got scared and immediately fled. The following
morning, he heard that Juanito Bongon, Sr. was already dead. 39 cräläwvirtualibräry

Solomon Godoy, Jr. also corroborated appellants testimonies. He testified that at

around 6:30 o clock in the evening of October 5, 1997, he was in the house of Ester
Nicolas. Bonifacio Aliben, Diosdado Nicolas and he were watching the group of
Dante Nicolas play tong-its. While he was watching the game, somebody threw
small stones with soil which hit Victorio Bernal, a member of the other group of

Page 150 of 349

players, on the forehead. Then another stone was thrown at the other group, so
they all went out. While Godoy, Jr. was standing on the side of the road for a few
minutes, he heard the name of Juanito Bongon, Sr. He also heard a commotion but
he did not bother to investigate it because he got scared and went directly
home.40 cräläwvirtualibräry

William Sanchez, barangay captain of Siba-o, Calabanga, Camarines Sur, testified

that at about 6:30 o clock in the evening of October 5, 1997, while he was in his
house watching television, Ronnie Nicolas, Bonifacio Aliben and Dante Nicolas
entered his house. Ronnie reported to him that Juanito Bongon, Sr. was already
dead and admitted that he killed him. After asking Ronnie questions, Sanchez went
out of the house to look for a tanod because he intended to go to the place of the
incident. Unable to find a tanod, he returned to his house with the intention of
surrendering Ronnie. Sanchez and Diosdado Nicolas went to the Calabanga Police
Station and reported the incident to Police Officer Ramon Tarala. Police Officer
Tarala went with them to Siba-o to fetch Ronnie from the latters house. Thereafter,
they brought Ronnie to the police station where he was investigated and then
imprisoned.41 cräläwvirtualibräry

Sanchez further testified that on the next day, October 6, 1997, Ester Nicolas, the
mother of Ronnie, surrendered to him the balisong (a bladed weapon) which they
allegedly found at the place of the incident. On the same day, he immediately
turned over to the Calabanga Police Station the said balisong, together with the 2x2
piece of wood that Ronnie surrendered to him in the evening of October 5, 1997.
Sanchez told the desk officer that the piece of wood was used by Ronnie in hitting
the Bongon, Sr. and that the knife was allegedly used by Bongon, Sr. in attempting
to stab Ronnie.42 cräläwvirtualibräry

On cross-examination, Sanchez admitted that he is a relative by affinity of

appellants Diosdado Nicolas and Ronnie because their mother is the sister of his
wife.43
cräläwvirtualibräry

SPO1 Dante Sta. Rosa, a member of the Philippine National Police ("PNP" for
brevity), Calabanga, Camarines Sur, produced in court the balisong44 and the piece
of wood45 which were allegedly turned over to the PNP, Calabanga on October 6,
1997 by Sanchez through SPO1 Leopoldo Talle. He testified that the investigator on
duty turned over to him said pieces of evidence when they were surrendered. 46 cräläwvirtualibräry

On cross-examination, SPO1 Sta. Rosa admitted that SPO1 Leopoldo Talle delivered
to him the piece of wood and the balisong on October 8, 1997 after the turnover of
said evidence was entered in the police blotter as Entry No. 1020 dated October 8,
1997 by SPO1 Talle. It was the custom in their office, he said, that whenever
evidence was received in a particular case, it was recorded on the date it was
received.47

Rebuttal Evidence

Page 151 of 349

The prosecution presented as rebuttal witness SPO1 Leopoldo Talle who testified
that on October 8, 1997, he was the acting desk officer of the Calabanga Police
Station. On said date, he received a piece of wood 48 measuring about 1 x 2 x 5
inches and one balisong knife49 measuring about eight and three-fourths (8 ) inches
long. He recorded his receipt of said evidence in the Police Blotter as Entry No.
1020 dated October 8, 1997 at 10:30 a.m. 50 cräläwvirtualibräry

The Trial Courts Ruling

The trial court gave credence to the testimonies of prosecution eyewitnesses Ramon
Barsaga and Floserfida Fabricante who positively identified appellants Ronnie
Nicolas, Diosdado "Dado" Nicolas and Bonifacio Aliben as the assailants responsible
for the victims death. Said court stated that their testimonies were corroborated by
Dalia Requinta and Pepito Seguenza who saw Aliben walking with a bloodstained
bolo in his hand on the date and at the time of the incident. The court also admitted
in evidence the dying declaration of the victim Juanito Bongon, Sr. naming Dado
and Ronnie as his assailants. It found no ulterior motive on the part of Juanito
Bongon, Jr. and Josefa Bongon to fabricate the declaration of the victim. The court
ruled that the positive testimonies of the prosecution witnesses prevailed over the
denial and alibi of appellants Diosdado Nicolas and Bonifacio Aliben.

The trial court rejected the theory of self-defense of appellant Ronnie Nicolas
because the latter continued hitting the victim after he had immobilized him by
hitting him on the head. Moreover, Dr. Rey Millena found that there was more than
one instrument used against the victim and the numerous injuries sustained by the
victim were fatal injuries that negated self-defense.

Further, the trial court ruled that conspiracy and abuse of superior strength were
present in the commission of the crime. It considered voluntary surrender in favor
of appellant Ronnie Nicolas.

The trial court pronounced judgment, thus:

WHEREFORE, in view of the foregoing, the prosecution having proved the guilt of
the accused beyond reasonable doubt and having prove[d] conspiracy, accused are
hereby found guilty of murder. There being no aggravating nor mitigating
circumstances, accused Diosdado Nicolas and Bonifacio Aliben are hereby sentenced
to suffer the penalty of RECLUSION PERPETUA. Accused Ronnie Nicolas, after taking
into consideration the mitigating circumstance of voluntary surrender, is hereby
sentenced to suffer the penalty of RECLUSION PERPETUA. Likewise, they are
ordered to jointly and severally indemnify the heirs of victim Juanito Bongon, Sr.
the amount of P50,000.00 for his death; moral damages in the amount
of P30,000.00; P18, 918.05 as actual damages; and to pay the costs.

SO ORDERED.51 cräläwvirtualibräry

Page 152 of 349

Appellants thereafter moved for a new trial on the ground of newly discovered
evidence. They prayed that the supposed witness of the prosecution, Rommel
Cabiles, be allowed to testify for the defense since he was recanting his sworn
statement which was used as a supporting affidavit of the criminal complaint. The
trial court denied said motion on the ground that the sworn statement attached to
the motion did not constitute new evidence and merely corroborated the testimony
of appellant Ronnie Nicolas. Appellants motion for reconsideration was likewise
denied.

Hence, this appeal.

Appellants ascribe to the trial court the following errors:

1. THE LOWER COURT ERRED IN RULING THAT THE ACCUSED WERE POSITIVELY
IDENTIFIED ON THE BASES OF THE BIASED AND INCREDIBLE TESTIMONIES OF
THE ALLEGED EYEWITNESSES, NAMELY ROMEO BARSAGA AND FLOSERFIDA
FABRICANTE, THE FRIEND AND THE SISTER OF THE VICTIM, RESPECTIVELY.

2. THE LOWER COURT ERRED IN CONSIDERING THE DYING DECLARATION OF THE

VICTIM JUANITO BONGON, SR. ON THE BASIS OF THE FABRICATED AND
INCONSISTENT TESTIMONIES OF JUANITO BONGON, JR., AND JOSEFA BONGON,
THE SON AND WIFE OF THE VICTIM, RESPECTIVELY, DESPITE THE TESTIMONY OF
DR. REY MILLENA THAT THE VICTIM COULD HAVE IMMEDIATELY DIED AND THAT
THERE WAS NO POSSIBILITY FOR THE VICTIM TO TALK AFTER HE SUSTAINED THE
FATAL INJURIES.

3. THE LOWER COURT ERRED IN RULING THAT THERE WAS MORE THAN ONE
INSTRUMENT USED IN ATTACKING THE VICTIM BECAUSE OF THE SINGLE INCISED
WOUND FOUND ON THE HEAD OF THE VICTIM.

4. THE LOWER COURT ERRED IN RULING THAT THERE WAS CONSPIRACY AMONG
THE ACCUSED IN ATTACKING THE VICTIM, INSPITE OF THE DECLARATION OF
ACCUSED NICOLAS THAT IT WAS ONLY [HE] WHO KILLED THE VICTIM IN SELF-
DEFENSE.

5. THE LOWER COURT ERRED IN DISREGARDING THE THEORY OF SELF-DEFENSE

PUT UP BY ACCUSED RONNIE NICOLAS.

6. THE LOWER COURT ERRED WHEN IT CONVICTED ALL THE ACCUSED BASED ON
THE ALLEGED CORROBORATIVE TESTIMONIES OF THE PROSECUTIONS
WITNESSES AND TOTALLY DISREGARDING THE [ACCUSEDS] TESTIMONIES AND
[THOSE] OF THEIR WITNESSES.52

The Courts Ruling

First Issue: Credibility of the Prosecution Witnesses

Page 153 of 349

Appellants contend that the trial court erred in ruling that they were positively
identified based on the testimonies of prosecution eyewitnesses Romeo Barsaga
and Floserfida Fabricante who were not credible witnesses.

Appellants assert that the testimony of Romeo Barsaga, a friend of the victim, was
not credible. First, Barsaga was just seven (7) meters away from the place of the
incident, but he did nothing except watch his friend being beaten up. Second,
Barsaga neither shouted nor sought assistance. Third, he did not report the incident
to any member of the family except to the victims mother and a Grade One boy
who were not capable of responding to the incident. Barsaga could not even name
the victims mother and the boy although he had stayed in the victims house on
several occasions. Fourth, Barsaga went home to Bacacay, Albay after the incident
instead of rendering assistance to the victims family or inquiring about the condition
of his friend.

Appellants contention is not tenable.

Different people react differently to an unusual event, and there is no standard

form of behavior when an individual witnesses something so shocking or gruesome
as murder especially if the assailant is near. 53 Reluctance to get involved in the
criminal incident is not an unnatural reaction of some individuals. 54
cräläwvirtualibräry

Barsaga testified that he got scared after witnessing appellants attack the victim,
Juanito Bongon, Sr.55 Thus, he returned to the victims house where he was then
staying and immediately informed the victims mother and a certain boy about what
he had witnessed.56 The wife and children of the victim were not around then and
he later learned that they brought the victim to the hospital. 57 The reaction of
Barsaga upon witnessing the incident and Barsagas failure to state the names of
the victims mother and the boy to whom he narrated the incident pertain to
collateral matters, which do not touch upon the commission of the crime itself and
do not detract from the positive identification of appellants as the assailants, and
therefore do not affect the substance, veracity or weight of his testimony. 58 The fact
that Barsaga went home the day after the incident, knowing that the victim was
already in the hospital, in no way impairs his credibility.

Appellants further question the credibility of Barsaga because he testified that the
victim was repeatedly hacked by appellant Bonifacio Aliben with a bolo, but could
not tell how many times the victim was hacked and which part his body was hit.
Also noteworthy, they claim, is the fact that there was also only one (1) incised
wound found on the victims head, despite Barsagas testimony that the victim was
hacked repeatedly.

As the Solicitor General stated, it has been held that eyewitnesses to a horrifying
event cannot be expected to be completely accurate in picturing to the court all that
had transpired and every detail of what they had seen or heard. 59Although Barsaga
testified that he could not give an estimate of the number of times Aliben hacked

Page 154 of 349

the victim, this is not sufficient to cast doubt on the testimony of Barsaga that he
saw the appellants hit the victim on the head with pieces of wood and a bolo. From
a distance of seven (7) meters, Barsaga recognized the faces of appellants as he
often saw them at the store whenever he was in Siba-o. 60 Although there was only
one incised wound found on the victims head, this is not inconsistent with several
blows having been made with said bolo, since a bolo has dull sides and not all blows
find their target.

Appellants argued that it was quite impossible that Floserfida Fabricante, the
victims sister, who witnessed the incident from a distance of only ten (10) meters,
failed to recognize that the victim was her brother.

Appellants may have been unaware or unmindful of Fabricantes explanation that

she did not recognize that the victim was her brother because when she saw him
being mauled, he was already lying down on the ground, 61 which we find to be
satisfactory.

Appellants also contend that the testimony of Fabricante that they allegedly
concentrated their attack on the head of the victim was incredible. They insist that
the normal tendency of attackers is to hit the victim in whatever part of the body is
exposed to them. Hence, it was unthinkable that Ronnie Nicolas and Diosdado
Nicolas would be hitting the head of the victim with a piece of wood simultaneously,
while Aliben was likewise hacking the head of the victim.

The Solicitor General correctly countered that there is no such "normal tendency" in
attacking a victim, as a malefactor could attack his victim in any part of the body
he chooses and in any manner he pleases. There is no standard manner or form of
executing a criminal design. Significantly, Dr. Rey Millena, who autopsied the body
of the victim, testified that he found no sign of physical injuries at the upper and
lower extremities of the victims body.62 He found that the injuries were more or less
concentrated on the head and face.63 Dr. Millenas findings, therefore, supported the
testimony of Fabricante that the appellants concentrated their attack on the victims
head.

Appellants also point out the alleged inconsistent testimonies of Barsaga and
Fabricante. Barsaga allegedly testified that he was going to the store of Puring to
buy cigarettes when he saw the incident, while Fabricante, whose nickname was
Puring, testified that she was not operating a store.

We found no inconsistency in their statements. The transcript of stenographic notes

shows that Barsaga testified that he was going to the store near the house of
Floserfida "Puring" Fabricante to buy cigarettes when he witnessed the
incident.64 Hence, Fabricante consistently testified that she was not operating a
store.

Page 155 of 349

Appellants also contend that Barsaga testified that he saw Aliben hack the victim
several times, but Fabricante testified that she saw Aliben hack the victim only
once.

It has been held that a witness testifying about the same nerve-wracking event can
hardly be expected to be correct in every detail and consistent with other witnesses
in every respect, considering the inevitability of differences in perception,
recollection, viewpoint or impressions, as well as in their physical, mental,
emotional and psychological states at the time of the reception and recall of such
impressions.65 After all, no two persons are alike in powers of observation and
recall.66 Total recall or perfect symmetry is not required as long as witnesses concur
on material points.67 Notably, both Barsaga and Fabricante positively identified
appellants as the assailants of the victim and they testified in a straightforward
manner. Since there is no evidence that these principal witnesses for the
prosecution were actuated by improper motive, their testimonies are entitled to full
faith and credit.68
cräläwvirtualibräry

Further, it is a well-settled doctrine that findings of trial courts on the credibility of

witnesses deserve a high degree of respect. Having observed the deportment of
witnesses during the trial, the trial judge is in a better position to determine the
issue of credibility; thus, his findings will not be disturbed on appeal in the absence
of any clear showing that he overlooked, misunderstood or misapplied some facts
or circumstances of weight and substance that could have altered the conviction of
appellants.69 We have carefully reviewed the records of this case and found no
reason to disturb the findings of the trial court.

Second Issue: Dying Declaration

Appellants would fault the trial court for considering the dying declaration of the
victim which they alleged was based on the fabricated and the inconsistent
testimonies of Juanito Bongon, Jr. and Josefa Bongon. They point to the
contradictory testimonies of Juanito Bongon, Jr. and Josefa Bongon as to the exact
instance when the victim gave his dying declaration and on the manner the victim
was retrieved from the place of the incident.

Appellants contend that Juanito Bongon, Jr. testified that it was only after he
started the engine of the motorized padyak which turned on its lights that he was
able to recognize that the victim he placed on his padyak was his father. It was at
this juncture when he asked his father who his assailants were and that his father
answered Dado and Ronnie. Appellants argue that Juanito Bongon, Jr. never
testified that the dying declaration of his father was made in the presence of his
mother Josefa Bongon. However, Josefa Bongon testified that she was present and
heard the dying declaration of her husband. Josefa Bongon also declared that her
husband gave his dying declaration to her son before the motorized padyak was
started, which is inconsistent with the testimony of Juanito Bongon, Jr.

Page 156 of 349

The transcript of stenographic notes shows otherwise. Juanito Bongon, Jr. testified
on cross-examination that his mother Josefa Bongon and his brother arrived when
he placed the body of his father inside his padyak. 70 This was before he turned on
the motor and the lights of his padyak, which enabled him to recognize the victim
to be his father. It was only when Bongon, Jr. recognized that the victim was his
father that he elicited his fathers dying declaration. Hence, the testimonies of
Juanito Bongon, Jr. and Josefa Bongon were consistent on her presence when the
victim gave his dying declaration.

Although Josefa Bongon testified that her son Juanito Bongon, Jr. asked his father
who mauled him before he started his padyak, which differs from her sons
testimony, said inconsistency refers to a minor detail which does not impair the
essential integrity of the prosecutions evidence as a whole or detract from the
witnesses testimonies that the victim gave a dying declaration naming Dado and
Ronnie as his assailants.71 On the contrary, said inconsistency tends to strengthen
the credibility of the prosecution witnesses because it erases the suspicion of a
rehearsed testimony.72 cräläwvirtualibräry

The allegations of appellants that there were inconsistencies in the testimonies of

Fabricante and Josefa Bongon regarding the manner the victim was retrieved from
the place of the incident likewise refer to minor details and collateral matters, which
do not touch upon the commission of the crime itself or detract from the positive
identification of the appellants as the assailants. 73 Therefore, the alleged
inconsistencies do not affect the substance of the prosecution witnesses
declarations, their veracity, or the weight of their testimonies. 74
cräläwvirtualibräry

Appellants also contend that based on the testimonies of the prosecution witnesses,
the victim was already dead when he was found, so he could not have uttered his
dying declaration. This conclusion was allegedly supported by Dr. Rey Millena who
testified that based on the fatal injuries sustained by the victim, there was no
possibility for the victim to talk because his injuries would cause his immediate
death. Hence, appellants insist that it was error for the trial court to consider the
alleged dying declaration of the victim.

We are not persuaded.

According to the trial court, although the doctor testified that based on his post-
mortem examination, the victim could have died immediately after sustaining the
injuries on the right side of his head, Josefa Bongon and Juanito Bongon, Jr.
however testified that the victim remained alive for a few seconds. 75 Bongon, Jr.
testified that when he saw the victim, he was still alive, moaning. 76 After he carried
the victim to his padyak, the victim was able to reply to his question as to the
identity of his assailants by uttering the names Dado and Ronnie. 77 The victim was
about to say more but his serious physical condition prevented him from doing
so.78
cräläwvirtualibräry

Page 157 of 349

We agree with the Solicitor General that there is no evidence or any indication
showing that a dubious reason or improper motive impelled Juanito Bongon, Jr. to
make a false testimony; thus, his testimony deserves full faith and credence. It
would be unnatural for the victims relatives to commit an injustice by taking the
witness stand and imputing the crime to innocent persons and not to those who
were actually responsible therefor.79 Hence, the trial court did not err when it
believed the testimonies of Josefa Bongon and Juanito Bongon, Jr. that Juanito
Bongon, Sr. was able to name his assailants before he died.

For a dying declaration to be admissible in evidence, the following requisites must

concur: (1) the dying declaration must concern the cause and surrounding
circumstances of the declarants death; (2) at the time of making his declaration,
the declarant was under a consciousness of impending death; (3) the declarant
must have been competent to testify as a witness; and (4) the declaration was
offered in a criminal case for homicide, murder or parricide in which the declarant
was the victim.80 cräläwvirtualibräry

These requisites are present in the case at bar. The injuries sustained by the victim
were serious enough to make the declarant conscious of impending death, which in
fact occurred even before he reached the hospital. His declaration, which identified
his assailants, referred to the cause of his death. The declarant was competent to
testify as a witness if he had been called upon to give testimony in court. The
declarants dying declaration was offered in this case wherein he is the victim.
Having satisfied all the aforementioned requisites, the trial court did not err in
admitting in evidence the victims dying declaration. A dying declaration is an
exception to the hearsay rule, because of its necessity and
trustworthiness:81 Necessity, because the declarants death makes it impossible for
him to take the witness stand; and trustworthiness, because when a person is at
the point of death, every motive for falsehood is silenced and the mind is induced
by the most powerful consideration to speak the truth.82cräläwvirtualibräry

Third Issue: The number of weapons used to commit the crime

Appellants next contend that the trial court erred in ruling that more than one
instrument was used in attacking the victim.

We disagree.

Dr. Millena, who conducted the autopsy of the body of the victim, testified that the
victims internal injuries, consisting of fractures on the head and the face, were
caused by a blunt instrument, while the incised wound on the right side of the
victims head may have been caused by a sharp-edged instrument. 83 Hence, the trial
court correctly ruled that more than one instrument was used in inflicting the
injuries sustained by the victim, which was supported by the findings of Dr.
Millena.84
cräläwvirtualibräry

Page 158 of 349

Fourth Issue: Presence of Conspiracy

Appellants also contend that the trial court erred in ruling that there was conspiracy
among them in the commission of the crime.

The contention is without merit.

Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. 85 In the absence of direct proof of
conspiracy, it may be deduced from the mode, method and manner by which the
offense was perpetrated, or inferred from the acts of the accused themselves when
such acts point to a joint purpose and design, concerted action and community of
interest.86 cräläwvirtualibräry

In the case at bar, prosecution eyewitnesses Barsaga and Fabricante testified that
they saw appellants help each other in attacking the victim. Appellant Bonifacio
Aliben was striking the victim with a bolo, while appellants Ronnie Nicolas and
Diosdado Nicolas were hitting him with a piece of wood. 87 Their concerted action
showed unity of purpose to harm the victim. As noted by the Solicitor General, not
one of the three appellants prevented the attack on the victim nor did any of them
do anything to discontinue the commission of the crime. The trial court also noted
that prior to the incident, appellants admitted that they were together inside the
store of Ester Nicolas. Considering these circumstances, the trial court correctly
ruled that there was conspiracy among the appellants. Where conspiracy is
established, the act of one is the act of all. 88 All the conspirators are liable as co-
principals.89 cräläwvirtualibräry

Appellants further contend that the testimonies of Requinta and Seguenza that they
saw Aliben carrying a bloodstained bolo was contrary to human experience. The
normal actuation of an assailant, they argue, is to hide his weapon and not
brandish the same before the public. We agree with the Solicitor General that the
alleged actuation of Aliben is not contrary to human experience, considering the
number of incidents where criminals, particularly of late, boldly execute their evil
design and walk away in public.

Fifth Issue: Self-defense

Appellants fault the trial court for discrediting the claim of Ronnie Nicolas that he
killed the victim in self-defense.

When the accused invokes self-defense, it becomes incumbent upon him to prove
by clear and convincing evidence that he indeed acted in defense of himself. 90 Self-
defense as a justifying circumstance is present when the following concur: (1)
unlawful aggression; (2) reasonable necessity of the means employed to repel or
prevent it; and (3) lack of sufficient provocation on the part of the person defending
himself.91
cräläwvirtualibräry

Page 159 of 349

Appellant Ronnie Nicolas contends that unlawful aggression came from the victim
with no provocation on his part. He testified that while he was looking in their
backyard for the person who threw the stones into their store, he found the victim
Juanito Bongon, Sr. hiding behind a coconut tree. 92 It was Bongon, Sr. who
attacked him first by stabbing him three (3) times with a balisong, but he was not
hit.93 He moved backward, then Bongon, Sr. pursued him. 94 He was able to get hold
of a piece of wood and hit Bongon, Sr. on his left temple causing Bongon, Sr. to fall
down.95 He lost control of himself and he did not know if he continued hitting the
victim.96 When the victim was silent, he left him.97 cräläwvirtualibräry

The testimony of Ronnie Nicolas shows that the victim, who allegedly attacked him
first, was immobilized when he hit the victim with a piece of wood on the temple
causing the victim to fall down. At that point, the alleged unlawful aggression of the
victim ceased. Yet, Ronnie continued hitting the victim until the latter was "silent,"
which already manifested intent to kill. The Necropsy Report 98 showed that the
victim sustained an incised wound on the right side of the victims head 99and several
fractures, as well as, three (3) contusions with lacerations and abrasions on the
head and face.

Dr. Millena testified that the injuries sustained by the victim on the head were
fatal.100 The nature, number and location of the wounds sustained by the victim
belie the assertion of self-defense since the gravity of said wounds is indicative of a
determined effort to kill and not just to defend.101 cräläwvirtualibräry

Moreover, as earlier mentioned, Dr. Millena testified that more than one instrument
was used in inflicting the injuries sustained by the victim. 102 The fractures on the
head were caused by a blunt instrument, 103 while the incised wound may have been
caused by a sharp-edged instrument.104 This led the trial court to conclude that the
injuries inflicted were caused by more than one person and with two kinds of
weapons.105 cräläwvirtualibräry

Considering the foregoing and the positive testimonies of Barsaga and Fabricante
identifying the three appellants as the assailants of the victim, we agree with the
trial court that Ronnie Nicolas declaration that he killed the victim in self-defense
cannot be given credence.

Sixth Issue: Defense of Denial and Alibi

Appellants assert that the trial court erred in convicting Diosdado Nicolas and
Bonifacio Aliben because they have clearly established that they did not participate
in killing the victim.

Diosdado Nicolas and Bonifacio Aliben put up the defense of denial and alibi. The
defense of denial, like alibi, is considered with suspicion and is always received with
caution, not only because it is inherently weak and unreliable, but also because it
can be fabricated easily.106 cräläwvirtualibräry

Page 160 of 349

For alibi to be given weight, the accused must prove not only that he was
somewhere else when the crime was committed, but also that he was so far away
that it was physically impossible for him to be present at the scene of the crime or
its immediate vicinity at the time of its commission.107 cräläwvirtualibräry

Alibens alibi was that after someone threw a stone into the store of Ester Nicolas,
he went out of the store. 108 Then he merely stood in front of the store for twenty
(20) minutes doing nothing.109 He even testified on cross-examination that he was
then with Dante Nicolas before Ronnie Nicolas passed by and asked them to
accompany him to the house of the barangay captain, which was inconsistent with
the testimony of Diosdado Nicolas.110 cräläwvirtualibräry

Diosdado Nicolas testified that after someone threw a stone into the store of his
mother, he immediately went to his mothers residence in Iraya to inform his
mother about what happened, and then returned to his own house. 111 After twenty
minutes, he went back to his mothers house where Ronnie lived and asked his
mother if Ronnie was already home.112 When his mother responded in the negative,
he returned to their store, but Ronnie was not there. 113 He then went to the house
of the barangay captain where he found Ronnie.114 cräläwvirtualibräry

Despite the different versions of their testimonies, it is evident that appellants

Bonifacio Aliben and Diosdado Nicolas were very near the place of the incident at
the time the victim was killed. The victim was killed only about five (5) meters
away from the store of Ester Nicolas. 115 At that time, Aliben was in front of the said
store, while Diosado Nicolas was within Barangay Siba-o, if not in the vicinity of his
mothers store. Ronnie Nicolas admitted killing the victim, but Diosdado Nicolas and
Bonifacio Aliben denied participation. The trial court held that it was impossible to
believe that while they were at the store, they had no knowledge of what was going
on.116 Appellants Diosdado Nicolas and Bonifacio Aliben failed to satisfy the
requirement of alibi that it was physically impossible for them to be present at the
scene of the crime or its immediate vicinity at the time of its commission.

Furthermore, it is well settled that positive identification, where categorical and

consistent and not attended by any showing of ill motive on the part of the
eyewitnesses testifying on the matter, prevails over alibi and denial which, if not
substantiated by clear and convincing evidence, are negative and self-serving
evidence undeserving weight in law.117Hence, the defense of denial and alibi cannot
prosper in the light of the positive identification by eyewitnesses Ramon Barsaga
and Floserfida Fabricante that appellants were the perpetrators of the crime. 118 cräläwvirtualibräry

Taking advantage of superior strength

We agree with the trial court that the killing was attended by the aggravating
circumstance of taking advantage of superior strength which was alleged in the
Information. Superiority in number does not necessarily amount to the aggravating
circumstance of taking advantage of superior strength. 119 It is necessary to show

Page 161 of 349

that the aggressors cooperated in such a way as to secure advantage from their
superiority in strength.120 There must be proof of the relative physical strength of
the aggressors and the assaulted party or proof that the accused simultaneously
assaulted the deceased.121 The circumstance of taking advantage of superior
strength depends on the age, size and strength of the parties. 122 It is considered
whenever there is a notorious inequality of forces between the victim and the
aggressor, assessing a superiority of strength notoriously advantageous for the
aggressor which is selected or taken advantage of by him in the commission of the
offense.123
cräläwvirtualibräry

The trial court correctly ruled that taking advantage of superior strength was
present, thus:

In the instant case, the 3 accused were all armed. Ronnie Nicolas and Diodado
Nicolas were armed with a piece of wood while Bonifacio Aliben was armed with a
bolo and they helped one another in assaulting the victim who was alone.
Furthermore, the victim at the time of his death was 52 years old while appellant
Ronnie Nicolas at the time of the incident was 23 years old; Diosdado Nicolas was
29 years old and Bonifacio Aliben was 41 years old. There is a wide gap of the age
between the victim and the accused, showing that the victim was much older than
the three (3) accused who are younger and physically stronger. 124
cräläwvirtualibräry

The attendant circumstance of taking advantage of superior strength qualifies the

killing to murder under Article 248 of the Revised Penal Code:

ART. 248. Murder.-- Any person who, not falling within the provisions of Article 246
shall kill another, shall be guilty of murder and shall be punished by reclusion
perpetua to death, if committed with any of the following circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed
men, or employing means to weaken the defense or of means or persons to insure
or afford impunity. x x x

The Penalty

Murder is punishable by reclusion perpetua to death. The voluntary surrender of

Ronnie Nicolas to the barangay captain immediately after the incident is a
mitigating circumstance. Under Article 63 (3) of the Revised Penal Code, when the
commission of the act is attended by some mitigating circumstances and there is no
aggravating circumstance, the lesser penalty shall be applied. On the other hand,
no mitigating or aggravating circumstance may be considered against appellants
Bonifacio Aliben and Diosdado Nicolas. Under Article 63 (2) of the Revised Penal
Code, when there are neither mitigating nor aggravating circumstances in the
commission of the deed, the lesser penalty shall be applied.

Page 162 of 349

Hence, the trial court correctly imposed upon the appellants the lesser penalty for
the offense, which is reclusion perpetua.

Damages

The trial court correctly awarded to the heirs of the victim actual damages in the
amount of Eighteen Thousand Nine Hundred Eighteen Pesos and Five Centavos
(P18,918.05), which was supported by receipts. 125 cräläwvirtualibräry

The trial court also correctly awarded to the heirs of the victim civil indemnity in the
amount of P50,000.00, which needs no proof other than that of the death of the
victim.126
cräläwvirtualibräry

Finally, the trial court correctly awarded moral damages to the heirs of the victim as
the victims wife testified that she suffered mental anguish as a result of her
husbands death. However, the amount of P30,000.00 it awarded should be
increased to P50,000.00, in accordance with prevailing jurisprudence. 127 An award
of P25,000.00 for exemplary damages should also be added.

WHEREFORE, the assailed Decision of the Regional Trial Court, Fifth Judicial
Region, Branch 63, Calabanga, Camarines Sur, in Criminal Case No. RTC 98-236
(Cal), finding appellants Ronnie Nicolas, Diosdado Nicolas and Bonifacio Aliben
GUILTY beyond reasonable doubt of the crime of murder and sentencing them to
suffer the penalty of reclusion perpetua is hereby AFFIRMED. Appellants are
ordered jointly and severally to pay the heirs of the victim, Juanito P. Bongon, Sr.,
civil indemnity in the amount of Fifty Thousand Pesos (P50,000.00); actual
damages in the amount of Eighteen Thousand Nine Hundred Eighteen Pesos and
Five Centavos (P18,918.05); moral damages in the amount of Fifty Thousand Pesos
(P50,000.00), and exemplary damages in the amount of Twenty Five Thousand
Pesos (P25,000.00). Costs de oficio.

Page 163 of 349

G.R. No. 123924               December 11, 2003
HEIRS OF MIGUEL FRANCO, namely: MODESTA, LEONIDES ROMULA,
EMMA, JOHNNY, RAMON, BERNARDO, PACITA, all surnamed
FRANCO, petitioners, 
vs.
COURT OF APPEALS and HEIRS OF FAUSTINA CABADING, represented
by VICTORIA CABADING,respondents.
DECISION
Tinga, J.:

Before us is a Petition for Review on Certiorari seeking to overturn

a Decision rendered by the Fourteenth Division of the Court of Appeals on 6 1 

October 1995 in CA G.R. CV No. 37609. The Court of Appeals reversed the
decision of the Regional Trial Court of Dipolog City, Branch 7 ("RTC") and
2 

ordered the cancellation of TCT No. T-20203 issued in the name of Miguel
Franco (whose heirs are the petitioners herein), and the issuance of a new
transfer certificate of title for Lot No. 5172-B, PSD-64806, in favor of the heirs of
Quintin Franco ("Quintin"). Quintin was the patentee of a parcel of public land,
3  4 

surveyed as Lot No. 5172, Cad. 85 Ext. ("subject property"), located at Lianib,
Dipolog, Zamboanga del Norte, and containing an area of 70.6381 hectares.
Being the patentee, Original Certificate of Title No. P-436 covering subject
property was issued in Quintin’s name on 9 July 1954.

Quintin died intestate on 8 December 1967. His brother, Miguel Franco

("Miguel,"), filed a Petition for Issuance of Letters of Administration on 17 October
1968, before the Court of First Instance of Zamboanga del Norte ("intestate
court"), praying that he be appointed as administrator of Quintin’s estate. This
Petition, docketed as Sp. Proc. No. R-531, was opposed by Faustina Franco
Vda. De Cabading ("Faustina"), the sister of the decedent, on the ground that
Miguel was unfit to be the administrator. She prayed for her own appointment as
5 

administratrix instead of Miguel. Upon motion of Miguel, the intestate court

appointed him as special administrator of the estate on 3 December
1969. However, on 23 July 1971, Faustina, then apparently joined by the other
6 

heirs of Quintin except Miguel, moved for the latter’s removal as special
7

administrator.

On 27 August 1973, the intestate court issued an Order declaring inter alia that,
8 

based on the evidence, Quintin was the absolute owner of the subject property.
This finding was subsequently used by the intestate court as one of the grounds
for granting the motion to remove Miguel as special administrator, per the Order
dated 1 September 1973. In the latter Order, the intestate court said that since

Page 164 of 349

Miguel was claiming ownership over half of the subject property, his conflicting
interest rendered him incapable of rendering a true and faithful account of the
estate.9

Miguel filed a Motion for Reconsideration of the 1 September 1973 Order,

10 

wherein he alleged for the first time that one-half of the subject property was
transferred to him by virtue of a document entitled "General Power of
Administration" and executed by Quintin in 1967. It was also discovered that on
the basis of this "General Power of Administration" Miguel had filed a Petition
dated 2 January 1972 before Branch 1 of the Dipolog Court of First Instance,
docketed as Misc. Sp. No. 2993, seeking the cancellation of OCT No. P-436.
11 

This Petition was granted in the Order of 6 January 1973, wherein it was
12 

directed that the new transfer certificates of title be issued, one in the name of
the heirs of Quintin and the other name of Miguel. Thus, Miguel was able to
obtain Transfer Certificate of Title No. (TCT) T-20203, covering half of the subject
property, on 13 February 1973. 13

The other heirs asked the intestate court to cancel TCT No. T-20203 shortly after
learning about it through a Motion for Reconsideration filed in the estate
proceedings. On 4 May 1977, the intestate court issued an order cancelling TCT
14 

No. T-20203 issued in the name of Miguel, on the ground that Miguel’s
acquisition of the title was fraudulent. The Court of Appeals reversed the Order in
its Decision of 29 February 1984. According to the appellate court, the intestate
15 

court had no jurisdiction to settle questions of property ownership. This Court, in

16 

a Resolution dated 1 October 1984, affirmed the ruling of the Court of Appeals.
17 

Consequently, private respondents as plaintiffs, filed before the RTC a complaint,

docketed as Civil Case No. 3847, seeking the cancellation of TCT No. T-20203 in
the name of Miguel, who had died in the meantime. After trial, the RTC rendered
18 

a decision dismissing the complaint. The RTC found that the "General Power of
19 

Administration" evinced an existing trust relation between Quintin and his brother
Miguel, with Quintin as the signatory thereof acknowledging that he was holding
half of the property titled in his name in trust for Miguel. Applying Article 1452 of 20

the Civil Code, the RTC concluded that a trust had been created by force of law
in favor of Miguel to the extent of one-half of the property.

On appeal, the Court of Appeals rendered on 6 October 1995 the challenged

Decision reversing the RTC decision, ordering the cancellation of TCT No. T-
21 

20203 and directing the issuance of a new transfer certificate of title in the name
of the Heirs of Quintin. The appellate court concluded that Miguel had succeeded
in registering the property through fraud, surreptitious conduct, and bad faith. As
basis, it recited the following circumstances:

Page 165 of 349

 1. In his petition for the issuance of letters of administration, Miguel
admitted that the subject property in its entirety belonged to his brother,
Quintin, with his inclusion of the entire property in the list of properties left
behind by Quintin, without asserting ownership over it or any part thereof; 22

2. The intestate court had declared that Quintin was the absolute owner of
the subject property and dismissed, for lack of sufficient evidence, the
claim of Miguel to half of the property;23

3. OCT No. P-436, covering the entire subject property, was registered as
early as 9 July 1954 but it was only on 13 February 1973 that Miguel
Franco obtained the TCT covering half of the property in his name. His
silence for 19 years had militated against his claim of ownership and may
well be indicative of laches on his part;24

4. The subject property was solely declared for taxation purposes in the
name of Quintin; 25

5. The "General Power of Administration," on which Miguel anchored his

claim of ownership, had simply documented a delegated power to
administer property and could not be a source of ownership; 26

6. The Order dated 6 January 1973 of Judge Rafael Mendoza in Misc. Sp.
Proc. No. 2993, which directed the cancellation of OCT No. P-436 was
issued without factual basis. Section 112 of the old Land Registration Act
which was the apparent basis of the Order contemplated only summary
proceedings for non-controversial erasures, alterations or amendment of
entries in a certificate of title and therefore could not be invoked if there is
no unanimity among the parties, or if one of them had posed an adverse
claim or serious objection which would render the case controversial. 27

After their motion for reconsideration was denied by the Court of Appeals, the
petitioners brought forth the present petition. While asserting that the transfer and
registration of one-half of the subject property in the name of Miguel was not
done through fraud or in bad faith, they point out that at no time did the
respondents question the execution or genuineness of the "General Power of
Administration" which purportedly admits of the existence of a trust relation
between Quintin and Miguel. They also claim that the Court of Appeals failed to
appreciate the recognition which Quintin had accorded to the rights and interest
of Miguel.

Page 166 of 349

The findings of the RTC and the Court of Appeals are contradictory; hence, the
review of the case is in order. After a thorough examination of the case, we hold
28 

that the petition lacks merit and affirm the Decision of the Court of Appeals.

Miguel’s claim of ownership to half of the subject property is belied by his

statement in the Verified Petition for issuance of letters administration that he
29 

filed on 17 October 1968. Therein, he stated:

"7. — That said Quintin Franco left the following properties:

a – A parcel of agricultural land located at Pinan, Zamboanga del Norte known as

Lot No. 5172, Dipolog Cadastre-85 Ext., Cad. Case No. 9. LRC Cad. Rec. No.
769, (S.A. 7612), covered by Original Certificate of Title No. P-436, under Tax
Dec. No. 676, assessed at ₱26,120.00, with an area of 706,381 sq. m. (citations
omitted)

While he explicitly declared that the subject property belonged to Quintin, at the
same time he was remarkably silent about his claim that he acquired one-half
thereof during the lifetime of Quintin. He asserted his claim to the subject
property quite belatedly, i.e., four years after he stated under oath and in a court
pleading that it belonged in its entirety to his brother. Thus, the statement and the
accompanying silence may be appreciated in more than one context. It is a
declaration against interest and a judicial admission combined.
30 

A declaration against interest is the best evidence which affords the greatest
certainty of the facts in dispute. In the same vein, a judicial admission binds the
31 

person who makes the same, and absent any showing that this was made thru
palpable mistake, no amount of rationalization can offset it.32

In the case at bar, there is no showing of palpable mistake on the part of Miguel
when he made the admission. In his Motion to Admit Amended Petition, he
merely alleged inadvertence in failing to state his claim of co-ownership. Yet no
evidence was adduced to prove the alleged inadvertence. And even assuming
there was indeed such a mistake, Miguel had ample opportunity to make the
rectification in the initial stages of the intestate proceedings.

Bearing on the weight of the combined declaration against interest and judicial
admission is the assumption, arising from his duty as special administrator of the
estate of Quintin, that he had full knowledge of the status and extent of the
property holdings of the decedent. The following observation of the Court of
33 

Appeals is worth citing:

Page 167 of 349

"This tolerant silence militates against Miguel Franco’s claim of ‘co-ownership.’
Juxtaposed with his previous judicial admission of Quintin Franco’s absolute
ownership of Lot No. 5172, it is not difficult to see that the act of Miguel Franco in
registering one-half of the property in his name was an insidious and
surreptitious, if not belated, maneuver to deprive the legal heirs of Quintin Franco
of their lawful share and interest in the property. As a matter of fact, Miguel
Franco may well be charged with laches." 34

The statement under oath of Miguel was made in the intestate proceedings.  It 1âwphi1

was presented in evidence and utilized as such in Civil Case No. 3847. Thus 35 

from the substantive and procedural standpoints alike, the statement being both
a declaration against interest and judicial admission should be accorded the full
evidentiary value it deserves.

Another important point, albeit simply corollary. The intestate court in its
Order dated 27 August 1973 declared that Quintin was the absolute owner of the
36 

property and accordingly denied Miguel’s claim of ownership over half the subject
property. The Order was apparently issued for the purpose of determining which
properties should be included for the inventory of the estate of Miguel. While the
intestate court does not have the authority to rule with finality on questions of
ownership over the property of the decedent, it is not precluded from making a
provisional determination over such questions for purposes relevant to the
settlement of the estate, such as ruling whether or not to include properties in the
inventory of the estate. And yet, at no time did Miguel file a motion for the
37 

reconsideration of the 27 August 1973 Order of the intestate court which denied
Miguel’s claim of ownership. It was the 1 September 1973 Order of the intestate
court, by virtue of which Miguel was removed as special administrator, that he
contested. While the 27 August 1973 Order is a provisional determination of
38 

ownership over the subject property, yet conformably to ordinary experience any
prudent claimant is expected to dispute such an order which rejects his claim of
ownership. Miguel’s inaction unmistakably bolsters the unshakeable weight that
should be accorded the statement as a declaration against interest and a judicial
admission.

Now, the issue viewed from the perspective of the Torrens system of registration.
Under the Land Registration Act, title to the property covered by a Torrens title
becomes indefeasible after the expiration of one year from the entry of the
decree of registration. The decree is incontrovertible and becomes binding on all
persons whether or not they were notified of, or participated in, the in rem
registration process. OCT No. P-436, covering the subject property in its entirety,
39 

was registered as early as 9 July 1954 in the name of Quintin. A Torrens title is

Page 168 of 349

the best evidence of ownership of registered land. Whatever claim of ownership
40 

Miguel had raised should have been weighed against Quintin’s title.
Unfortunately, the Dipolog RTC, Branch 1 apparently ignored this fundamental
principle when on 6 January 1973 it issued the Order directing the registration of
half of the subject property in the name of Miguel.

The undue haste which characterized Miguel’s success in obtaining judicial

registration of his ownership over half of the subject property is noticeable. His
petition seeking the issuance of a title over his purported half of the property was
dated 2 January 1973, and yet incredibly, it was granted only four days later, or
on 6 January 1973. As the Court of Appeals correctly noted:

"The order dated January 6, 1973 of Judge Rafael T. Mendoza in Misc. Sp. Proc.
No. 2993, directing the Register of Deeds to cancel OCT No. P-436 and to issue
new separate transfer certificates of title for Lot No. 5172-A and Lot No. 5172-B
to the Heirs of Quintin Franco and Miguel Franco, respectively, was therefore
without factual basis. Besides, it would appear that the order was based on
Section 112 of the Land Registration Act (Act No. 496) which contemplates
summary proceeding for non-controversial erasures, alterations, or amendments
of entries in a certificate of title. . . . "
41

It is clear from reading Section 112 of the old Land Registration Act that the
42 

same may be utilized only under limited circumstances. Proceedings under

43 

Section 112 are summary in nature, contemplating corrections or insertions of

mistakes which are only clerical but certainly not controversial issues. More 44 

importantly, resort to the procedure laid down in Section 112 would be available
only if there is a "unanimity among the parties, or there is no adverse claim or
serious objection on the part of any party in interest." Such unanimity among the
45 

parties has been held to mean "the absence of serious controversy between the
parties in interest as to the title of the party seeking relief under said
section." Clearly, there was no such unanimity among the parties in interest,
46 

namely, all the heirs of Quintin. The surreptitious registration by Miguel of the
property had worked to the prejudice of the other heirs of Quintin.

There is no document in existence whereby the ownership of any portion of the

subject property was conveyed by Quintin to Miguel. The "General Power of
Administration" does not suffice in that regard. Indeed, it does not contain any
language that operates as a conveyance of the subject property.

The RTC ruling, from which petitioners draw heavy support, maintained that
Miguel owned half of the property because the document entitled "General Power
of Administration" states that it "admits of an existing trust relation between the

Page 169 of 349

signatory Quintin Franco on the one hand, and Miguel Franco on the other
hand." The RTC cited Article 1452 of the Civil Code which reads, thus:
47 

Art. 1452. If two or more persons agree to purchase property and by common
consent the legal title is taken in the name of one of them for the benefit of all, a
trust is created by force of law in favor of the others in proportion to the interest of
each.

Article 1452 presupposes the concurrence of two requisites before an trust can
be created, namely: that two or more persons agree to purchase a property, and
that they consent that one should take the title in his name for everyone’s
benefit. The aforementioned provision is not applicable in this case, as it clearly
48 

speaks of an instance when the property is acquired through a joint purchase by

two or more persons. That circumstance is not present in this case since the
subject property was acquired through Quintin’s application for a patent. There is
no proof that Miguel had joined Quintin in acquiring the property.

Lastly, as noted by the Court of Appeals, while tax receipts and declarations and
receipts and declarations of ownership for taxation purposes are not, in
themselves, incontrovertible evidence of ownership, they constitute at least proof
that the holder has a claim of title over the property. The subject property had
49 

been consistently declared for taxation purposes in the name of Quintin, and this
fact taken in conjunction with the other circumstances inexorably lead to the
conclusion that Miguel’s claim of ownership cannot be sustained.

Thus, even without having to inquire into the authenticity and due execution of
the "General Power of Administration," it is safe to conclude that Miguel did not
have any ownership rights over any portion of the subject property and that the
registration of half of the property in his name was baseless and afflicted with
fraud.

WHEREFORE, the above premises considered, the petition is DISMISSED for

lack of merit and the decision of the Court of appeals is AFFIRMED. Costs
against petitioners.

Page 170 of 349

G.R. No. 152364               April 15, 2010
ALEJANDRA S. LAZARO, assisted by her husband, ISAURO M. LAZARO;
LEONCIO D. SANTOS; ADOLFO SANTOS; NENITA S. LACAR; ANGELINA S.
SAGLES, assisted by her husband, ALBERTO SANTOS, JR.; REGINA
SANTOS and FABIAN SANTOS, Petitioners, 
vs.
MODESTA AGUSTIN, FILEMON AGUSTIN, VENANCIA AGUSTIN,
MARCELINA AGUSTIN, PAUL A. DALALO, NOEL A. DALALO, GREGORIO
AGUSTIN and BIENVENIDO AGUSTIN, Respondents.
DECISION
PERALTA, J.:

Assailed in the present petition for review on certiorari is the Decision1 dated

February 21, 2002 of the Court of Appeals (CA) in CA-G.R. SP No. 63321. The
CA had affirmed, with modification, the Decision2 dated February 6, 2001 of the
Regional Trial Court (RTC) of Laoag City, Branch 13, in Civil Case No. 11951-13,
which also affirmed, with modification, the Decision3 dated January 6, 2000 of the
Municipal Trial Court in Cities (MTCC) of Laoag City, Branch 1, in Civil Case No.
2834.

The factual and procedural antecedents of the case are as follows:

On November 4, 1998, herein petitioners filed against herein respondents a

Complaint4 for partition with the MTCC of Laoag City, alleging as follows:

xxxx

II

That the plaintiffs and the defendants are the descendants of the late
Simeon C. Santos, married to Trinidad Duldulao, who died intestate
leaving a parcel of land situated in the Barrio of Natividad Nstra. Sra.,
Municipality of Laoag, designated as Lot No. 10675 of the Cadastral
Survey of Laoag;

III

That Simeon C. Santos during his lifetime, married to Trinidad Duldulao,

begot four (4) legitimate children, namely: Basilisa D. Santos, Alberto D.
Santos, Leoncio D. Santos and Alejandra D. Santos. Basilisa D. Santos,
[who] was married to Petronilo Agustin, is now deceased; Alberto Santos,
married to Rizalina Guerrero, is now deceased, while Leoncio D. Santos,

Page 171 of 349

married to Dictinia Tabeta, and Alejandra D. Santos married to Isauro M.
Lazaro, are still living;

IV

That in the desire of the children of Simeon C. Santos from whom the
parcel of land originated as owner, his children, namely[:] Alberto, Leoncio
and Alejandra, all surnamed Santos, consented that the parcel of land
mentioned in paragraph II of this complaint be titled in the name of
Basilisa, the latter being the eldest and so Original Certificate of Title No.
20742 in the name of Basilisa Santos was obtained although it was agreed
among them that it did not and does not necessarily mean that Basilisa
Santos is the sole and exclusive owner of this parcel of land, and as
embodied in the Title obtained in the name of Basilisa Santos, the parcel of
land is particularly described as follows:

A parcel of land (Lot No. 10676 of the Cadastral survey of Laoag), with the
improvements thereon, situated in the Barrio of Natividad Nstra. Sra.,
Municipality of Laoag. Bounded on the NE. by Lot No. 10677; on the SE.
by Panganiban Street; on the SW. by Lot No. 10672; and on NW. by Lot
No. 1065, containing an area of three hundred and one (301) square
meters, more or less, covered by Tax Declaration No. 010-00224 for the
year 1994 in the names of Modesta Agustin, et al. with a market value of
₱96,320.00 and an assessed value of ₱14,450.00.

That there is a residential house constructed on the lot described in

paragraph IV of this complaint and in the construction of which plaintiff
Alejandra Santos, then still single, spent the amount of ₱68,308.60, while
Basilisa Santos and her children spent the amount of ₱3,495.00.
Afterwards, Alejandra Santos got married to Isauro M. Lazaro who was
employed in a private company and when he retired from the service,
some additional constructions were made on the residential house and lot
such as a bedroom, azotea, two (2) toilets, two (2) kitchens, a car garage,
the money spent for these additional constructions came from the earnings
of the spouses Alejandra Santos-Lazaro and Isauro M. Lazaro. The said
residential house is now covered by Tax Declaration No. 010-00225 in the
names of Basilio Agustin (should be Basilisa Agustin) and Alejandra
Santos for the year 1994 with a market value of ₱93,920.00 and an
assessed value of zero;

Page 172 of 349

VI

That without the knowledge and consent of the plaintiffs, the title of the lot
described in paragraph IV of the complaint was transferred into another
title which is now Transfer Certificate of Title No. T-20695 in the names of
Modesta Agustin, Filemon Agustin, Venancia Agustin, Marcelina Agustin,
Monica Agustin, Gregorio Agustin and Bienvenido Agustin who are the
children of the late Basilisa Santos-Agustin who are herein named as
defendants with Monica Agustin now deceased represented by her
children Paul A. Dalalo and Noel A. Dalalo as defendants;

VII

That during the lifetime of Basilisa Santos-Agustin, plaintiff Alejandra

Santos-Lazaro informed the former, who are sisters, that the transfer of the
title covering the lot described in paragraph IV of this complaint in the
name of Basilisa Santos into the names of her children would erroneously
imply that the lot is solely and exclusively owned by Basilisa Santos-
Agustin's children, but Basilisa Santos-Agustin replied [to] plaintiff
Alejandra Santos-Lazaro not to worry because an affidavit was already
executed by her recognizing and specifying that her brothers Alberto
Santos and Leoncio Santos, and her sister Alejandra Santos-Lazaro would
each get one fourth (¼) share of the lot;

VIII

That in a move to determine if the children and the heirs of Basilisa

Santos-Agustin, namely: Modesta Agustin, Filemon Agustin, Venancia
Agustin, Marcelina Agustin, Paul Dalalo and Noel Dalalo who are the
successors of their mother the late Monica Agustin, Gregorio Agustin and
Bienvenido Agustin would follow the line of thinking of their mother and
grandmother of Paul A. Dalalo and Noel A. Dalalo on the shares of the lot
and residential house erected on it, the plaintiffs initiated a partition in the
barangay court where the lot is situated described in paragraph IV of this
complaint, but that the children of Basilisa Santos-Agustin and her
grandchildren Paul A. Dalalo and Noel A. Dalalo refused and opposed the
partition claiming that they are the sole and exclusive owners of the lot
being that the lot is now titled in their names, and hence there was no
settlement as shown by the certification of the barangay court hereto
attached as annex "A";

IX

Page 173 of 349

 That plaintiffs now invoke the intervention of the court to partition the lot in
accordance with the law on intestate succession and to partition the
residential house as specified below. x x x

x x x x5

Petitioners also prayed for the grant of attorney's fees, moral and exemplary
damages, and costs of suit.

Herein respondents filed their Answer with Counterclaim,6 raising the following as

their Special/Affirmative Defenses:

1. The subject parcel of land is owned exclusively by the defendants as

heirs of the late Basilisa Santos, wife of Petronilo Agustin, who was the
original registered owner of the property evidenced by OCT No. 20742; the
plaintiffs never became owners of said land. There was never any
agreement between the ascendants of the plaintiffs and defendants,
neither is there any agreement between the plaintiffs and defendants
themselves that in the ownership, the plaintiffs have a share over the lot;

2. The defendants are the ones paying for the real estate taxes of said
land;

3. Some of the plaintiffs were able to stay on the subject house because
defendants' mother Basilisa Santos was the eldest sibling and she had to
take care of her brother Leoncio and sister Alejandra when these siblings
were not yet employed and Basilisa allowed them to reside in the house
constructed within the lot; Alejandra Santos stayed in the house up to the
present with the agreement that she will spend for the renovation of the
house in lieu of monthly rentals that she has to pay when she already
became financially able;

4. Prior to 1962, subject property was mortgaged by Basilisa Santos

Agustin to the Philippine National Bank and the property was foreclosed by
PNB when the loan was not paid, hence, TCT No. (T-9522)-4495, under
the name of the Philippine National Bank was issued (Annex "A").
Thereafter, Basilisa Santos-Agustin, purchased it from the PNB and TCT
No. T-5662 was issued under her name (Annex "B"); the property was later
on transferred to her direct descendants, the defendants herein as
evidenced by TCT No. T-20695 (Annex "C");

x x x x7

Page 174 of 349

Respondents then prayed that petitioners' complaint be dismissed. In their
Counterclaim, respondents asked the court to direct petitioners to pay
reasonable compensation for the latter's use of the disputed property, exemplary
and moral damages, attorney's fees, and costs of suit.

After the issues were joined and the pre-trial was terminated, trial on the merits
ensued.

On January 6, 2000, the MTCC rendered its Decision8 dismissing the complaint

and denying petitioners' prayer for partition.

The MTCC ruled, among others, that no evidentiary value could be given to the
affidavit allegedly executed by Basilisa, wherein she purportedly acknowledged
her co-ownership of the subject property with her siblings Alberto, Leoncio and
Alejandra, because the affiant was not presented on the witness stand, such that
all the statements made in her affidavit were hearsay. Moreover, the MTCC held
that two credible witnesses testified in plain, simple and straightforward manner
that at the time the affidavit was supposed to have been signed and sworn to
before the notary public, Basilisa was already bedridden and an invalid who
could not even raise her hand to feed herself. In addition, the MTCC also gave
credence to the testimony of the notary public, before whom the document was
supposedly signed and sworn to, that the said affidavit was already complete and
thumbmarked when the same was presented to him by a person who claimed to
be Basilisa.

Petitioners filed an appeal with the RTC of Laoag City.

On February 6, 2001 the RTC issued a Decision 9 affirming, with modification, the
judgment of the MTCC. The RTC found that the house erected on the disputed
lot was built and renovated by petitioners in good faith. As a consequence, the
RTC held that petitioners were entitled to indemnity representing the costs of the
construction and renovation of the said house. The dispositive portion of the RTC
Decision, thus, reads:

WHEREFORE, the decision of the lower court is hereby affirmed with the
modification directing the appellees [herein respondents] to indemnify the
appellants [herein petitioners] in the amount of ₱68,308.60 as proved by them.

Considering the apparent error of the lower court in quoting the questioned lot as
Lot No. 10675, the same is hereby corrected so as to reflect the correct lot
number as Lot No. 10676 to conform to the evidence presented.

Page 175 of 349

SO ORDERED.10

Aggrieved by the RTC Decision, petitioners filed a petition for review with the CA.

On February 21, 2002, the CA issued its presently assailed Decision disposing
as follows:

WHEREFORE, the decision dated February 6, 2001 rendered in Civil Case No.
11951-13 is hereby AFFIRMED subject to the MODIFICATION that appellees
[herein respondents] pay the amount of ₱68,308.60 in indemnity solely to
appellant Alejandra Santos-Lazaro.

SO ORDERED.11

Hence, the instant petition based on the following grounds:

I. THE SWORN STATEMENT OF BASILISA S. AGUSTIN IS A DECLARATION

AGAINST INTEREST WHICH ESTABLISHES THE CO-OWNERSHIP OF LOT
NO. 10676 BY AND AMONG THE PETITIONERS AND RESPONDENTS AS
HEIRS OF THE LATE SIMEON C. SANTOS.12

II. THE CO-OWNERSHIP OF LOT NO. 10676 BY AND AMONG BASILISA S.

AGUSTIN, ALBERTO D. SANTOS, ALEJANDRA S. LAZARO AND LEONCIO D.
SANTOS DID NOT TERMINATE AS A RESULT OF THE TRANSFER OF THE
LOT'S OWNERSHIP PRECIPITATED BY ACTS OF BASILISA S. AGUSTIN
WITH RESPECT TO THE SUBJECT PROPERTY.13

III. PETITIONER ALEJANDRA S. LAZARO IS A CO-OWNER OF THE

RESIDENTIAL HOUSE ON LOT NO. 10676 NOT MERELY A BUILDER IN
GOOD FAITH WITH RESPECT THERETO AND AS SUCH, IS ENTITLED TO A
PARTITION OF THE SUBJECT HOUSE.14

In their first assigned error, petitioners contend that Basilisa's sworn statement
which recognizes her siblings' share in the disputed property is a declaration
against interest which is one of the recognized exceptions to the hearsay rule.
Petitioners argue that since the sworn statement was duly notarized, it should be
admitted in court without further proof of its due execution and authenticity; that
the testimonies of Basilisa's nurse and physician cannot qualify as clear and
convincing evidence which could overthrow such notarized document; that the
notary public cannot impugn the same document which he notarized for to do so
would render notarized documents worthless and unreliable resulting in prejudice
to the public.

Page 176 of 349

As to the second assigned error, petitioners aver that their co-ownership of the
questioned property with Basilisa did not cease to exist when the Philippine
National Bank (PNB) consolidated its ownership over the said parcel of land.
Petitioners assert that they did not lose their share in the property co-owned
when their share was mortgaged by Basilisa without their knowledge and
consent; that the mortgage was limited only to the portion that may be allotted to
Basilisa upon termination of their co-ownership; that PNB acquired ownership
only of the share pertaining to Basilisa; that when Basilisa bought back the
property from PNB, she simply re-acquired the portion pertaining to her and
simply resumed co-ownership of the property with her siblings. Petitioners also
contend that Basilisa's children did not acquire ownership of the subject lot by
prescription, and that neither Basilisa nor respondents repudiated their co-
ownership.

Anent the third assignment of error, petitioners argue that Alejandra Lazaro,
being a co-owner of the disputed parcel of land and not simply a builder in good
faith, is entitled to a partition of the subject residential house.

At the outset, it bears to point out that it is wrong for petitioners to argue that
Basilisa's alleged sworn statement is a declaration against interest. It is not a
declaration against interest. Instead, it is an admission against interest. 1avvphi1

Indeed, there is a vital distinction between admissions against interest and

declarations against interest. Admissions against interest are those made by a
party to a litigation or by one in privity with or identified in legal interest with such
party, and are admissible whether or not the declarant is available as a
witness.15 Declarations against interest are those made by a person who is
neither a party nor in privity with a party to the suit, are secondary evidence, and
constitute an exception to the hearsay rule. They are admissible only when the
declarant is unavailable as a witness.16 In the present case, since Basilisa is
respondents' predecessor-in-interest and is, thus, in privity with the latter's legal
interest, the former's sworn statement, if proven genuine and duly executed,
should be considered as an admission against interest.

A cursory reading of the subject sworn statement also reveals that it refers to a
parcel of land denominated as Lot No. 10678 while the property being disputed is
Lot No. 10676.17 On this basis, it cannot be concluded with certainty that the
property being referred to in the sworn statement is the same property claimed
by petitioners.

Having made the foregoing observations and discussions, the question that
arises is whether the subject sworn statement, granting that it refers to the

Page 177 of 349

property being disputed in the present case, can be given full faith and credence
in view of the issues raised regarding its genuineness and due execution.

The Court rules in the negative.

Settled is the rule that generally, a notarized document carries the evidentiary
weight conferred upon it with respect to its due execution, and documents
acknowledged before a notary public have in their favor the presumption of
regularity.18 However, this presumption is not absolute and may be rebutted by
clear and convincing evidence to the contrary.19

Moreover, not all notarized documents are exempted from the rule on
authentication.20 Thus, an affidavit does not automatically become a public
document just because it contains a notarial jurat.21 The presumptions that attach
to notarized documents can be affirmed only so long as it is beyond dispute that
the notarization was regular.22

However, a question involving the regularity of notarization as well as the due

execution of the subject sworn statement of Basilisa would require an inquiry into
the appreciation of evidence by the trial court. It is not the function of this Court to
review, examine and evaluate or weigh the probative value of the evidence
presented. A question of fact would arise in such event. Settled is the rule that
questions of fact cannot be raised in an appeal via certioraribefore the Supreme
Court and are not proper for its consideration.23 The rationale behind this doctrine
is that a review of the findings of fact of the trial courts and the appellate tribunal
is not a function this Court normally undertakes.24 The Court will not weigh the
evidence all over again unless there is a showing that the findings of the lower
courts are totally devoid of support or are clearly erroneous so as to constitute
serious abuse of discretion.25Although there are recognized exceptions26 to this
rule, none exists in the present case to justify a departure therefrom.

Petitioners rely heavily on the presumption of regularity accorded by law to

notarized documents. While indeed, a notarized document enjoys this
presumption, the fact that a deed is notarized is not a guarantee of the validity of
its contents.27 As earlier discussed, the presumption is not absolute and may be
rebutted by clear and convincing evidence to the contrary.28 The presumption
cannot be made to apply to the present case because the regularity in the
execution of the sworn statement was challenged in the proceedings below
where its prima facie validity was overthrown by the highly questionable
circumstances under which it was supposedly executed, as well as the
testimonies of witnesses who testified on the improbability of execution of the
sworn statement, as well as on the physical condition of the signatory, at the time

Page 178 of 349

the questioned document was supposedly executed. The trial and appellate
courts were unanimous in giving credence to the testimonies of these witnesses.
The Court has repeatedly held that it will not interfere with the trial court's
determination of the credibility of witnesses, unless there appears on record
some fact or circumstance of weight and influence which has been overlooked or
the significance of which has been misinterpreted.29 The reason for this is that the
trial court was in a better position to do so, because it heard the witnesses testify
before it and had every opportunity to observe their demeanor and deportment
on the witness stand.30

Considering the foregoing, the Court finds no reason to reverse the rulings of the
MTCC, the RTC and the CA. Although the questioned sworn statement is a
public document having in its favor the presumption of regularity, such
presumption was adequately refuted by competent witnesses.

The Court further agrees with the ruling of the RTC that:

The testimony of [the notary public] Atty. Angel Respicio did not suffice to rebut
the evidence of the appellees considering his admission that the affidavit was
already thumbmarked when presented to him by one who claimed to be Basilisa
Santos and whom, the witness said he did not know personally. Further, what
makes the documents suspect is the fact that it was subscribed on the same date
as the financial statement of Alejandra Santos.

It may not be amiss to point out, at this juncture, that the principal function of a
notary public is to authenticate documents.31 When a notary public certifies to the
due execution and delivery of a document under his hand and seal, he gives the
document the force of evidence.32 Indeed, one of the purposes of requiring
documents to be acknowledged before a notary public, in addition to the
solemnity which should surround the execution and delivery of documents, is to
authorize such documents to be given without further proof of their execution and
delivery.33 A notarial document is by law entitled to full faith and credit upon its
face. Courts, administrative agencies and the public at large must be able to rely
upon the acknowledgment executed before a notary public and appended to a
private instrument.34 Hence, a notary public must discharge his powers and
duties, which are impressed with public interest, with accuracy and fidelity.35 A
notary public should not notarize a document unless the persons who signed the
same are the very same persons who executed and personally appeared before
him to attest to the contents and truth of what are stated therein.36

In the instant case, the notary public should have exercised utmost diligence in
ascertaining the true identity of the person executing the said sworn statement.

Page 179 of 349

However, the notary public did not comply with this requirement. He simply relied
on the affirmative answers of the person appearing before him attesting that she
was Basilisa Santos; that the contents of the sworn statement are true; and that
the thumbmark appearing on the said document was hers. However, this would
not suffice. He could have further asked the person who appeared before him to
produce any identification to prove that she was indeed Basilisa Santos,
considering that the said person was not personally known to him, and that the
thumbmark appearing on the document sought to be notarized was not affixed in
his presence. But he did not. Thus, the lower courts did not commit any error in
not giving evidentiary weight to the subject sworn statement.

The second and third assigned errors proceed on the presumption that
petitioners are co-owners of the disputed property. Since the Court has already
ruled that the lower courts did not err in finding that petitioners failed to prove
their claim that they were co-owners of the said property, there is no longer any
need to discuss the other assigned errors.

WHEREFORE, the petition is DENIED. The February 21, 2002 Decision of the
Court of Appeals in CA-G.R. SP No. 63321 is AFFIRMED.

Page 180 of 349

G.R. No. 161434             March 3, 2004
MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners, 
vs.
The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a.
FERNANDO POE, JR.) and VICTORINO X. FORNIER, respondents.
x-----------------------------x
G.R. No. 161634             March 3, 2004
ZOILO ANTONIO VELEZ, petitioner, 
vs.
RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE, JR., respondent.
x-----------------------------x
G. R. No. 161824             March 3, 2004
VICTORINO X. FORNIER, petitioner, 
vs.
HON. COMMISSION ON ELECTIONS and RONALD ALLAN KELLEY POE,
ALSO KNOWN AS FERNANDO POE JR., respondents.
DECISION
VITUG, J.:

Citizenship is a treasured right conferred on those whom the state believes

are deserving of the privilege. It is a "precious heritage, as well as an
inestimable acquisition,"1 that cannot be taken lightly by anyone - either by
those who enjoy it or by those who dispute it.

Before the Court are three consolidated cases, all of which raise a single
question of profound importance to the nation. The issue of citizenship is brought
up to challenge the qualifications of a presidential candidate to hold the highest
office of the land. Our people are waiting for the judgment of the Court with bated
breath. Is Fernando Poe, Jr., the hero of silver screen, and now one of the main
contenders for the presidency, a natural-born Filipino or is he not?

The moment of introspection takes us face to face with Spanish and American
colonial roots and reminds us of the rich heritage of civil law and common law
traditions, the fusion resulting in a hybrid of laws and jurisprudence that could be
no less than distinctly Filipino.

Antecedent Case Settings

On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as

Fernando Poe, Jr. (hereinafter "FPJ"), filed his certificate of candidacy for the
position of President of the Republic of the Philippines under the Koalisyon ng
Nagkakaisang Pilipino (KNP) Party, in the forthcoming national elections. In his

Page 181 of 349

certificate of candidacy, FPJ, representing himself to be a natural-born citizen of
the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his
date of birth to be 20 August 1939 and his place of birth to be Manila.

Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier,

Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe,
also known as Fernando Poe, Jr., Respondents," initiated, on 09 January 2004, a
petition docketed SPA No. 04-003 before the Commission on Elections
("COMELEC") to disqualify FPJ and to deny due course or to cancel his
certificate of candidacy upon the thesis that FPJ made a material
misrepresentation in his certificate of candidacy by claiming to be a natural-born
Filipino citizen when in truth, according to Fornier, his parents were foreigners;
his mother, Bessie Kelley Poe, was an American, and his father, Allan Poe, was
a Spanish national, being the son of Lorenzo Pou, a Spanish subject. Granting,
petitioner asseverated, that Allan F. Poe was a Filipino citizen, he could not have
transmitted his Filipino citizenship to FPJ, the latter being an illegitimate child of
an alien mother. Petitioner based the allegation of the illegitimate birth of
respondent on two assertions - first, Allan F. Poe contracted a prior marriage to a
certain Paulita Gomez before his marriage to Bessie Kelley and, second, even if
no such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a
year after the birth of respondent.

In the hearing before the Third Division of the COMELEC on 19 January 2004,
petitioner, in support of his claim, presented several documentary exhibits - 1) a
copy of the certificate of birth of FPJ, 2) a certified photocopy of an affidavit
executed in Spanish by Paulita Poe y Gomez attesting to her having filed a case
for bigamy and concubinage against the father of respondent, Allan F. Poe, after
discovering his bigamous relationship with Bessie Kelley, 3) an English
translation of the affidavit aforesaid, 4) a certified photocopy of the certificate of
birth of Allan F. Poe, 5) a certification issued by the Director of the Records
Management and Archives Office, attesting to the fact that there was no record in
the National Archives that a Lorenzo Poe or Lorenzo Pou resided or entered the
Philippines before 1907, and 6) a certification from the Officer-In-Charge of the
Archives Division of the National Archives to the effect that no available
information could be found in the files of the National Archives regarding the birth
of Allan F. Poe.

On his part, respondent, presented twenty-two documentary pieces of evidence,

the more significant ones being - a) a certification issued by Estrella M. Domingo
of the Archives Division of the National Archives that there appeared to be no
available information regarding the birth of Allan F. Poe in the registry of births for

Page 182 of 349

San Carlos, Pangasinan, b) a certification issued by the Officer-In-Charge of the
Archives Division of the National Archives that no available information about the
marriage of Allan F. Poe and Paulita Gomez could be found, c) a certificate of
birth of Ronald Allan Poe, d) Original Certificate of Title No. P-2247 of the
Registry of Deeds for the Province of Pangasinan, in the name of Lorenzo Pou,
e) copies of Tax Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in
the name of Lorenzo Pou, f) a copy of the certificate of death of Lorenzo Pou, g)
a copy of the purported marriage contract between Fernando Pou and Bessie
Kelley, and h) a certification issued by the City Civil Registrar of San Carlos City,
Pangasinan, stating that the records of birth in the said office during the period of
from 1900 until May 1946 were totally destroyed during World War II.

On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit.
Three days later, or on 26 January 2004, Fornier filed his motion for
reconsideration. The motion was denied on 06 February 2004 by the COMELEC
en banc. On 10 February 2004, petitioner assailed the decision of the COMELEC
before this Court conformably with Rule 64, in relation to Rule 65, of the Revised
Rules of Civil Procedure. The petition, docketed G. R. No. 161824, likewise
prayed for a temporary restraining order, a writ of preliminary injunction or any
other resolution that would stay the finality and/or execution of the COMELEC
resolutions.

The other petitions, later consolidated with G. R. No. 161824, would include G.
R. No. 161434, entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr.,
vs. The Commission on Elections, Ronald Allan Kelley Poe (a.k.a. ‘Fernando
Poe, Jr.’), and Victorino X. Fornier," and the other, docketed G. R. No. 161634,
entitled "Zoilo Antonio G. Velez, vs. Ronald Allan Kelley Poe, a.k.a. Fernando
Poe, Jr.," both challenging the jurisdiction of the COMELEC and asserting that,
under Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the
Supreme Court had original and exclusive jurisdiction to resolve the basic issue
on the case.

Jurisdiction of the Court

In G. R. No. 161824

In seeking the disqualification of the candidacy of FPJ and to have the

COMELEC deny due course to or cancel FPJ’s certificate of candidacy for
alleged misrepresentation of a material fact (i.e., that FPJ was a natural-born
citizen) before the COMELEC, petitioner Fornier invoked Section 78 of the
Omnibus Election Code –

Page 183 of 349

 "Section 78. Petition to deny due course to or cancel a certificate of
candidacy. --- A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the
ground that any material representation contained therein as required
under Section 74 hereof is false" –

in consonance with the general powers of COMELEC expressed in Section 52 of

the Omnibus Election Code -

"Section 52. Powers and functions of the Commission on Elections. In

addition to the powers and functions conferred upon it by the Constitution,
the Commission shall have exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections for the
purpose of ensuring free, orderly and honest elections" -

and in relation to Article 69 of the Omnibus Election Code which would

authorize "any interested party" to file a verified petition to deny or cancel
the certificate of candidacy of any nuisance candidate.

Decisions of the COMELEC on disqualification cases may be reviewed by the

Supreme Court per Rule 642 in an action for certiorari under Rule 653 of the
Revised Rules of Civil Procedure. Section 7, Article IX, of the 1987 Constitution
also reads –

"Each Commission shall decide by a majority vote of all its Members any
case or matter brought before it within sixty days from the date of its
submission for decision or resolution. A case or matter is deemed
submitted for decision or resolution upon the filing of the last pleading,
brief, or memorandum, required by the rules of the Commission or by the
Commission itself. Unless otherwise provided by this Constitution or by
law, any decision, order, or ruling of each Commission may be brought to
the Supreme Court on certiorari by the aggrieved party within thirty days
from receipt of a copy thereof."

Additionally, Section 1, Article VIII, of the same Constitution provides that judicial
power is vested in one Supreme Court and in such lower courts as may be
established by law which power "includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government."

Page 184 of 349

It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly
elevated to, and could well be taken cognizance of by, this Court. A contrary view
could be a gross denial to our people of their fundamental right to be fully
informed, and to make a proper choice, on who could or should be elected to
occupy the highest government post in the land.

In G. R. No. 161434 and G. R. No. 161634

Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634,

invoke the provisions of Article VII, Section 4, paragraph 7, of the 1987
Constitution in assailing the jurisdiction of the COMELEC when it took
cognizance of SPA No. 04-003 and in urging the Supreme Court to instead take
on the petitions they directly instituted before it. The Constitutional provision cited
reads:

"The Supreme Court, sitting en banc, shall be the sole judge of all contests
relating to the election, returns, and qualifications of the President or Vice-
President, and may promulgate its rules for the purpose."

The provision is an innovation of the 1987 Constitution. The omission in the 1935
and the 1973 Constitution to designate any tribunal to be the sole judge of
presidential and vice-presidential contests, has constrained this Court to declare,
in Lopez vs. Roxas,4 as "not (being) justiciable" controversies or disputes
involving contests on the elections, returns and qualifications of the President or
Vice-President. The constitutional lapse prompted Congress, on 21 June 1957,
to enact Republic Act No. 1793, "An Act Constituting an Independent Presidential
Electoral Tribunal to Try, Hear and Decide Protests Contesting the Election of the
President-Elect and the Vice-President-Elect of the Philippines and Providing for
the Manner of Hearing the Same." Republic Act 1793 designated the Chief
Justice and the Associate Justices of the Supreme Court to be the members of
the tribunal. Although the subsequent adoption of the parliamentary form of
government under the 1973 Constitution might have implicitly affected Republic
Act No. 1793, the statutory set-up, nonetheless, would now be deemed revived
under the present Section 4, paragraph 7, of the 1987 Constitution.

Ordinary usage would characterize a "contest" in reference to a post-election

scenario. Election contests consist of either an election protest or a quo warranto
which, although two distinct remedies, would have one objective in view, i.e., to
dislodge the winning candidate from office. A perusal of the phraseology in Rule
12, Rule 13, and Rule 14 of the "Rules of the Presidential Electoral Tribunal,"
promulgated by the Supreme Court en banc on 18 April 1992, would support this
premise -

Page 185 of 349

 "Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests
relating to the election, returns, and qualifications of the President or Vice-
President of the Philippines.

"Rule 13. How Initiated. - An election contest is initiated by the filing of an

election protest or a petition for quo warranto against the President or
Vice-President. An election protest shall not include a petition for quo
warranto. A petition for quo warranto shall not include an election protest.

"Rule 14. Election Protest. - Only the registered candidate for President or

for Vice-President of the Philippines who received the second or third
highest number of votes may contest the election of the President or the
Vice-President, as the case may be, by filing a verified petition with the
Clerk of the Presidential Electoral Tribunal within thirty (30) days after the
proclamation of the winner."

The rules categorically speak of the jurisdiction of the tribunal over contests
relating to the election, returns and qualifications of the "President" or "Vice-
President", of the Philippines, and not of "candidates" for President or Vice-
President. A quo warranto proceeding is generally defined as being an action
against a person who usurps, intrudes into, or unlawfully holds or exercises a
public office.5 In such context, the election contest can only contemplate a post-
election scenario. In Rule 14, only a registered candidate who would have
received either the second or third highest number of votes could file an election
protest. This rule again presupposes a post-election scenario.

It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section
4, paragraph 7, of the 1987 Constitution, would not include cases directly brought
before it, questioning the qualifications of a candidate for the presidency or vice-
presidency before the elections are held.

Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs.

Commission on Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio
Velez vs. Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." would have to be
dismissed for want of jurisdiction.

The Citizenship Issue

Now, to the basic issue; it should be helpful to first give a brief historical
background on the concept of citizenship.

Page 186 of 349

Perhaps, the earliest understanding of citizenship was that given by Aristotle,
who, sometime in 384 to 322 B.C., described the "citizen" to refer to a man who
shared in the administration of justice and in the holding of an office.6Aristotle
saw its significance if only to determine the constituency of the "State," which he
described as being composed of such persons who would be adequate in
number to achieve a self-sufficient existence.7 The concept grew to include one
who would both govern and be governed, for which qualifications like autonomy,
judgment and loyalty could be expected. Citizenship was seen to deal with rights
and entitlements, on the one hand, and with concomitant obligations, on the
other.8 In its ideal setting, a citizen was active in public life and fundamentally
willing to submit his private interests to the general interest of society.

The concept of citizenship had undergone changes over the centuries. In the
18th century, the concept was limited, by and large, to civil citizenship, which
established the rights necessary for individual freedom, such as rights to
property, personal liberty and justice.9 Its meaning expanded during the 19th
century to include political citizenship, which encompassed the right to participate
in the exercise of political power.10 The 20th century saw the next stage of the
development of social citizenship, which laid emphasis on the right of the citizen
to economic well-being and social security.11 The idea of citizenship has gained
expression in the modern welfare state as it so developed in Western Europe. An
ongoing and final stage of development, in keeping with the rapidly shrinking
global village, might well be the internationalization of citizenship.12

The Local Setting - from Spanish Times to the Present

There was no such term as "Philippine citizens" during the Spanish regime but
"subjects of Spain" or "Spanish subjects."13 In church records, the natives were
called 'indios', denoting a low regard for the inhabitants of the archipelago.
Spanish laws on citizenship became highly codified during the 19th century but
their sheer number made it difficult to point to one comprehensive law. Not all of
these citizenship laws of Spain however, were made to apply to the Philippine
Islands except for those explicitly extended by Royal Decrees.14

Spanish laws on citizenship were traced back to the Novisima Recopilacion,

promulgated in Spain on 16 July 1805 but as to whether the law was extended to
the Philippines remained to be the subject of differing views among
experts;15 however, three royal decrees were undisputably made applicable to
Spaniards in the Philippines - the Order de la Regencia of 14 August 1841,16 the
Royal Decree of 23 August 1868 specifically defining the political status of
children born in the Philippine Islands,17 and finally, the Ley Extranjera de

Page 187 of 349

Ultramar of 04 July 1870, which was expressly made applicable to the
Philippines by the Royal Decree of 13 July 1870.18

The Spanish Constitution of 1876 was never extended to the Philippine Islands
because of the express mandate of its Article 89, according to which the
provisions of the Ultramar among which this country was included, would be
governed by special laws.19

It was only the Civil Code of Spain, made effective in this jurisdiction on 18
December 1889, which came out with the first categorical enumeration of who
were Spanish citizens. -

"(a) Persons born in Spanish territory,

"(b) Children of a Spanish father or mother, even if they were born outside
of Spain,

"(c) Foreigners who have obtained naturalization papers,

"(d) Those who, without such papers, may have become domiciled
inhabitants of any town of the Monarchy."20

The year 1898 was another turning point in Philippine history. Already in the state
of decline as a superpower, Spain was forced to so cede her sole colony in the
East to an upcoming world power, the United States. An accepted principle of
international law dictated that a change in sovereignty, while resulting in an
abrogation of all political laws then in force, would have no effect on civil laws,
which would remain virtually intact.

The Treaty of Paris was entered into on 10 December 1898 between Spain and
the United States.21 Under Article IX of the treaty, the civil rights and political
status of the native inhabitants of the territories ceded to the United States would
be determined by its Congress -

"Spanish subjects, natives of the Peninsula, residing in the territory over

which Spain by the present treaty relinquishes or cedes her sovereignty
may remain in such territory or may remove therefrom, retaining in either
event all their rights of property, including the right to sell or dispose of
such property or of its proceeds; and they shall also have the right to carry
on their industry, commerce, and professions, being subject in respect
thereof to such laws as are applicable to foreigners. In case they remain in
the territory they may preserve their allegiance to the Crown of Spain by

Page 188 of 349

 making, before a court of record, within a year from the date of the
exchange of ratifications of this treaty, a declaration of their decision to
preserve such allegiance; in default of which declaration they shall be held
to have renounced it and to have adopted the nationality of the territory in
which they reside.

Thus –

"The civil rights and political status of the native inhabitants of the
territories hereby ceded to the United States shall be determined by the
Congress."22

Upon the ratification of the treaty, and pending legislation by the United States
Congress on the subject, the native inhabitants of the Philippines ceased to be
Spanish subjects. Although they did not become American citizens, they,
however, also ceased to be "aliens" under American laws and were thus issued
passports describing them to be citizens of the Philippines entitled to the
protection of the United States.

The term "citizens of the Philippine Islands" appeared for the first time in the
Philippine Bill of 1902, also commonly referred to as the Philippine Organic Act of
1902, the first comprehensive legislation of the Congress of the United States on
the Philippines -

".... that all inhabitants of the Philippine Islands continuing to reside therein,
who were Spanish subjects on the 11th day of April, 1891, and then
resided in said Islands, and their children born subsequent thereto, shall
be deemed and held to be citizens of the Philippine Islands and as such
entitled to the protection of the United States, except such as shall have
elected to preserve their allegiance to the Crown of Spain in accordance
with the provisions of the treaty of peace between the United States and
Spain, signed at Paris, December tenth eighteen hundred and ninety
eight."23

Under the organic act, a "citizen of the Philippines" was one who was an
inhabitant of the Philippines, and a Spanish subject on the 11th day of April 1899.
The term "inhabitant" was taken to include 1) a native-born inhabitant, 2) an
inhabitant who was a native of Peninsular Spain, and 3) an inhabitant who
obtained Spanish papers on or before 11 April 1899.24

Controversy arose on to the status of children born in the Philippines from 11

April 1899 to 01 July 1902, during which period no citizenship law was extant in

Page 189 of 349

the Philippines. Weight was given to the view, articulated in jurisprudential writing
at the time, that the common law principle of jus soli, otherwise also known as
the principle of territoriality, operative in the United States and England, governed
those born in the Philippine Archipelago within that period.25 More about this later.

In 23 March 1912, the Congress of the United States made the following
amendment to the Philippine Bill of 1902 -

"Provided, That the Philippine Legislature is hereby authorized to provide

by law for the acquisition of Philippine citizenship by those natives of the
Philippine Islands who do not come within the foregoing provisions, the
natives of other insular possession of the United States, and such other
persons residing in the Philippine Islands who would become citizens of
the United States, under the laws of the United States, if residing therein."26

With the adoption of the Philippine Bill of 1902, the concept of "Philippine
citizens" had for the first time crystallized. The word "Filipino" was used by
William H. Taft, the first Civil Governor General in the Philippines when he initially
made mention of it in his slogan, "The Philippines for the Filipinos." In 1916, the
Philippine Autonomy Act, also known as the Jones Law restated virtually the
provisions of the Philippine Bill of 1902, as so amended by the Act of Congress in
1912 -

"That all inhabitants of the Philippine Islands who were Spanish subjects
on the eleventh day of April, eighteen hundred and ninety-nine, and then
resided in said Islands, and their children born subsequently thereto, shall
be deemed and held to be citizens of the Philippine Islands, except such
as shall have elected to preserve their allegiance to the Crown of Spain in
accordance with the provisions of the treaty of peace between the United
States and Spain, signed at Paris December tenth, eighteen hundred and
ninety-eight and except such others as have since become citizens of
some other country; Provided, That the Philippine Legislature, herein
provided for, is hereby authorized to provide for the acquisition of
Philippine citizenship by those natives of the Philippine Islands who do not
come within the foregoing provisions, the natives of the insular
possessions of the United States, and such other persons residing in the
Philippine Islands who are citizens of the United States, or who could
become citizens of the United States under the laws of the United States, if
residing therein."

Under the Jones Law, a native-born inhabitant of the Philippines was deemed to
be a citizen of the Philippines as of 11 April 1899 if he was 1) a subject of Spain

Page 190 of 349

on 11 April 1899, 2) residing in the Philippines on said date, and, 3) since that
date, not a citizen of some other country.

While there was, at one brief time, divergent views on whether or not jus soli was
a mode of acquiring citizenship, the 1935 Constitution brought to an end to any
such link with common law, by adopting, once and for all, jus sanguinis or blood
relationship as being the basis of Filipino citizenship -

"Section 1, Article III, 1935 Constitution. The following are citizens of the
Philippines -

"(1) Those who are citizens of the Philippine Islands at the time of the
adoption of this Constitution

"(2) Those born in the Philippines Islands of foreign parents who, before
the adoption of this Constitution, had been elected to public office in the
Philippine Islands.

"(3) Those whose fathers are citizens of the Philippines.

"(4) Those whose mothers are citizens of the Philippines and upon
reaching the age of majority, elect Philippine citizenship.

"(5) Those who are naturalized in accordance with law."

Subsection (4), Article III, of the 1935 Constitution, taken together with existing
civil law provisions at the time, which provided that women would automatically
lose their Filipino citizenship and acquire that of their foreign husbands, resulted
in discriminatory situations that effectively incapacitated the women from
transmitting their Filipino citizenship to their legitimate children and required
illegitimate children of Filipino mothers to still elect Filipino citizenship upon
reaching the age of majority. Seeking to correct this anomaly, as well as fully
cognizant of the newly found status of Filipino women as equals to men, the
framers of the 1973 Constitution crafted the provisions of the new Constitution on
citizenship to reflect such concerns -

"Section 1, Article III, 1973 Constitution - The following are citizens of the
Philippines:

"(1) Those who are citizens of the Philippines at the time of the adoption of
this Constitution.

Page 191 of 349

 "(2) Those whose fathers or mothers are citizens of the Philippines.

"(3) Those who elect Philippine citizenship pursuant to the provisions of the
Constitution of nineteen hundred and thirty-five.

"(4) Those who are naturalized in accordance with law."

For good measure, Section 2 of the same article also further provided that –

"A female citizen of the Philippines who marries an alien retains her
Philippine citizenship, unless by her act or omission she is deemed, under
the law to have renounced her citizenship."

The 1987 Constitution generally adopted the provisions of the 1973 Constitution,
except for subsection (3) thereof that aimed to correct the irregular situation
generated by the questionable proviso in the 1935 Constitution.

Section I, Article IV, 1987 Constitution now provides:

"The following are citizens of the Philippines:

"(1) Those who are citizens of the Philippines at the time of the
adoption of this Constitution.

"(2) Those whose fathers or mothers are citizens of the Philippines.

"(3) Those born before January 17, 1973 of Filipino mothers, who
elect Philippine citizenship upon reaching the age of majority; and

"(4) Those who are naturalized in accordance with law."

The Case Of FPJ

Section 2, Article VII, of the 1987 Constitution expresses:

"No person may be elected President unless he is a natural-born citizen of

the Philippines, a registered voter, able to read and write, at least forty
years of age on the day of the election, and a resident of the Philippines for
at least ten years immediately preceding such election."

Page 192 of 349

The term "natural-born citizens," is defined to include "those who are citizens of
the Philippines from birth without having to perform any act to acquire or perfect
their Philippine citizenship."27

The date, month and year of birth of FPJ appeared to be 20 August 1939 during
the regime of the 1935 Constitution. Through its history, four modes of acquiring
citizenship - naturalization, jus soli, res judicata and jus sanguinis28 – had been in
vogue. Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a
"natural-born" citizen of the Philippines. Jus soli, per Roa vs. Collector of
Customs29 (1912), did not last long. With the adoption of the 1935 Constitution
and the reversal of Roa in Tan Chong vs. Secretary of Labor30 (1947), jus
sanguinis or blood relationship would now become the primary basis of
citizenship by birth.

Documentary evidence adduced by petitioner would tend to indicate that the

earliest established direct ascendant of FPJ was his paternal grandfather
Lorenzo Pou, married to Marta Reyes, the father of Allan F. Poe. While the
record of birth of Lorenzo Pou had not been presented in evidence, his death
certificate, however, identified him to be a Filipino, a resident of San Carlos,
Pangasinan, and 84 years old at the time of his death on 11 September 1954.
The certificate of birth of the father of FPJ, Allan F. Poe, showed that he was
born on 17 May 1915 to an Español father, Lorenzo Pou, and a mestiza Español
mother, Marta Reyes. Introduced by petitioner was an "uncertified" copy of a
supposed certificate of the alleged marriage of Allan F. Poe and Paulita Gomez
on 05 July 1936. The marriage certificate of Allan F. Poe and Bessie Kelley
reflected the date of their marriage to be on 16 September 1940. In the same
certificate, Allan F. Poe was stated to be twenty-five years old, unmarried, and a
Filipino citizen, and Bessie Kelley to be twenty-two years old, unmarried, and an
American citizen. The birth certificate of FPJ, would disclose that he was born on
20 August 1939 to Allan F. Poe, a Filipino, twenty-four years old, married to
Bessie Kelly, an American citizen, twenty-one years old and married.

Considering the reservations made by the parties on the veracity of some of the
entries on the birth certificate of respondent and the marriage certificate of his
parents, the only conclusions that could be drawn with some degree of certainty
from the documents would be that -

1. The parents of FPJ were Allan F. Poe and Bessie Kelley;

2. FPJ was born to them on 20 August 1939;

Page 193 of 349

 3. Allan F. Poe and Bessie Kelley were married to each other on 16
September, 1940;

4. The father of Allan F. Poe was Lorenzo Poe; and

5. At the time of his death on 11 September 1954, Lorenzo Poe was 84

years old.

Would the above facts be sufficient or insufficient to establish the fact that FPJ is
a natural-born Filipino citizen? The marriage certificate of Allan F. Poe and
Bessie Kelley, the birth certificate of FPJ, and the death certificate of Lorenzo
Pou are documents of public record in the custody of a public officer. The
documents have been submitted in evidence by both contending parties during
the proceedings before the COMELEC.

The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3"
for respondent. The marriage certificate of Allan F. Poe to Bessie Kelley was
submitted as Exhibit "21" for respondent. The death certificate of Lorenzo Pou
was submitted by respondent as his Exhibit "5." While the last two documents
were submitted in evidence for respondent, the admissibility thereof, particularly
in reference to the facts which they purported to show, i.e., the marriage
certificate in relation to the date of marriage of Allan F. Poe to Bessie Kelley and
the death certificate relative to the death of Lorenzo Pou on 11 September 1954
in San Carlos, Pangasinan, were all admitted by petitioner, who had utilized
those material statements in his argument. All three documents were certified
true copies of the originals.

Section 3, Rule 130, Rules of Court states that -

"Original document must be produced; exceptions. - When the subject of

inquiry is the contents of a document, no evidence shall be admissible
other than the original document itself, except in the following cases:

"x x x           x x x           x x x

"(d) When the original is a public record in the custody of a public office or
is recorded in a public office."

Being public documents, the death certificate of Lorenzo Pou, the marriage
certificate of Allan F. Poe and Bessie Kelly, and the birth certificate of FPJ,
constitute prima facie proof of their contents. Section 44, Rule 130, of the Rules
of Court provides:

Page 194 of 349

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

The trustworthiness of public documents and the value given to the entries made
therein could be grounded on 1) the sense of official duty in the preparation of
the statement made, 2) the penalty which is usually affixed to a breach of that
duty, 3) the routine and disinterested origin of most such statements, and 4) the
publicity of record which makes more likely the prior exposure of such errors as
might have occurred.31

The death certificate of Lorenzo Pou would indicate that he died on 11

September 1954, at the age of 84 years, in San Carlos, Pangasinan. It could thus
be assumed that Lorenzo Pou was born sometime in the year 1870 when the
Philippines was still a colony of Spain. Petitioner would argue that Lorenzo Pou
was not in the Philippines during the crucial period of from 1898 to 1902
considering that there was no existing record about such fact in the Records
Management and Archives Office. Petitioner, however, likewise failed to show
that Lorenzo Pou was at any other place during the same period. In his death
certificate, the residence of Lorenzo Pou was stated to be San Carlos,
Pangasinan. In the absence of any evidence to the contrary, it should be sound
to conclude, or at least to presume, that the place of residence of a person at the
time of his death was also his residence before death. It would be extremely
doubtful if the Records Management and Archives Office would have had
complete records of all residents of the Philippines from 1898 to 1902.

Proof of Paternity and Filiation

Under Civil Law.

Petitioner submits, in any case, that in establishing filiation (relationship or civil

status of the child to the father [or mother]) or paternity (relationship or civil status
of the father to the child) of an illegitimate child, FPJ evidently being an
illegitimate son according to petitioner, the mandatory rules under civil law must
be used.

Under the Civil Code of Spain, which was in force in the Philippines from 08
December 1889 up until the day prior to 30 August 1950 when the Civil Code of
the Philippines took effect, acknowledgment was required to establish filiation or
paternity. Acknowledgment was either judicial (compulsory) or voluntary. Judicial
or compulsory acknowledgment was possible only if done during the lifetime of

Page 195 of 349

the putative parent; voluntary acknowledgment could only be had in a record of
birth, a will, or a public document.32 Complementary to the new code was Act No.
3753 or the Civil Registry Law expressing in Section 5 thereof, that -

"In case of an illegitimate child, the birth certificate shall be signed and
sworn to jointly by the parents of the infant or only by the mother if the
father refuses. In the latter case, it shall not be permissible to state or
reveal in the document the name of the father who refuses to acknowledge
the child, or to give therein any information by which such father could be
identified."

In order that the birth certificate could then be utilized to prove voluntary
acknowledgment of filiation or paternity, the certificate was required to be signed
or sworn to by the father. The failure of such requirement rendered the same
useless as being an authoritative document of recognition.33 In Mendoza vs.
Mella,34 the Court ruled -

"Since Rodolfo was born in 1935, after the registry law was enacted, the
question here really is whether or not his birth certificate (Exhibit 1), which
is merely a certified copy of the registry record, may be relied upon as
sufficient proof of his having been voluntarily recognized. No such reliance,
in our judgment, may be placed upon it. While it contains the names of
both parents, there is no showing that they signed the original, let alone
swore to its contents as required in Section 5 of Act No. 3753. For all that
might have happened, it was not even they or either of them who furnished
the data to be entered in the civil register. Petitioners say that in any event
the birth certificate is in the nature of a public document wherein voluntary
recognition of a natural child may also be made, according to the same
Article 131. True enough, but in such a case, there must be a clear
statement in the document that the parent recognizes the child as his or
her own."

In the birth certificate of respondent FPJ, presented by both parties, nowhere in

the document was the signature of Allan F. Poe found. There being no will
apparently executed, or at least shown to have been executed, by decedent
Allan F. Poe, the only other proof of voluntary recognition remained to be "some
other public document." In Pareja vs. Pareja,35 this Court defined what could
constitute such a document as proof of voluntary acknowledgment:

"Under the Spanish Civil Code there are two classes of public documents,
those executed by private individuals which must be authenticated by
notaries, and those issued by competent public officials by reason of their

Page 196 of 349

 office. The public document pointed out in Article 131 as one of the means
by which recognition may be made belongs to the first class."

Let us leave it at that for the moment.

The 1950 Civil Code categorized the acknowledgment or recognition of

illegitimate children into voluntary, legal or compulsory. Voluntary recognition was
required to be expressedly made in a record of birth, a will, a statement before a
court of record or in any authentic writing. Legal acknowledgment took place in
favor of full blood brothers and sisters of an illegitimate child who was recognized
or judicially declared as natural. Compulsory acknowledgment could be
demanded generally in cases when the child had in his favor any evidence to
prove filiation. Unlike an action to claim legitimacy which would last during the
lifetime of the child, and might pass exceptionally to the heirs of the child, an
action to claim acknowledgment, however, could only be brought during the
lifetime of the presumed parent.

Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic
writing," so as to be an authentic writing for purposes of voluntary recognition,
simply as being a genuine or indubitable writing of the father. The term would
include a public instrument (one duly acknowledged before a notary public or
other competent official) or a private writing admitted by the father to be his.

The Family Code has further liberalized the rules; Article 172, Article 173, and
Article 175 provide:

"Art. 172. The filiation of legitimate children is established by any of the

following:

"(1) The record of birth appearing in the civil register or a final judgment; or

"(2) An admission of legitimate filiation in a public document or a private

handwritten instrument and signed by the parent concerned.

"In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:

"(1) The open and continuous possession of the status of a legitimate

child; or

"(2) Any other means allowed by the Rules of Court and special laws.

Page 197 of 349

 "Art. 173. The action to claim legitimacy may be brought by the child during
his or her lifetime and shall be transmitted to the heirs should the child die
during minority or in a state of insanity. In these cases, the heirs shall have
a period of five years within which to institute the action.

"The action already commenced by the child shall survive notwithstanding

the death of either or both of the parties.

"x x x           x x x           x x x.

"Art. 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same, evidence as legitimate children.

"The action must be brought within the same period specified in Article
173, except when the action is based on the second paragraph of Article
172, in which case the action may be brought during the lifetime of the
alleged parent."

The provisions of the Family Code are retroactively applied; Article 256 of the
code reads:

"Art. 256. This Code shall have retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in accordance with the Civil
Code or other laws."

Thus, in Vda. de Sy-Quia vs. Court of Appeals,36 the Court has ruled:

"We hold that whether Jose was a voluntarily recognized natural child
should be decided under Article 278 of the Civil Code of the Philippines.
Article 2260 of that Code provides that 'the voluntary recognition of a
natural child shall take place according to this Code, even if the child was
born before the effectivity of this body of laws' or before August 30, 1950.
Hence, Article 278 may be given retroactive effect."

It should be apparent that the growing trend to liberalize the acknowledgment or

recognition of illegitimate children is an attempt to break away from the traditional
idea of keeping well apart legitimate and non-legitimate relationships within the
family in favor of the greater interest and welfare of the child. The provisions are
intended to merely govern the private and personal affairs of the family. There is
little, if any, to indicate that the legitimate or illegitimate civil status of the
individual would also affect his political rights or, in general, his relationship to the
State. While, indeed, provisions on "citizenship" could be found in the Civil Code,

Page 198 of 349

such provisions must be taken in the context of private relations, the domain of
civil law; particularly -

"Civil Law is that branch of law which has for its double purpose the
organization of the family and the regulation of property. It has thus [been]
defined as the mass of precepts which determine and regulate the
relations of assistance, authority and obedience among members of a
family, and those which exist among members of a society for the
protection of private interests."37

In Yañez de Barnuevo vs. Fuster,38 the Court has held:

"In accordance with Article 9 of the Civil Code of Spain, x x x the laws
relating to family rights and duties, or to the status, condition and legal
capacity of persons, govern Spaniards although they reside in a foreign
country; that, in consequence, 'all questions of a civil nature, such as those
dealing with the validity or nullity of the matrimonial bond, the domicile of
the husband and wife, their support, as between them, the separation of
their properties, the rules governing property, marital authority, division of
conjugal property, the classification of their property, legal causes for
divorce, the extent of the latter, the authority to decree it, and, in general,
the civil effects of marriage and divorce upon the persons and properties of
the spouses, are questions that are governed exclusively by the national
law of the husband and wife."

The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in

Article 15 of the Civil Code, stating that -

"Laws relating to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines, even
though living abroad" -

that explains the need to incorporate in the code a reiteration of the

Constitutional provisions on citizenship. Similarly, citizenship is significant in civil
relationships found in different parts of the Civil Code,39 such as on successional
rights and family relations.40 In adoption, for instance, an adopted child would be
considered the child of his adoptive parents and accorded the same rights as
their legitimate child but such legal fiction extended only to define his rights under
civil law41 and not his political status.

Civil law provisions point to an obvious bias against illegitimacy. This

discriminatory attitude may be traced to the Spanish family and property laws,

Page 199 of 349

which, while defining proprietary and successional rights of members of the
family, provided distinctions in the rights of legitimate and illegitimate children. In
the monarchial set-up of old Spain, the distribution and inheritance of titles and
wealth were strictly according to bloodlines and the concern to keep these
bloodlines uncontaminated by foreign blood was paramount.

These distinctions between legitimacy and illegitimacy were codified in the

Spanish Civil Code, and the invidious discrimination survived when the Spanish
Civil Code became the primary source of our own Civil Code. Such distinction,
however, remains and should remain only in the sphere of civil law and not
unduly impede or impinge on the domain of political law.

The proof of filiation or paternity for purposes of determining his citizenship status
should thus be deemed independent from and not inextricably tied up with that
prescribed for civil law purposes. The Civil Code or Family Code provisions on
proof of filiation or paternity, although good law, do not have preclusive effects on
matters alien to personal and family relations. The ordinary rules on evidence
could well and should govern. For instance, the matter about pedigree is not
necessarily precluded from being applicable by the Civil Code or Family Code
provisions.

Section 39, Rule 130, of the Rules of Court provides -

"Act or Declaration about pedigree. The act or declaration of a person

deceased, or unable to testify, in respect to the pedigree of another person
related to him by birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship between the two
persons is shown by evidence other than such act or declaration. The word
`pedigree’ includes relationship, family genealogy, birth, marriage, death,
the dates when and the places where these facts occurred, and the names
of the relatives. It embraces also facts of family history intimately
connected with pedigree."

For the above rule to apply, it would be necessary that (a) the declarant is
already dead or unable to testify, (b) the pedigree of a person must be at issue,
(c) the declarant must be a relative of the person whose pedigree is in question,
(d) declaration must be made before the controversy has occurred, and (e) the
relationship between the declarant and the person whose pedigree is in question
must be shown by evidence other than such act or declaration.

Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of
Bessie Kelley Poe submitted as Exhibit 20 before the COMELEC, might be

Page 200 of 349

accepted to prove the acts of Allan F. Poe, recognizing his own paternal
relationship with FPJ, i.e, living together with Bessie Kelley and his children
(including respondent FPJ) in one house, and as one family -

"I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing
in Stockton, California, U.S.A., after being sworn in accordance with law do
hereby declare that:

"1. I am the sister of the late Bessie Kelley Poe.

"2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.

"3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe,
more popularly known in the Philippines as `Fernando Poe, Jr.,’ or `FPJ’.

"4. Ronald Allan Poe `FPJ’ was born on August 20, 1939 at St. Luke's
Hospital, Magdalena Street, Manila.

"x x x           x x x           x x x

"7. Fernando Poe Sr., and my sister Bessie, met and became engaged
while they were students at the University of the Philippines in 1936. I was
also introduced to Fernando Poe, Sr., by my sister that same year.

"8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938.

"9. Fernando Poe, Sr., my sister Bessie and their first three children,
Elizabeth, Ronald, Allan and Fernando II, and myself lived together with
our mother at our family's house on Dakota St. (now Jorge Bocobo St.),
Malate until the liberation of Manila in 1945, except for some months
between 1943-1944.

"10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4)
more children after Ronald Allan Poe.

"x x x           x x x           x x x

"18. I am executing this Declaration to attest to the fact that my nephew,

Ronald Allan Poe is a natural born Filipino, and that he is the legitimate
child of Fernando Poe, Sr.

Page 201 of 349

 "Done in City of Stockton, California, U.S.A., this 12th day of January
2004.

Ruby Kelley Mangahas Declarant DNA Testing

In case proof of filiation or paternity would be unlikely to satisfactorily establish or

would be difficult to obtain, DNA testing, which examines genetic codes obtained
from body cells of the illegitimate child and any physical residue of the long dead
parent could be resorted to. A positive match would clear up filiation or paternity.
In Tijing vs. Court of Appeals,42 this Court has acknowledged the strong weight of DNA testing -

"Parentage will still be resolved using conventional methods unless we adopt the
modern and scientific ways available. Fortunately, we have now the facility and
expertise in using DNA test for identification and parentage testing. The
University of the Philippines Natural Science Research Institute (UP-NSRI) DNA
Analysis Laboratory has now the capability to conduct DNA typing using short
tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of
a child/person has two (2) copies, one copy from the mother and the other from
the father. The DNA from the mother, the alleged father and the child are
analyzed to establish parentage. Of course, being a novel scientific technique,
the use of DNA test as evidence is still open to challenge. Eventually, as the
appropriate case comes, courts should not hesitate to rule on the admissibility of
DNA evidence. For it was said, that courts should apply the results of science
when competently obtained in aid of situations presented, since to reject said
result is to deny progress."

Petitioner’s Argument For Jurisprudential Conclusiveness

Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could
not have transmitted his citizenship to respondent FPJ, the latter being an
illegitimate child. According to petitioner, prior to his marriage to Bessie Kelley,
Allan F. Poe, on July 5, 1936, contracted marriage with a certain Paulita Gomez,
making his subsequent marriage to Bessie Kelley bigamous and respondent FPJ
an illegitimate child. The veracity of the supposed certificate of marriage between
Allan F. Poe and Paulita Gomez could be most doubtful at best. But the
documentary evidence introduced by no less than respondent himself, consisting
of a birth certificate of respondent and a marriage certificate of his parents
showed that FPJ was born on 20 August 1939 to a Filipino father and an
American mother who were married to each other a year later, or on 16
September 1940. Birth to unmarried parents would make FPJ an illegitimate
child. Petitioner contended that as an illegitimate child, FPJ so followed the
citizenship of his mother, Bessie Kelley, an American citizen, basing his stand on

Page 202 of 349

the ruling of this Court in Morano vs. Vivo, 43 citing Chiongbian vs. de Leo44 and
Serra vs. Republic.45

On the above score, the disquisition made by amicus curiae Joaquin G. Bernas,
SJ, is most convincing; he states -

"We must analyze these cases and ask what the lis mota was in each of
them. If the pronouncement of the Court on jus sanguinis was on the lis
mota, the pronouncement would be a decision constituting doctrine under
the rule of stare decisis. But if the pronouncement was irrelevant to the lis
mota, the pronouncement would not be a decision but a mere obiter dictum
which did not establish doctrine. I therefore invite the Court to look closely
into these cases.

"First, Morano vs. Vivo. The case was not about an illegitimate child of a
Filipino father. It was about a stepson of a Filipino, a stepson who was the
child of a Chinese mother and a Chinese father. The issue was whether
the stepson followed the naturalization of the stepfather. Nothing about jus
sanguinis there. The stepson did not have the blood of the naturalized
stepfather.

"Second, Chiongbian vs. de Leon. This case was not about the illegitimate
son of a Filipino father. It was about a legitimate son of a father who had
become Filipino by election to public office before the 1935 Constitution
pursuant to Article IV, Section 1(2) of the 1935 Constitution. No one was
illegitimate here.

"Third, Serra vs. Republic. The case was not about the illegitimate son of a
Filipino father. Serra was an illegitimate child of a Chinese father and a
Filipino mother. The issue was whether one who was already a Filipino
because of his mother who still needed to be naturalized. There is nothing
there about invidious jus sanguinis.

"Finally, Paa vs. Chan.46 This is a more complicated case. The case was
about the citizenship of Quintin Chan who was the son of Leoncio Chan.
Quintin Chan claimed that his father, Leoncio, was the illegitimate son of a
Chinese father and a Filipino mother. Quintin therefore argued that he got
his citizenship from Leoncio, his father. But the Supreme Court said that
there was no valid proof that Leoncio was in fact the son of a Filipina
mother. The Court therefore concluded that Leoncio was not Filipino. If
Leoncio was not Filipino, neither was his son Quintin. Quintin therefore
was not only not a natural-born Filipino but was not even a Filipino.

Page 203 of 349

 "The Court should have stopped there. But instead it followed with an
obiter dictum. The Court said obiter that even if Leoncio, Quintin's father,
were Filipino, Quintin would not be Filipino because Quintin was
illegitimate. This statement about Quintin, based on a contrary to fact
assumption, was absolutely unnecessary for the case. x x x It was obiter
dictum, pure and simple, simply repeating the obiter dictum in Morano vs.
Vivo.

"x x x           x x x           x x x

"Aside from the fact that such a pronouncement would have no textual
foundation in the Constitution, it would also violate the equal protection
clause of the Constitution not once but twice. First, it would make an
illegitimate distinction between a legitimate child and an illegitimate child,
and second, it would make an illegitimate distinction between the
illegitimate child of a Filipino father and the illegitimate child of a Filipino
mother.

"The doctrine on constitutionally allowable distinctions was established

long ago by People vs. Cayat.47 I would grant that the distinction between
legitimate children and illegitimate children rests on real differences. x x x
But real differences alone do not justify invidious distinction. Real
differences may justify distinction for one purpose but not for another
purpose.

"x x x What is the relevance of legitimacy or illegitimacy to elective public

service? What possible state interest can there be for disqualifying an
illegitimate child from becoming a public officer. It was not the fault of the
child that his parents had illicit liaison. Why deprive the child of the fullness
of political rights for no fault of his own? To disqualify an illegitimate child
from holding an important public office is to punish him for the indiscretion
of his parents. There is neither justice nor rationality in that. And if there is
neither justice nor rationality in the distinction, then the distinction
transgresses the equal protection clause and must be reprobated."

The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this
Court), Professor Ruben Balane and Dean Martin Magallona, at bottom, have
expressed similar views. The thesis of petitioner, unfortunately hinging solely on
pure obiter dicta, should indeed fail.

Where jurisprudence regarded an illegitimate child as taking after the citizenship

of its mother, it did so for the benefit the child. It was to ensure a Filipino

Page 204 of 349

nationality for the illegitimate child of an alien father in line with the assumption
that the mother had custody, would exercise parental authority and had the duty
to support her illegitimate child. It was to help the child, not to prejudice or
discriminate against him.

The fact of the matter – perhaps the most significant consideration – is that the
1935 Constitution, the fundamental law prevailing on the day, month and year of
birth of respondent FPJ, can never be more explicit than it is. Providing neither
conditions nor distinctions, the Constitution states that among the citizens of the
Philippines are "those whose fathers are citizens of the Philippines." There utterly
is no cogent justification to prescribe conditions or distinctions where there
clearly are none provided.

In Sum –

(1) The Court, in the exercise of its power of judicial review, possesses
jurisdiction over the petition in G. R. No. 161824, filed under Rule 64, in
relation to Rule 65, of the Revised Rules of Civil Procedure. G.R. No.
161824 assails the resolution of the COMELEC for alleged grave abuse of
discretion in dismissing, for lack of merit, the petition in SPA No. 04-003
which has prayed for the disqualification of respondent FPJ from running
for the position of President in the 10th May 2004 national elections on the
contention that FPJ has committed material representation in his certificate
of candidacy by representing himself to be a natural-born citizen of the
Philippines.

(2) The Court must dismiss, for lack of jurisdiction and prematurity, the
petitions in G. R. No. 161434 and No. 161634 both having been directly
elevated to this Court in the latter’s capacity as the only tribunal to resolve
a presidential and vice-presidential election contest under the Constitution.
Evidently, the primary jurisdiction of the Court can directly be invoked only
after, not before, the elections are held.

(3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion

has been committed by the COMELEC, it is necessary to take on the
matter of whether or not respondent FPJ is a natural-born citizen, which, in
turn, depended on whether or not the father of respondent, Allan F. Poe,
would have himself been a Filipino citizen and, in the affirmative, whether
or not the alleged illegitimacy of respondent prevents him from taking after
the Filipino citizenship of his putative father. Any conclusion on the Filipino
citizenship of Lorenzo Pou could only be drawn from the presumption that
having died in 1954 at 84 years old, Lorenzo would have been born

Page 205 of 349

 sometime in the year 1870, when the Philippines was under Spanish rule,
and that San Carlos, Pangasinan, his place of residence upon his death in
1954, in the absence of any other evidence, could have well been his
place of residence before death, such that Lorenzo Pou would have
benefited from the "en masse Filipinization" that the Philippine Bill had
effected in 1902. That citizenship (of Lorenzo Pou), if acquired, would
thereby extend to his son, Allan F. Poe, father of respondent FPJ. The
1935 Constitution, during which regime respondent FPJ has seen first
light, confers citizenship to all persons whose fathers are Filipino citizens
regardless of whether such children are legitimate or illegitimate.

(4) But while the totality of the evidence may not establish conclusively that
respondent FPJ is a natural-born citizen of the Philippines, the evidence on
hand still would preponderate in his favor enough to hold that he cannot be
held guilty of having made a material misrepresentation in his certificate of
candidacy in violation of Section 78, in relation to Section 74, of the
Omnibus Election Code. Petitioner has utterly failed to substantiate his
case before the Court, notwithstanding the ample opportunity given to the
parties to present their position and evidence, and to prove whether or not
there has been material misrepresentation, which, as so ruled in
Romualdez-Marcos vs. COMELEC,48 must not only be material, but also
deliberate and willful.

WHEREFORE, the Court RESOLVES to DISMISS –

1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B.

Desiderio, Jr., Petitioners, versus Commission on Elections, Ronald Allan
Kelley Poe (a.k.a. "Fernando Poe, Jr.,) and Victorino X. Fornier,
Respondents," and G. R. No. 161634, entitled "Zoilo Antonio Velez,
Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.,
Respondent," for want of jurisdiction.

2. G. R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon.

Commission on Elections and Ronald Allan Kelley Poe, also known as
Fernando Poe, Jr.," for failure to show grave abuse of discretion on the
part of respondent Commission on Elections in dismissing the petition in
SPA No. 04-003.

Page 206 of 349

G.R. No. 181258               March 18, 2010
BEN-HUR NEPOMUCENO, Petitioner, 
vs.
ARHBENCEL ANN LOPEZ, represented by her mother ARACELI
LOPEZ, Respondent.
DECISION
CARPIO MORALES, J.:

Respondent Arhbencel Ann Lopez (Arhbencel), represented by her mother

Araceli Lopez (Araceli), filed a Complaint1 with the Regional Trial Court (RTC) of
Caloocan City for recognition and support against Ben-Hur Nepomuceno
(petitioner).

Born on June 8, 1999, Arhbencel claimed to have been begotten out of an

extramarital affair of petitioner with Araceli; that petitioner refused to affix his
signature on her Certificate of Birth; and that, by a handwritten note dated August
7, 1999, petitioner nevertheless obligated himself to give her financial support in
the amount of ₱1,500 on the 15th and 30th days of each month beginning
August 15, 1999.

Arguing that her filiation to petitioner was established by the handwritten note,
Arhbencel prayed that petitioner be ordered to: (1) recognize her as his child, (2)
give her support pendente lite in the increased amount of ₱8,000 a month, and
(3) give her adequate monthly financial support until she reaches the age of
majority.

Petitioner countered that Araceli had not proven that he was the father of
Arhbencel; and that he was only forced to execute the handwritten note on
account of threats coming from the National People’s Army.2

By Order of July 4, 2001,3 Branch 130 of the Caloocan RTC, on the basis of

petitioner’s handwritten note which it treated as "contractual support" since the
issue of Arhbencel’s filiation had yet to be determined during the hearing on the
merits, granted Arhbencel’s prayer for support pendente lite in the amount of
₱3,000 a month.

After Arhbencel rested her case, petitioner filed a demurrer to evidence which the
trial court granted by Order dated June 7, 2006,4 whereupon the case was
dismissed for insufficiency of evidence.

Page 207 of 349

The trial court held that, among other things, Arhbencel’s Certificate of Birth was
not prima facie evidence of her filiation to petitioner as it did not bear petitioner’s
signature; that petitioner’s handwritten undertaking to provide support did not
contain a categorical acknowledgment that Arhbencel is his child; and that there
was no showing that petitioner performed any overt act of acknowledgment of
Arhbencel as his illegitimate child after the execution of the note.

On appeal by Arhbencel, the Court of Appeals, by Decision of July 20,

2007,5 reversed the trial court’s decision, declared Arhbencel to be petitioner’s
illegitimate daughter and accordingly ordered petitioner to give Arhbencel
financial support in the increased amount of ₱4,000 every 15th and 30th days of
the month, or a total of ₱8,000 a month.

The appellate court found that from petitioner’s payment of Araceli’s hospital bills
when she gave birth to Arhbencel and his subsequent commitment to provide
monthly financial support, the only logical conclusion to be drawn was that he
was Arhbencel’s father; that petitioner merely acted in bad faith in omitting a
statement of paternity in his handwritten undertaking to provide financial support;
and that the amount of ₱8,000 a month was reasonable for Arhbencel’s
subsistence and not burdensome for petitioner in view of his income.

His Motion for Reconsideration having been denied by Resolution dated January
3, 2008,6 petitioner comes before this Court through the present Petition for
Review on Certiorari.7

Petitioner contends that nowhere in the documentary evidence presented by

Araceli is an explicit statement made by him that he is the father of Arhbencel;
that absent recognition or acknowledgment, illegitimate children are not entitled
to support from the putative parent; that the supposed payment made by him of
Araceli’s hospital bills was neither alleged in the complaint nor proven during the
trial; and that Arhbencel’s claim of paternity and filiation was not established by
clear and convincing evidence.

Arhbencel avers in her Comment that petitioner raises questions of fact which the
appellate court had already addressed, along with the issues raised in the
present petition.8

The petition is impressed with merit.

The relevant provisions of the Family Code9 that treat of the right to support are
Articles 194 to 196, thus:

Page 208 of 349

Article 194. Support compromises everything indispensable for sustenance,
dwelling, clothing, medical attendance, education and transportation, in keeping
with the financial capacity of the family.
1awph!1

The education of the person entitled to be supported referred to in the preceding

paragraph shall include his schooling or training for some profession, trade or
vocation, even beyond the age of majority. Transportation shall include expenses
in going to and from school, or to and from place of work.

Article 195. Subject to the provisions of the succeeding articles, the following
are obliged to support each other to the whole extent set forth in the preceding
article:

1. The spouses;

2. Legitimate ascendants and descendants;

3. Parents and their legitimate children and the legitimate and illegitimate
children of the latter;

4. Parents and their illegitimate children and the legitimate and illegitimate

children of the latter; and

5. Legitimate brothers and sisters, whether of the full or half-blood.

Article 196. Brothers and sisters not legitimately related, whether of the full or
half-blood, are likewise bound to support each other to the full extent set forth in
Article 194, except only when the need for support of the brother or sister, being
of age, is due to a cause imputable to the claimant's fault or negligence.
(emphasis and underscoring supplied)

Arhbencel’s demand for support, being based on her claim of filiation to petitioner
as his illegitimate daughter, falls under Article 195(4). As such, her entitlement to
support from petitioner is dependent on the determination of her filiation.

Herrera v. Alba10 summarizes the laws, rules, and jurisprudence on establishing

filiation, discoursing in relevant part as follows:

Laws, Rules, and Jurisprudence

Establishing Filiation

Page 209 of 349

The relevant provisions of the Family Code provide as follows:

ART. 175. Illegitimate children may establish their illegitimate filiation in the same
way and on the same evidence as legitimate children.

xxxx

ART. 172. The filiation of legitimate children is established by any of the

following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private

handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved
by:

(1) The open and continuous possession of the status of a legitimate child;
or

(2) Any other means allowed by the Rules of Court and special laws.

The Rules on Evidence include provisions on pedigree. The relevant sections of

Rule 130 provide:

SEC. 39. Act or declaration about pedigree. — The act or declaration of a person
deceased, or unable to testify, in respect to the pedigree of another person
related to him by birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship between the two persons is
shown by evidence other than such act or declaration. The word "pedigree"
includes relationship, family genealogy, birth, marriage, death, the dates when
and the places where these facts occurred, and the names of the relatives. It
embraces also facts of family history intimately connected with pedigree.

SEC. 40. Family reputation or tradition regarding pedigree. — The reputation or

tradition existing in a family previous to the controversy, in respect to the
pedigree of any one of its members, may be received in evidence if the witness
testifying thereon be also a member of the family, either by consanguinity or
affinity. Entries in family bibles or other family books or charts, engraving on
rings, family portraits and the like, may be received as evidence of pedigree.

Page 210 of 349

This Court's rulings further specify what incriminating acts are acceptable as
evidence to establish filiation. In Pe Lim v. CA, a case petitioner often cites, we
stated that the issue of paternity still has to be resolved by such conventional
evidence as the relevant incriminating verbal and written acts by the putative
father. Under Article 278 of the New Civil Code, voluntary recognition by a parent
shall be made in the record of birth, a will, a statement before a court of record,
or in any authentic writing. To be effective, the claim of filiation must be made by
the putative father himself and the writing must be the writing of the putative
father. A notarial agreement to support a child whose filiation is admitted by the
putative father was considered acceptable evidence. Letters to the mother
vowing to be a good father to the child and pictures of the putative father
cuddling the child on various occasions, together with the certificate of live birth,
proved filiation. However, a student permanent record, a written consent to a
father's operation, or a marriage contract where the putative father gave consent,
cannot be taken as authentic writing. Standing alone, neither a certificate of
baptism nor family pictures are sufficient to establish filiation. (emphasis and
underscoring supplied)

In the present case, Arhbencel relies, in the main, on the handwritten note
executed by petitioner which reads:

Manila, Aug. 7, 1999

I, Ben-Hur C. Nepomuceno, hereby undertake to give and provide financial

support in the amount of ₱1,500.00 every fifteen and thirtieth day of each month
for a total of ₱3,000.00 a month starting Aug. 15, 1999, to Ahrbencel Ann Lopez,
presently in the custody of her mother Araceli Lopez without the necessity of
demand, subject to adjustment later depending on the needs of the child and my
income.

The abovequoted note does not contain any statement whatsoever about
Arhbencel’s filiation to petitioner. It is, therefore, not within the ambit of Article
172(2) vis-à-vis Article 175 of the Family Code which admits as competent
evidence of illegitimate filiation an admission of filiation in a private handwritten
instrument signed by the parent concerned.

The note cannot also be accorded the same weight as the notarial agreement to
support the child referred to in Herrera. For it is not even notarized. And Herrera
instructs that the notarial agreement must be accompanied by the putative
father’s admission of filiation to be an acceptable evidence of filiation. Here,
however, not only has petitioner not admitted filiation through contemporaneous
actions. He has consistently denied it.

Page 211 of 349

The only other documentary evidence submitted by Arhbencel, a copy of her
Certificate of Birth,11 has no probative value to establish filiation to petitioner, the
latter not having signed the same.

At bottom, all that Arhbencel really has is petitioner’s handwritten undertaking to

provide financial support to her which, without more, fails to establish her claim of
filiation. The Court is mindful that the best interests of the child in cases involving
paternity and filiation should be advanced. It is, however, just as mindful of the
disturbance that unfounded paternity suits cause to the privacy and peace of the
putative father’s legitimate family.

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

20, 2007 is SET ASIDE. The Order dated June 7, 2006 of Branch 130 of the
Caloocan City RTC dismissing the complaint for insufficiency of evidence is
REINSTATED.

Page 212 of 349

G.R. No. 124853 February 24, 1998
FRANCISCO L. JISON, petitioner, 
vs.
COURT OF APPEALS and MONINA JISON, respondents.
DAVIDE, JR., J.:

This is a petition for review under Rule 45 of the Rules of Court of the 27 April 1995
decision of the Court of Appeals (CA) in CA-G.R. CV No. 32860 1 which reversed the
decision of Branch 24 of the Regional Trial Court (RTC) of Iloilo City in Civil Case No.
16373.2 The latter dismissed the complaint of private respondent Monina Jison
(hereafter MONINA) for recognition as an illegitimate child of petitioner Francisco
Jison (hereafter FRANCISCO).

In issue is whether or not public respondent Court of Appeals committed

reversible error, which, in this instance, necessitates an inquiry into the facts.
While as a general rule, factual issues are not within the province of this Court,
nevertheless, in light of the conflicting findings of facts of the trial court and the
Court of Appeals, this case falls under an exception to this rule? 3

In her complaint4 filed with the RTC on 13 March 1985, MONINA alleged that
FRANCISCO had been married to a certain Lilia Lopez Jison since 1940. At the
end of 1945 or the start of 1946, however, FRANCISCO impregnated Esperanza F.
Amolar (who was then employed as the nanny of FRANCISCO's daughter,
Lourdes). As a result, MONINA was born on 6 August 1946, in Dingle, Iloilo, and
since childhood, had enjoyed the continuous, implied recognition as an
illegitimate child of FRANCISCO by his acts and that of his family. MONINA
further alleged that FRANCISCO gave her support and spent for her education,
such that she obtained a Master's degree, became a certified public accountant
(CPA) and eventually, a Central Bank examiner. In view of FRANCISCO's refusal
to expressly recognize her, MONINA prayed for a judicial declaration of her
illegitimate status and that FRANCISCO support and treat her as such.

In his answer,5 FRANCISCO alleged that he could not have had sexual relations
with Esperanza Amolar during the period specified in the complaint as she had
ceased to be in his employ as early as 1944, and did not know of her whereabouts
since then; further, he never recognized MONINA, expressly or impliedly, as his
illegitimate child. As affirmative and special defenses, FRANCISCO contended
that MONINA had no right or cause of action against him and that her action was
barred by estoppel, laches and/or prescription. He thus prayed for dismissal of
the complaint and an award of damages due to the malicious filing of the
complaint.

After MONINA filed her reply, 6 pre-trial was conducted where the parties
stipulated on the following issues:

Page 213 of 349

 1. Did Francisco Jison have any sexual relation[s] with Esperanza Am[o]lar
about the end of 1945 or the start of 1946?

2. Is Monina Jison the recognized illegitimate daughter of Francisco Jison

by the latter's own acts and those of his family?

3. Is Monina Jison barred from instituting or prosecuting the present action

by estoppel, laches and/or prescription?

4. Damages.7

At trial on the merits, MONINA presented a total of eleven (11) witnesses, namely:
herself, Ruben Castellanes, Sr., Adela Casabuena, Arsenio Duatin, Zafiro
Ledesma, Danthea Lopez, Romeo Bilbao, Rudy Tiangson, Alfredo Baylosis,
Dominador Zavariz and Lope Amolar.

Ruben Castellanes, Sr., a 63-year old resident of Iloilo City, testified that he had
worked for FRANCISCO for a total of six (6) years at Nelly Garden, FRANCISCO's
Iloilo residence. Towards the end of the Japanese occupation, FRANCISCO's wife
suffered a miscarriage or abortion, thereby depriving FRANCISCO of consortium;
thereafter, FRANCISCO's wife managed a nightclub on the ground floor of Nelly
Garden which operated daily from 6:00 p.m. till 3:00 a.m. of the following day,
thereby allowing FRANCISCO free access to MONINA's mother, Esperanza
Amolar, who was nicknamed Pansay.

Adela Casabuena, a 61-year old farmer, testified that she served as the yaya
("nanny") of Lourdes from July 1946 up to February 1947. Although Pansay had
left Nelly Garden two (2) weeks before Adela started working for the Jisons,
Pansay returned sometime in September 1946, or about one month after she gave
birth to MONINA, to ask FRANCISCO for support. As a result, Pansay and Lilia
Jison, FRANCISCO's wife, quarreled in the living room, and in the course thereof,
Pansay claimed that FRANCISCO was the father of her baby. To which, Lilia
replied: "I did not tell you to make that baby so it is your fault." During the quarrel
which lasted from 10:30 till 11:00 a.m., FRANCISCO was supposedly inside the
house listening.

Arsenio Duatin, a 77-year old retired laborer, testified that from 1947 until 1977, he
worked as FRANCISCO's houseboy at the latter's house on 12th Street, Capitol
Subdivision, Bacolod City. Arsenio met MONINA in 1967, when Felipe Lagarto, the
bookkeeper at Nelly Garden, informed Arsenio that MONINA, FRANCISCO's
daughter, would arrive at Bacolod City with a letter of introduction from Lagarto.

Initially, Arsenio identified seven (7) black-and-white photographs (Exhs. X-5 to X-

11) of MONINA,8 and as he paid for the telephone bills, he likewise identified six
(6) telephone cards (Exhs. G to L). Arsenio then declared that when MONINA

Page 214 of 349

arrived in Bacolod City, she introduced herself to him as FRANCISCO's daughter.
She stayed at FRANCISCO's house, but when the latter and his wife would come
over, Arsenio would "conceal the presence of MONINA because Mrs. Jison did
not like to see her face." Once, Arsenio hid MONINA in the house of
FRANCISCO's sister, Mrs. Luisa Jison Alano, in Silay City; another time, at the
residence of FRANCISCO's cousin, Mrs. Concha Lopez Cuaycong. Finally,
Arsenio declared that the last time he saw MONINA was when she left for Manila,
after having finished her schooling at La Salle College in Bacolod City.

On re-direct and upon questions by the court, Arsenio disclosed that it was
FRANCISCO who instructed that MONINA be hidden whenever FRANCISCO and
his wife were around; that although FRANCISCO and MONINA saw each other at
the Bacolod house only once, they called each other "through long distance;"
and that MONINA addressed FRANCISCO as "Daddy" during their lone meeting at
the Bacolod house and were "affectionate" to each other. Arsenio likewise
declared that MONINA stayed at FRANCISCO's Bacolod house twice: first for a
month, then for about a week the second time. On both occasions, however,
FRANCISCO and his wife were abroad. Finally, Arsenio recalled that FRANCISCO
likewise bade Arsenio to treat MONINA like his (FRANCISCO's) other daughters.

The testimony of Zafiro Ledesma, a 74-year old banker and former mayor of Iloilo
City, initially touched on how he and his wife were related to FRANCISCO,
FRANCISCO's wife and MONINA. Zafiro first identified Exhibit R, a diagram of the
family trees of the Jison and Lopez families, which showed that former Vice-
President Fernando Lopez was the first cousin of FRANCISCO's wife, then told
the court that the family of Vice-President Lopez treated MONINA "very well
because she is considered a relative . . . by reputation, by actual perception."
Zafiro likewise identified Exhibits X-13 to X-18, photographs taken at the 14 April
1985 birthday celebration of Mrs. Fernando Lopez, which showed MONINA with
the former Vice-President and other members of the Lopez family.

Zafiro further testified that while MONINA lived with Mrs. Cuaycong, the latter
paid for some of MONINA's school needs and even asked MONINA to work in a
hospital owned by Mrs. Cuaycong; and that another first cousin of FRANCISCO's
wife, a certain Remedios Lopez Franco, likewise helped MONINA with her studies
and problems, and even attended MONINA's graduation in 1978 when she
obtained a masteral degree in Business Administration, as evidenced by another
photograph (Exh. X-12). Moreover, upon Remedios' recommendation, MONINA
was employed as a secretary at Merchant Financing Company, which was
managed by a certain Danthea Lopez, the wife of another first cousin of
FRANCISCO's wife, and among whose directors were Zafiro himself, his wife and
Danthea's husband. In closing, Zafiro identified MONINA's Social Security Record
(Exh. W), which was signed by Danthea as employer and where MONINA
designated Remedios as the beneficiary.

Page 215 of 349

Danthea Lopez, a 58-year old housekeeper, declared that FRANCISCO was the
first cousin of her husband, Eusebio D. Lopez; and that she came to know
MONINA in the latter part of 1965 when Remedios Franco recommended MONINA
for employment at Merchant Financing Co., which Danthea managed at that time.
Remedios introduced MONINA to Danthea "as being reputedly the daughter of Mr.
Frank Jison;" and on several occasions thereafter, Remedios made Danthea and
the latter's husband understand that MONINA was "reputedly the daughter of
[FRANCISCO]" While MONINA worked at Merchant Financing, Danthea knew that
MONINA lived with Remedios; however, in the latter part of 1966, as Remedios left
for Manila and MONINA was still studying at San Agustin University, Danthea and
her husband invited MONINA to live with them. During MONINA's 6-month stay
with them, she was not charged for board and lodging and was treated as a
relative, not a mere employee, all owing to what Remedios had said regarding
MONINA's filiation. As Danthea understood, MONINA resigned from Merchant
Financing as she was called by Mrs. Cuaycong, a first cousin of Danthea's
husband who lived in Bacolod City.

Romeo Bilbao, a 43-year old seaman, testified that he had worked for
FRANCISCO from 1969 up to 1980 at Nelly Garden in various capacities: as a
procurement officer, hacienda overseer and, later, as hacienda administrator.
Sometime in May, 1971, Romeo saw and heard MONINA ask "her Daddy"
(meaning FRANCISCO) for the money he promised to give her, but FRANCISCO
answered that he did not have the money to give, then told MONINA to go see Mr.
Jose Cruz in Bacolod City. Then in the middle of September that year,
FRANCISCO told Romeo to pick up Mr. Cruz at the Iloilo pier and bring him to the
office of Atty. Benjamin Tirol. At said office, Atty. Tirol, Mr. Cruz and MONINA
entered a room while Romeo waited outside. When they came out, Atty. Tirol had
papers for MONINA to sign, but she refused. Atty. Tirol said that a check would be
released to MONINA if she signed the papers, so MONINA acceded, although Atty.
Tirol intended not to give MONINA a copy of the document she signed.
Thereafter, Mr. Cruz gave MONINA a check (Exh. Q), then MONINA grabbed a
copy of the document she signed and ran outside. Romeo then brought Mr. Cruz
to Nelly Garden. As to his motive for testifying, Romeo stated that he wanted to
help MONINA be recognized as FRANCISCO'S daughter.

Rudy Tingson, a 45-year old antique dealer, testified that in 1963-1964, he was
employed by FRANCISCO's wife at the Baguio Military Institute in Baguio City;
then in 1965, Rudy worked at FRANCISCO's office at Nelly Garden recording
hacienda expenses, typing vouchers and office papers, and, at times, acting as
paymaster for the haciendas. From the nature of his work, Rudy knew the
persons receiving money from FRANCISCO's office, and clearly remembered that
in 1965, as part of his job, Rudy gave MONINA her allowance from FRANCISCO
four (4) times, upon instructions of a certain Mr. Lagarto to give MONINA P15.00 a
month. Rudy likewise recalled that he first met MONINA in 1965, and that she
would go to Nelly Garden whenever FRANCISCO's wife was not around. On some

Page 216 of 349

of these occasions, MONINA would speak with and address FRANCISCO as
"Daddy," without objection from FRANCISCO. In fact, in 1965, Rudy saw
FRANCISCO give MONINA money thrice. Rudy further declared that in April 1965,
FRANCISCO's office paid P250.00 to Funeraria Bernal for the funeral expenses of
MONINA's mother. Finally, as to Rudy's motives for testifying, he told the court
that he simply wanted to held bring out the truth "and nothing but the truth," and
that MONINA's filiation was common knowledge among the people in the office at
Nelly Garden.

On re-direct, Rudy declared that the moneys given by FRANCISCO's office to

MONINA were not reflected in the books of the office, but were kept in a separate
book, as Mr. Lagarto explained that FRANCISCO's wife and children "should not
know [of] this." Rudy further revealed that as to the garden "meetings" between
FRANCISCO and MONINA, Rudy saw MONINA kiss FRANCISCO on the cheek
both upon arriving and before leaving, and FRANCISCO's reaction upon seeing
her was to smile and say in the Visayan dialect: "Kamusta ka iha?" ("How are
you, daughter?"); and that MONINA was free to go inside the house as the
household staff knew of her filiation, and that, sometimes, MONINA would join
them for lunch.

Alfredo Baylosis, a 62-year old retired accountant, testified that he worked for
FRANCISCO at Central Santos-Lopez in Iloilo from 1951 up to 1961, then at Nelly
Garden from 1961 until 1972. Alfredo first served FRANCISCO as a bookkeeper,
then when Mr. Lagarto died in 1967 or 1969, Alfredo replaced Mr. Lagarto as office
manager.

Alfredo knew MONINA since 1961 as she used to go to Nelly Garden to claim her
P15.00 monthly allowance given upon FRANCISCO's standing order. Alfredo
further declared that MONINA's filiation was pretty well-known in the office, that
he had seen MONINA and FRANCISCO go from the main building to the office,
with FRANCISCO's arm on MONINA's shoulder; and that the office paid for the
burial expenses of Pansay, but this was not recorded in the books in order to
hide it from FRANCISCO's wife. Alfredo also disclosed that the disbursements for
MONINA's allowance started in 1961 and were recorded in a separate cash book.
In 1967, the allowances ceased when MONINA stopped schooling and was
employed in Bacolod City with Miller, Cruz & Co., which served as FRANCISCO's
accountant-auditor. Once, when Alfredo went to the offices of Miller, Cruz & Co.
to see the manager, Mr. Atienza, and arrange for the preparation of FRANCISCO's
income tax return, Alfredo chanced upon MONINA. When Alfredo asked her how
she came to work there, she answered that "her Daddy," FRANCISCO,
recommended her, a fact confirmed by Mr. Atienza Alfredo then claimed that Mr.
Jose Cruz, a partner at Miller, Cruz & Co., was the most trusted man of
FRANCISCO.

Page 217 of 349

Dominador Savariz, a 55-year old caretaker, testified that he worked as
FRANCISCO's houseboy at Nelly Garden from November 1953 up to 1965. One
morning in April 1954, MONINA and her mother Pansay went to Nelly Garden and
spoke with FRANCISCO for about an hour, during which time, Dominador was
vacuuming the carpet about six (6) to seven (7) meters away. Due to the noise of
the vacuum cleaner, FRANCISCO and MONINA spoke in loud voices, thus
Dominador overheard their conversation. As FRANCISCO asked Pansay why they
came, Pansay answered that they came to ask for the "sustenance" of his child
MONINA. FRANCISCO then touched MONINA's head and asked: "How are you
Hija?," to which MONINA answered: "Good morning, Daddy." After FRANCISCO
told Pansay and MONINA to wait, he pulled something from his wallet and said to
Pansay. "I am giving this for a child."

In May 1954, Dominador saw MONINA at Mr. Lagarto's office where Dominador
was to get "the day's expenses," while MONINA was claiming her allowance from
Mr. Diasnes. The next month, Dominador saw MONINA at Nelly Garden and heard
in the office that MONINA was there to get her allowance "from her Daddy." In
December 1960, Dominador saw MONINA at Nelly Garden, in the room of Don
Vicente (father of FRANCISCO's wife), where she asked for a Christmas gift "and
she was calling Don Vicente, Lolo (grandfather)." At that time, FRANCISCO and
his wife were not around. Then sometime in 1961, when Dominador went to Mr.
Legarto's office to get the marketing expenses, Dominador saw MONINA once
more claiming her allowance.

Dominador further testified that in February 1966, after he had stopped working
for FRANCISCO, Dominador was at Mrs. Franco's residence as she recommended
him for employment with her sister, Mrs. Concha Cuaycong. There, he saw
MONINA, who was then about 15 years old, together with Mrs. Franco's daughter
and son. Mrs. Franco pointed at MONINA and asked Dominador if he knew who
MONINA was. Dominador answered that MONINA was FRANCISCO's daughter
with Pansay, and then Mrs. Franco remarked that MONINA was staying with her
(Mrs. Franco) and that she was sending MONINA to school at the University of
San Agustin.

Lope Amolar, a 50-year old resident of Dingle, Iloilo, and the younger brother of
Esperanza Amolar (Pansay), testified that he worked for FRANCISCO as a
houseboy from March to November 1945 at Nelly Garden. Thereafter, FRANCISCO
sent Lope to work at Elena Apartments in Manila. By November 1945, Pansay was
also working at Elena Apartments, where she revealed to Lope that FRANCISCO
impregnated her. Lope then confronted FRANCISCO, who told Lope "don't get
hurt and don't cause any trouble, because I am willing to support your Inday
Pansay and my child." Three (3) days after this confrontation, Lope asked for and
received permission from FRANCISCO to resign because he (Lope) was hurt.

Page 218 of 349

On 21 October 1986, MONINA herself took the witness stand. At that time, she
was 40 years old and a Central Bank Examiner. She affirmed that as evidenced by
certifications from the Office of the Local Civil Registrar (Exhs. E and F) and
baptismal certificates (Exhs. C and D), she was born on 6 August 1946 in
Barangay Tabugon, Dingle, Iloilo, to Esperanza Amolar (who passed away on 20
April 1965) and FRANCISCO. 9 MONINA first studied at Sagrado where she stayed
as a boarder. While at Sagrado from 1952 until 1955 (up to Grade 4), her father,
FRANCISCO, paid for her tuition fees and other school expenses. She either
received the money from FRANCISCO or from Mr. Lagarto, or saw FRANCISCO
give money to her mother, or Mr. Lagarto would pay Sagrado directly. After
Sagrado, MONINA studied in different schools, 10but FRANCISCO continuously
answered for her schooling.

For her college education, MONINA enrolled at the University of Iloilo, but she
later dropped due to an accident which required a week's hospitalization.
Although FRANCISCO paid for part of the hospitalization expenses, her mother
shouldered most of them. In 1963, she enrolled at the University of San Agustin,
where she stayed with Mrs. Franco who paid for MONINA's tuition fees. However,
expenses for books, school supplies, uniforms and the like were shouldered by
FRANCISCO. At the start of each semester, MONINA would show FRANCISCO
that she was enrolled, then he would ask her to canvass prices, then give her the
money she needed. After finishing two (2) semesters at University of San Agustin,
as evidenced by her transcript of records (Exh. Z showing the FRANCISCO was
listed as Parent/Guardian [Exh. Z-1], she transferred to "De Paul College," just in
front of Mrs. Franco's house, and studied there for a year. Thereafter, MONINA
enrolled at Western Institute of Technology (WIT), where she obtained a
bachelor's degree in Commerce in April 1967. During her senior year, she stayed
with Eusebio and Danthea Lopez at Hotel Kahirup, owned by said couple. She
passed the CPA board exams in 1974, and took up an M.B.A. at De La Salle
University as evidenced by her transcript (Exh. AA), wherein FRANCISCO was
likewise listed as "Guardian" (Exhs. AA-1 and AA-2).

MONINA enumerated the different members of the household staff at Nelly

Garden, to wit: Luz, the household cook; the houseboys Silvestre and Doming;
the housemaid Natang; the yaya of the adopted triplets, Deling; the yaya of Lolo
Vicente, Adelina; and others. MONINA likewise enumerated the members of the
office staff (Messrs. Baylosis, Lagarto, Tingson, Diasnes, Jalandoni, Supertisioso,
Doroy, and other), and identified them from a photograph marked as Exhibit X-2.
She then corroborated the prior testimony regarding her employment at Merchant
Financing Co., and her having lived at Hotel Kahirup and at Mrs. Cuaycong's
residence in Bacolod City, while working at the hospital owned by Mrs.
Cuaycong.

MONINA further testified that in March 1968, she went to Manila and met
FRANCISCO at Elena Apartments at the corner of Romero and Salas Streets,

Page 219 of 349

Ermita. She told FRANCISCO that she was going for a vacation in Baguio City
with Mrs. Franco's mother, with whom she stayed up to June 1968. Upon her
return from Baguio City, MONINA told FRANCISCO that she wanted to work, so
the latter arranged for her employment at Miller & Cruz in Bacolod City. MONINA
went to Bacolod City, was interviewed by Mr. Jose Cruz, a partner at Miller &
Cruz, who told her she would start working first week of September, sans
examination. She resigned from Miller & Cruz in 1971 and lived with Mrs.
Cuaycong at her Forbes Park residence in Makati. MONINA went to see
FRANCISCO, told him that she resigned and asked him for money to go to Spain,
but FRANCISCO refused as she could not speak Spanish and would not be able
find a job. The two quarreled and FRANCISCO ordered a helper to send MONINA
out of the house. In the process, MONINA broke many glasses at the pantry and
cut her hand, after which, FRANCISCO hugged her, gave her medicine, calmed
her down, asked her to return to Bacolod City and promised that he would giver
her the money.

MONINA returned to Bacolod City by plane, using a Filipinas Orient Airways plane
ticket (Exh. M) which FRANCISCO gave. She called Mr. Cruz, then Atty. Tirol, as
instructed by Mr. Cruz. These calls were evidenced by PLDT long distance toll
card (Exhs. G to L), with annotations at the back reading; "charged and paid
under the name of Frank L. Jison" and were signed by Arsenio Duatin (Exhs. G-1
to L-1). PLDT issued a certification as to the veracity of the contents of the toll
cards (Exh. BB). Likewise introduced in evidence was a letter of introduction
prepared by Mr. Cruz addressed to Atty. Tirol, on MONINA's behalf (Exh. N).

MONINA also declared that Atty. Tirol then told her that she would have to go to
Iloilo and sign a certain affidavit, before Mr. Cruz would turn over the money
promised by FRANCISCO. She went to Atty. Tirol's office in Iloilo, but after going
over the draft of the affidavit, refused to sign it as it stated that she was not
FRANCISCO's daughter. She explained that all she had agreed with FRANCISCO
was that he would pay for her fare to go abroad, and that since she was a little
girl, she knew about her illegitimacy. She started crying, begged Atty. Tirol to
change the affidavit, to which Atty. Tirol responded that he was also a father and
did not want this to happen to his children as they could not be blamed for being
brought into the world. She then wrote a letter (Exh. O) to FRANCISCO and sent it
to the latter's Forbes Park residence (Bauhinia Place) by JRS courier service
(Exhs. O-5 to O-7). MONINA subsequently met FRANCISCO in Bacolod City where
they discussed the affidavit which she refused to sign. FRANCISCO told her that
the affidavit was for his wife, that in case she heard about MONINA going abroad,
the affidavit would "keep her peace."

MONINA then narrated that the first time she went to Atty. Tirol's office, she was
accompanied by one Atty. Fernando Divinagracia, who advised her that the
affidavit (Exh. P)11 would "boomerang" against FRANCISCO "as it is contrary to
law." MONINA returned to Bacolod City, then met with Atty. Tirol once more to

Page 220 of 349

reiterate her plea, but Atty. Tirol did not relent. Thus, on the morning of 20 or 21
September 1971, she signed the affidavit as she was jobless and needed the
money to support herself and finish her studies. In exchange for signing the
document, MONINA received a Bank of Asia check for P15,000.00 (Exh. Q), which
was less than the P25,000.00 which FRANCISCO allegedly promised to give. As
Atty. Tirol seemed hesitant to give her a copy of the affidavit after notarizing it,
MONINA merely grabbed a copy and immediately left.

MONINA then prepared to travel abroad, for which purpose, she procured letters
of introduction (Exhs. S and T) from a cousin, Mike Alano (son of FRANCISCO's
elder sister Luisa); and an uncle, Emilio Jison (FRANCISCO's elder brother),
addressed to another cousin, Beth Jison (Emilio's daughter), for Beth to assist
MONINA. Exhibit S contained a statement (Exh. S-1) expressly recognizing that
MONINA was FRANCISCO's daughter. Ultimately though, MONINA decided not to
go abroad, opting instead to spend the proceeds of the P15,000.00 check for her
CPA review, board exam and graduate studies. After finishing her graduate
studies, she again planned to travel abroad, for which reason, she obtained a
letter of introduction from former Vice President Fernando Lopez addressed to
then United States Consul Vernon McAnnich (Exh. V).

As to other acts tending to show her filiation, MONINA related that on one
occasion, as FRANCISCO's wife was going to arrive at the latter's Bacolod City
residence, FRANCISCO called Arsenio Duatin and instructed Arsenio to hide
MONINA. Thus, MONINA stayed with Mrs. Luisa Jison for the duration of the stay
of FRANCISCO's wife. MONINA also claimed that she knew Vice President
Fernando Lopez and his wife, Mariquit, even before starting to go to school. Thus,
MONINA asked for a recommendation letter (Exh. U) from Mrs. Mariquit Lopez for
possible employment with Mrs. Rosario Lopez Cooper, another second cousin of
FRANCISCO. In Exhibit U, Mrs. Lopez expressly recognized MONINA as
FRANCISCO's daughter. As additional proof of her close relationship with the
family of Vice President Lopez, MONINA identified photographs taken at a
birthday celebration on 14 April 1985.

MONINA finally claimed that she knew the three (3) children of FRANCISCO by
wife, namely, Lourdes, Francisco, Jr., (Junior) and Elena, but MONINA had met
only Lourdes and Junior. MONINA's testimony dealt lengthily on her dealings
with Junior and the two (2) occasions when she met with Lourdes. The last time
MONINA saw FRANCISCO was in March 1979, when she sought his blessings to
get married.

In his defense, FRANCISCO offered his deposition taken before then Judge
Romeo Callejo of the Regional Trial Court of Manila, Branch 48. As additional
witnesses, FRANCISCO presented Nonito Jalandoni, Teodoro Zulla, Iñigo
Supertisioso, Lourdes Ledesma, Jose Cruz and Dolores Argenal.

Page 221 of 349

FRANCISCO declared that Pansay's employment ceased as of October, 1 1944,
and that while employed by him, Pansay would sleep with the other female
helpers on the first floor of his residence, while he, his wife and daughter slept in
a room on the second floor. At that time, his household staff was composed of
three (3) female workers and two (2) male workers. After Pansay left in October
1944, she never communicated with him again, neither did he know of her
whereabouts. FRANCISCO staunchly denied having had sexual relations with
Pansay and disavowed any knowledge about MONINA's birth. In the same vein,
he denied having paid for MONINA's tuition fees, in person or otherwise, and
asserted that he never knew that Mr. Lagarto paid for these fees. Moreover,
FRANCISCO could not believe that Lagarto would pay for these fees despite
absence of instructions or approval from FRANCISCO. He likewise categorically
denied that he told anyone, be it Danthea Lopez, Zafiro Ledesma, Concha
Cuaycong or Remedios Franco, that MONINA was his daughter.

FRANCISCO also disclosed that upon his return from the United States in 1971,
he fired Alfredo Baylosis upon discovering that Alfredo had taken advantage of
his position during the former's absence. FRANCISCO likewise fired Rudy
Tingson and Romeo Bilbao, but did not give the reasons therefor.

Finally, FRANCISCO denied knowledge of MONINA's long distance calls from his
Bacolod residence; nevertheless, when he subsequently discovered this, he fired
certain people in his office for their failure to report this anomaly. As regards the
caretaker of his Bacolod residence, FRANCISCO explained that since MONINA
lived at Mrs. Cuaycong's residence, the caretaker thought that he could allow
people who lived at the Cuaycong residence to use the facilities at his
(FRANCISCO's) house.

Nonito Jalandoni, bookkeeper and paymaster at Nelly's Garden from 1963 up to

1974, then from 1980 up to 1986, the assistant overseer of Hacienda Lopez,
testified that he did not know MONINA; that he learned of her only in June 1988,
when he was informed by FRANCISCO that MONINA had sued him; and that he
never saw MONINA at Nelly's Garden, neither did he know of any instructions for
anyone at Nelly's Garden to give money to MONINA.

Teodoro Zulla, FRANCISCO's bookkeeper and paymaster from 1951 up to 1986,

testified that FRANCISCO dismissed Alfredo Baylosis due to certain unspecified
discrepancies; and that he never saw MONINA receive funds from either Mr.
Lagarto or Mr. Baylosis. Upon questions from the trial court, however, Teodoro
admitted that he prepared vouchers for only one of FRANCISCO's haciendas, and
not vouchers pertaining to the latter's personal expenses.

Iñigo Supertisioso testified that he worked for FRANCISCO at Nelly's Garden from
1964 up to 1984 as a field inspector, paymaster, cashier and, eventually, officer-
in-charge (OIC). He confirmed Alfredo Baylosis' dismissal due to these

Page 222 of 349

unspecified irregularities, then denied that FRANCISCO ever ordered that
MONINA be given her allowance. Likewise, Iñigo never heard FRANCISCO
mention that MONINA was his (FRANCISCO's) daughter.

Lourdes Ledesma, FRANCISCO's daughter, testified that she saw (but did not
know) MONINA at the Our Lady of Mercy Hospital, on the occasion of the birth of
Lourdes' first son, Mark. Over lunch one day, Lourdes' aunt casually introduced
Lourdes and MONINA to each other, but they were referred to only by their first
names. Then sometime in 1983 or 1984, MONINA allegedly went to Lourdes'
house in Sta. Clara Subdivision requesting for a letter of introduction or referral
as MONINA was then job-hunting. However, Lourdes did not comply with the
request.

Jose Cruz, a partner at Miller, Cruz & Co., testified that MONINA worked at Miller
& Cruz from 1968 up to 1971, however, he did not personally interview her before
she was accepted for employment. Moreover, MONINA underwent the usual
screening procedure before being hired. Jose recalled that one of the
accountants, a certain Mr. Atienza, reported that MONINA claimed to be
FRANCISCO's daughter. Jose then told Mr. Atienza to speak with MONINA and
see if he (Mr. Atienza) could stop her from spreading this rumor. Mr. Atienza
reported that he spoke with MONINA, who told him that she planned to leave for
the United States and needed P20,000.00 for that purpose, and in exchange, she
would sign a document disclaiming filiation with FRANCISCO. Thus, Jose
instructed Mr. Atienza to request that MONINA meet with Jose, and at that
meeting, MONINA confirmed Mr. Atienza's report. Jose then informed Atty. Tirol,
FRANCISCO's personal lawyer, about the matter.

Atty. Tirol told Jose to send MONINA and her lawyer to his (Atty. Tirol's) office in
Iloilo. Jose then wrote out a letter of introduction for MONINA addressed to Atty.
Tirol Jose relayed Atty. Tirol's message to MONINA through Mr. Atienza, then
later, Atty. Tirol told Jose to go to Iloilo with a clerk for P15,000.00 Jose complied,
and at Atty. Tirol's office, Jose saw MONINA, Atty. Tirol and his secretary reading
some documents. MONINA then expressed her willingness to sign the document,
sans revisions. Jose alleged that he drew the P15,000.00 from his personal funds,
subject to reimbursement from and due to an understanding with FRANCISCO.

Dolores Argenal, a househelper at Nelly Garden from May 1944 up to May 1946,
testified that she knew that Pansay was Lourdes' nanny; that Lourdes slept in her
parents' room; that she had not seen FRANCISCO give special treatment to
Pansay; that there was no "unusual relationship" between FRANCISCO and
Pansay, and if there was any, Dolores would have easily detected it since she
slept in the same room as Pansay. Dolores further declared that whenever
FRANCISCO's wife was out of town, Pansay would bring Lourdes downstairs at
nighttime, and that Pansay would not sleep in the room where FRANCISCO slept.

Page 223 of 349

Finally, Dolores declared that Pansay stopped working for FRANCISCO and his
wife in October, 1944.

The reception of evidence having been concluded, the parties filed their
respective memoranda.

It need be recalled that Judge Catalino Castañeda, Jr. presided over trial up to 21
October 1986, thereby hearing only the testimonies of MONINA's witnesses and
about half of MONINA's testimony on direct examination. Judge Norberto E.
Devera, Jr. heard the rest of MONINA's testimony and those of FRANCISCO's
witnesses.

In its decision of 12 November 1990 12 the trial court, through Judge Devera,
dismissed the complaint with costs against MONINA. In the opening paragraph
thereof, it observed:

This is a complaint for recognition of an illegitimate child instituted by

plaintiff Monina Jison against defendant Francisco Jison. This complaint
was filed on March 13, 1985 at the time when plaintiff, reckoned from her
death of birth, was already thirty-nine years old. Noteworthy also is the fact
that it was instituted twenty years after the death of plaintiff's mother,
Esperanza Amolar. For the years between plaintiff's birth and Esperanza's
death, no action of any kind was instituted against defendant either by
plaintiff, her mother Esperanza or the latter's parents. Neither had plaintiff
brought such an action against defendant immediately upon her mother's
death on April 20, 1965, considering that she was then already nineteen
years old or, within a reasonable time thereafter. Twenty years more had to
supervene before this complaint was eventually instituted.

The trial court then proceeded to discuss the four issues stipulated at pre-trial,
without, however, summarizing the testimonies of the witnesses nor referring to
the testimonies of the witnesses other than those mentioned in the discussion of
the issues.

The trial court resolved the first issue in the negative, holding that it was
improbable for witness Lope Amolar to have noticed that Pansay was pregnant
upon seeing her at the Elena Apartments in November 1945, since Pansay was
then only in her first month of pregnancy; that there was no positive assertion
that "copulation did indeed take place between Francisco and Esperanza;" and
that MONINA's attempt to show opportunity on the part of FRANCISCO failed to
consider "that there was also the opportunity for copulation between Esperanza
and one of the several domestic helpers admittedly also residing at Nelly's
Garden at that time." The RTC also ruled that the probative value of the birth and
baptismal certificates of MONINA paled in light of jurisprudence, especially when
the misspellings therein were considered.

Page 224 of 349

The trial court likewise resolved the second issue in the negative, finding that
MONINA's evidence thereon "may either be one of three categories, namely:
hearsay evidence, incredulous evidence, or self-serving evidence." To the first
category belonged the testimonies of Adela Casabuena and Alfredo Baylosis,
whose knowledge of MONINA's filiation was based, as to the former, on
"utterances of defendant's wife Lilia and Esperanza allegedly during the heat of
their quarrel," while as to the latter, Alfredo's conclusion was based "from the
rumors going [around] that plaintiff is defendant's daughter, front his personal
observation of plaintiff's facial appearance which he compared with that of
defendant's and from the way the two (plaintiff and defendant) acted and treated
each other on one occasion that he had then opportunity to closely observe them
together." To the second category belonged that of Dominador Savariz, as:

At each precise time that Esperanza allegedly visited Nelly's Garden and
allegedly on those occasions when defendant's wife, Lilia was in Manila,
this witness was there and allegedly heard pieces of conversation between
defendant and Esperanza related to the paternity of the latter's child. . .

The RTC then placed MONINA's testimony regarding the acts of recognition
accorded her by FRANCISCO's relatives under the third category, since the latter
were never presented as witnesses, for which reason the trial court excluded the
letters from FRANCISCO's relatives (Exhs. S to V).

As to the third issue, the trial court held that MONINA was not barred by
prescription for it was of "the perception . . . that the benefits of Article 268
accorded to legitimate children may be availed of or extended to illegitimate
children in the same manner as the Family Code has so provided;" or by laches,
"which is [a] creation of equity applied only to bring equitable results, and . . .
addressed to the sound discretion of the court [and] the circumstances [here]
would show that whether plaintiff filed this case immediately upon the death of
her mother Esperanza in 1965 or twenty years thereafter in 1985, . . . there seems
to be no inequitable result to defendant as related to the situation of plaintiff."

The RTC ruled, however, that MONINA was barred by estoppel by deed because
of the affidavit (Exh. P/Exh. 2) which she signed "when she was already twenty-
five years, a professional and . . . under the able guidance of counsel."

Finally, the RTC denied FRANCISCO's claim for damages, finding that MONINA
did not file the complaint with malice, she having been "propelled by an honest
belief, founded on probable cause."

MONINA seasonably appealed to the Court of Appeals (CA-G.R. CV No. 32860)

and sought reversal of the trial court's decision on the grounds that:

Page 225 of 349

 THE TRIAL COURT WAS ERRONEOUSLY PREDISPOSED TO ADJUDGE
THIS CASE AGAINST APPELLANT DUE TO ITS MISPERCEPTION THAT
APPELLANT'S DELAY IN FILING HER COMPLAINT WAS FATAL TO HER
CASE.

II

THE TRIAL COURT ERRED IN ITS REJECTION OF THE TESTIMONIES OF

APPELLANT'S WITNESSES AS TAILOR-MADE, INADEQUATE AND
INCREDIBLE.

III

THE TRIAL COURT ERRED IN ITS REJECTION OF THE ADMISSIBILITY OF

THE CERTIFIED COPIES OF PUBLIC DOCUMENTS PRESENTED BY
APPELLANT AS PART OF HER EVIDENCE.

IV

THE TRIAL COURT ERRED IN ITS REQUIREMENT THAT A WITNESS TO

THE ACTUAL ACT O COPULATION BETWEEN THE APPELLEE AND
APPELLANT'S MOTHER SHOULD HAVE POSITIVELY TESTIFIED TO SAID
EFFECT.

THE TRIAL COURT ERRED IN REJECTING THE ADMISSIBILITY OF THE

DULY IDENTIFIED NOTES AND LETTER OF THE RELATIVES OF THE
APPELLEE AS HEARSAY.

VI

THE TRIAL COURT ERRED IN CONCLUDING THAT APPELLANT'S

AFFIDAVIT (EXH. P) SERVED AS A BAR AGAINST HER CLAIM FOR
RECOGNITION INSTEAD OF REINFORCING SAID CLAIM. 13

Expectedly, FRANCISCO refuted these alleged errors in his Appellee's Brief. 14

In its decision of 27 April 1995, 15 the Court of Appeals initially declared that as no
vested or acquired rights were affected, the instant case was governed by Article
175, in relation to Articles 172 and 173, of the Family Code. 16 While the Court of
Appeals rejected the certifications issued by the Local Civil Registrar of Dingle,
Iloilo (Exhs. E and F) as FRANCISCO did not sign them, said court focused its
discussion on the other means by which illegitimate filiation could be proved, i.e.,
the open and continuous possession of the status of an illegitimate child or, by

Page 226 of 349

any other means allowed by the Rules of Court and special laws, such as "the
baptismal certificate of the child, a judicial admission, a family bible wherein the
name of the child is entered, common reputation respecting pedigree, admission
by silence, testimonies of witnesses . . ." 17 To the Court of Appeals, the "bottom
line issue" was whether or not MONINA established her filiation as FRANCISCO's
illegitimate daughter by preponderance of evidence, as to which issue said court
found:

[N]ot just preponderant but overwhelming evidence on record to prove that

[MONINA] is the illegitimate daughter of [FRANCISCO] and that she had
continuously enjoyed such status by direct acts of [FRANCISCO] and/or
his relatives.

In so ruling, the Court of Appeals observed that the testimonies of Lope Amolar,
Adela Casabuena and Dominador Savariz were already sufficient to establish
MONINA's filiation:

As adverted to earlier, the trial court discredited Lope Amolar's testimony

by saying that Lope could not have detected Esperanza's pregnant state in
November, 1945 since at that point in time [sic] she was still in the initial
stage of pregnancy. Apparently, the trial court paid more emphasis on the
date mentioned by Lope Amolar than on the tenor and import his
testimony. As . . . Lope . . . was asked about an incident that transpired
more than 41 years back, [u]nder the circumstances, it is unreasonable to
expect that Lope could still be dead right on the specific month in 1945 that
[he] met and confronted his sister. At any rate, what is important is not the
month that they met but the essence of his testimony that his sister
pointed to their employer [FRANCISCO] as the one responsible for her
pregnancy, and that upon being confronted, [FRANCISCO] assured him of
support for Esperanza and their child. It would appear then that in an
attempt to find fault with Lope's testimony, the trial court has fallen
oblivious to the fact that even [FRANCISCO], in his deposition, did not
deny that he was confronted by Lope about what he had done to Esperanza
during which he unequivocally acknowledged paternity by assuring Lope
of support for both Esperanza and their child.

The Court of Appeals further noted that Casabuena and Savariz "testified on
something that they personally observed or witnessed," which matters
FRANCISCO "did not deny or refute." Finally, said court aptly held:

Taking into account all the foregoing uncontroverted testimonies

. . . let alone such circumstantial evidence as [MONINA's] Birth
Certificates . . . and Baptismal Certificates which invariably bear the name
of [FRANCISCO] as her father, We cannot go along with the trial court's

Page 227 of 349

theory that [MONINA's] illegitimate filiation has not been satisfactorily
established.

x x x           x x x          x x x

Significantly, [MONINA's] testimony finds ample corroboration from

[FRANCISCO's] former employees, Arsenio Duatin, Rudy Tingson and
Alfredo Baylosis. . . .

x x x           x x x          x x x

Carefully evaluating appellant's evidence on her enjoyment of the status of

an illegitimate daughter of [FRANCISCO] vis-a-vis [FRANCISCO's]
controversion thereof, We find more weight in the former. The positive
testimonies of [MONINA] and [her] witnesses . . . all bearing on
[FRANCISCO's] acts and/or conduct indubitably showing that he had
continuously acknowledged [MONINA] as his illegitimate daughter have not
been succeessfully [sic] refuted. In fact, [FRANCISCO] himself, in his
deposition, only casually dismissed [MONINA's] exhaustive and detailed
testimony as untrue, and with respect to those given by [MONINA's]
witnesses, he merely explained that he had fired [them] from their
employment. Needless to state, [FRANCISCO's] vague denial is grossly
inadequate to overcome the probative weight of [MONINA's] testimonial
evidence.

Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial
court . . . does not hold sway in the face of [MONINA's] logical explanation
that she at first did agree to sign the affidavit which contained untruthful
statements. In fact, she promptly complained to [FRANCISCO] who,
however explained to her that the affidavit was only for the consumption of
his spouse . . . Further, the testimony of Jose Cruz concerning the events
that led to the execution of the affidavit . . . could not have been true, for as
pointed out by [MONINA] she signed the affidavit . . . almost five months
after she had resigned from the Miller, Cruz & Co. . . .

At any rate, if [MONINA] were not his illegitimate daughter, it would have
been uncalled for, if not absurd, for [FRANCISCO] or his lawyer to have
secured [MONINA's] sworn statement . . . On the contrary, in asking
[MONINA] to sign the said affidavit at the cost of P15,000. [FRANCISCO]
clearly betrayed his intention to conceal or suppress his paternity of
[MONINA] . . .

In fine, We hold that [MONINA's] filiation as [FRANCISCO's] illegitimate

daughter has been conclusively, established by the uncontroverted
testimonies of Lope Amolar, Adela Casabuena and Dominador Savariz to

Page 228 of 349

the effect that appellee himself had admitted his paternity of the appellee,
and also by the testimonies of appellant; Arsenio Duatin, Romeo Bilbao,
Rudy Tingson and Alfredo Baylosis unerringly demonstrating that by his
own conduct or overt acts like sending appellant to school, paying for her
tuition fees, school uniforms, books, board and lodging at the Colegio del
Sagrado Corazon de Jesus, defraying appellant's hospitalization expenses,
providing her with [a] monthly allowance, paying for the funeral expenses
of appellant's mother, acknowledging appellant's paternal greetings and
calling appellant his "Hija" or child, instructing his office personnel to give
appellant's monthly allowance, recommending appellant for employment at
the Miller, Cruz & Co., allowing appellant to use his house in Bacolod and
paying for her long distance telephone calls, having appellant spend her
vacation in his apartment in Manila and also at his Forbes residence,
allowing appellant to use his surname in her scholastic and other records
(Exhs. Z, AA, AA-1, to AA-5, W & W-5), appellee had continuously
recognized appellant as his illegitimate daughter. Added to these are the
acts of [FRANCISCO's] relatives acknowledging or treating [MONINA] as
[FRANCISCO's] daughter (Exh. U) or as their relative (Exhs. T & V). On this
point, witness Zafiro Ledesma, former Mayor of Iloilo City, whose spouse
belongs to the Lopez clan just like [FRANCISCO], testified that [MONINA)
has been considered by the Lopezes as a relative. He identified pictures of
the appellee in the company of the Lopezes (Exhs X-16 & X-17). Another
witness, Danthea H. Lopez, whose husband Eusebio Lopez is appellee's
first cousin, testified that appellant was introduced to her by appellee's
cousin, Remedios Lopez Franco, as the daughter of appellee Francisco
Jison, for which reason, she took her in as [a] secretary in the Merchant's
Financing Corporation of which she was the manager, and further allowed
her to stay with her family free of board and lodging. Still on this aspect,
Dominador Savariz declared that sometime in February, 1966 appellee's
relative, Ms. Remedios Lopez Franco pointed to appellant as the daughter
of appellee Francisco Jison.

Finally, the Certifications of the Local Civil Registrar of Dingle (Exhs E and
F) as well as [MONINA's] Baptismal Certificates (Exhs C & D) which the trial
court admitted in evidence as part of [MONINA's] testimony, may serve as
circumstantial evidence to further reinforce [MONINA's] claim that she is
[FRANCISCO's] illegitimate daughter by Esperanza Amolar.

True it is that a trial judge's assessment of the credibility of witnesses is

accorded great respect on appeal. But the rule admits of certain
exceptions. One such exception is where the judge who rendered the
judgment was not the one who heard the witnesses testify. [citations
omitted] The other is where the trial court had overlooked, misunderstood
or misappreciated some facts or circumstances of weight and substance
which, if properly considered, might affect the result of the case. [citations

Page 229 of 349

 omitted] In the present case, both exceptions obtain. All of [MONINA's]
witnesses . . . whose testimonies were not given credence did not testify
before the judge who rendered the disputed judgment . . .

The Court of Appeals then decreed:

WHEREFORE, premises considered, the judgment of the trial court is SET

ASIDE and another one is hereby entered for appellant Monina Jison,
declaring her as the illegitimate daughter of appellee Francisco Jison, and
entitled to all rights and privileges granted by law.

Costs against appellee.

SO ORDERED.

His motion for reconsideration having been denied by the Court of Appeals in its
resolution of 29 March 1996,18 FRANCISCO filed the instant petition. He urges us
to reverse the judgment of the Court of Appeals, alleging that said court
committed errors of law:

I.

. . . IN REVERSING THE DECISION OF THE TRIAL COURT AND DECLARING

PRIVATE RESPONDENT AS THE ILLEGITIMATE CHILD OF PETITIONER,
CONSIDERING [THE] IMPOSSIBILITY OF SEXUAL CONTACT BETWEEN
THE PETITIONER AND THE PRIVATE RESPONDENTS MOTHER AT THE
TIME CONCEPTION WAS SUPPOSED TO HAVE OCCURRED.

II.

. . . IN REVERSING THE TRIAL COURT'S FINDING CONSIDERING THAT

PRIVATE RESPONDENTS TESTIMONIAL EVIDENCE OF PATERNITY AND
FILIATION IS NOT CLEAR AND CONVINCING.

III.

. . . IN GIVING CREDENCE TO DOCUMENTARY EVIDENCE PRESENTED BY

THE PRIVATE RESPONDENT AS EVIDENCE OF FILIATION CONSIDERING
THAT THE SAME ARE HEARSAY, SELF-SERVING AND CANNOT BIND THE
PETITIONER UNDER THE BASIC RULES OF EVIDENCE.

IV.

Page 230 of 349

 . . . IN INTERPRETING THE PRIVATE RESPONDENTS SWORN STATEMENT
(EXH. "P" /EXH. "2") IN A MANNER NOT IN CONSONANCE WITH THE
RULINGS OF THE HONORABLE SUPREME COURT.

V.

. . . IN NOT CONSIDERING THE LONG AND UNEXPLAINED DELAY IN THE

FILING OF THE PRESENT PATERNITY SUIT AS EQUIVALENT TO LACHES.

As regards the first error, FRANCISCO insists that taking into account the second
paragraph of MONINA's complaint wherein she claimed that he and Pansay had
sexual relations "by about the end of 1945 or the start of 1946," it was physically
impossable for him and Pansay to have had sexual contact which resulted in
MONINA's birth, considering that:

The normal period of human pregnancy is nine (9) months. If as claimed by

private respondent in her complaint that her mother was impregnated by
FRANCISCO "at the end of 1945 or the start of 1946", she would have been
born sometime in late September or early October and not August 6,
1946 . . . The instant case finds factual and legal parallels in Constantino
vs. Mendez,19 thus: . . .

FRANCISCO further claims that his testimony that Pansay was no longer
employed by him at the time in question was unrebutted, moreover, other men
had access to Pansay during the time of or even after her employment by him.

As to the second error, FRANCISCO submits that MONINA's testimonial evidence

is "shaky, contradictory and unreliable," and proceeds to attack the credibility of
her witnesses by claiming, in the main, that: (a) Lope Amolar could not have
detected Pansay pregnancy in November 1945 when they met since she would
have been only one (1) month pregnant then; (b) Dominador Savariz did not in
fact witness the meeting between FRANCISCO, Pansay and MONINA; (c) Zafiro
Ledesma had an ulterior motive in testifying for MONINA as he owned a bank in
Iloilo which was then under Central Bank supervision and MONINA was the Bank
Examiner assigned to Iloilo; and (d) Danthea Lopez was not related to him by
blood and whatever favorable treatment MONINA received from Danthea was due
to the former's employment at Merchants' Financing Company and additional
services rendered at Kahirup Hotel; besides Danthea admitted that she had no
personal knowledge as to the issue of paternity and filiation of the contending
parties, hence Sections 39 and 4020 of Rule 130 of the Rules of Court did not come
into play. FRANCISCO likewise re-echoes the view of the trial court as regards the
testimonies of Adela Casabuena and Alfredo Baylosis.

FRANCISCO further asserts that MONINA's testimony that he answered for her
schooling was self-serving and uncorroborated by any receipt or other

Page 231 of 349

documentary evidence; and assuming he did, such should be interpreted as a
manifestation of kindness shown towards the family of a former household
helper.

Anent the treatment given by his relatives to MONINA as his daughter,

FRANCISCO points to the fact that Pansay was the former laundrywoman of Mrs.
Franco; MONINA resided with the families of Eusebio Lopez and Concha
Cuaycong because she was in their employ at Kahirup Hotel and Our Lady of
Mercy Hospital, respectively; MONINA failed to present Mrs. Franco, Eusebio
Lopez and Mrs. Cuaycong; and MONINA's employment at the accounting firm of
Miller, Cruz & Co. was attributable to her educational attainment, there being
absolutely no evidence to prove that FRANCISCO ever facilitated her employment
thereat. Hence, in light of Baluyot v. Baluyot,21 the quantum of evidence to prove
paternity by clear and convincing evidence, not merely a preponderance thereof,
was not met.

With respect to the third assigned error, FRANCISCO argues that the Court of
Appeals' reliance on the certifications of the Local Civil Registrar (Exhs. E and F)
and Baptismal Certificates (Exhs. C and D) as circumstantial evidence is
misplaced. First, their genuineness could not be ascertained as the persons who
issued them did not testify. Second, in light of Reyes v. Court of Appeals,22 the
contents of the baptismal certificates were hearsay, as the data was based only
on what was told to the priest who solemnized the baptism, who likewise was not
presented as a witness. Additionally, the name of the father appearing therein
was "Franque Jison," which was not FRANCISCO's name. Third, in both Exhibits
E and F, the names of the child's parents were listed as "Frank Heson" and
"Esperanza Amador" (not Amolar). FRANCISCO further points out that in Exhibit
F, the status of the child is listen as "legitimate," while the father's occupation as
"laborer." Most importantly, there was no showing that FRANCISCO signed
Exhibits E and F or that he was the one who reported the child's birth to the
Office of the Local Civil Registrar. As to MONINA's educational records,
FRANCISCO invokes Bañas v. Bañas23 which recognized that school records are
prepared by school authorities, not by putative parents, thus incompetent to
prove paternity. And, as to the photographs presented by MONINA, FRANCISCO
cites Colorado v. Court of Appeals,24 and further asserts that MONINA did not
present any of the persons with whom she is seen in the pictures to testify
thereon; besides these persons were, at best, mere second cousins of
FRANCISCO. He likewise assails the various notes and letters written by his
relatives (Exhs. S to V) as they were not identified by the authors. Finally, he
stresses that MONINA did not testify as to the telephone cards (Exhs. G to L) nor
did these reveal the circumstances surrounding the calls she made from his
residence.

Anent the fourth assigned error, FRANCISCO contends that the Court of Appeals'
interpretation of MONINA's affidavit of 21 September 1971 ran counter to Dequito

Page 232 of 349

v. Llamas,25 and overlooked that at the time of execution, MONINA was more than
25 years old and assisted by counsel.

As to the last assigned error, FRANCISCO bewails the Court of Appeals' failure to
consider the long and unexplained delay in the filing of the case.

In her comment, MONINA forcefully refuted FRANCISCO's arguments, leading

FRANCISCO to file his reply thereto.

On 20 November 1996, we gave due course to this petition and required the
parties to submit their respective memoranda, which they subsequently did.

A painstaking review of the evidence and arguments fails to support petitioner.

Before addressing the merits of the controversy, we first dispose of preliminary

matters relating to the applicable law and the guiding principles in paternity suits.
As to the former, plainly, the Family Code of the Philippines (Executive Order No.
209) governs the present controversy. As correctly cited by the Court of Appeals,
Uyguangco26 served as a judicial confirmation of Article 256 of the Family
Code27 regarding its retroactive effect unless there be impairment of vested
rights, which does not hold true here, it appearing that neither the putative parent
nor the child has passed away and the former having actually resisted the latter's
claim below.

Under Article 175 of the Family Code, illegitimate filiation, such as MONINA's,
may be established in the same way and on the same evidence as that of
legitimate children. Article 172 thereof provides the various forms of evidence by
which legitimate filiation is established, thus:

Art. 172. The filiation of legitimate children is established by any of the

following:

(1) The record of birth appearing in the civil register or a final

judgment; or

(2) An admission of legitimate filiation in a public document or

a private handwritten instrument signed by the parent
concerned.

In the absence of the foregoing evidence, the legitimate

filiation shall be proved by:

(1) The open and continuous possession of the status of a

legitimate child; or

Page 233 of 349

 (2) Any other means allowed by the Rules of Court and special laws.

This Article reproduces, with amendments, Articles 265, 266 and 267 of the Civil
Code.

For the success of an action to establish illegitimate filiation under the second
paragraph. which MONINA relies upon given that she has none of the evidence
mentioned in the first paragraph, a "high standard of proof" 28 is required.
Specifically, to prove open and continuous possession of the status of an
illegitimate child, there must be evidence of the manifestation of the permanent
intention of the supposed father to consider the child as his, by continuous and
clear manifestations of parental affection and care, which cannot be attributed to
pure charity. Such acts must be of such a nature that they reveal not only the
conviction of paternity, but also the apparent desire to have and treat the child as
such in all relations in society and in life, not accidentally, but continuously. 29

By "continuous" is meant uninterrupted and consistent, but does not require any
particular length of time.30

The foregoing standard of proof required to establish one's filiation is founded on

the principle that an order for recognition and support may create an
unwholesome atmosphere or may be an irritant in the family or lives of the
parties, so that it must be issued only if paternity or filiation is established by
clear and convincing evidence.31

The foregoing discussion, however, must be situated within the general rules on
evidence, in light of the burden of proof in civil cases, i.e., preponderance of
evidence, and the shifting of the burden of evidence in such cases. Simply put, he
who alleges the affirmative of the issue has the burden of proof, and upon the
plaintiff in a civil case, the burden of proof never parts. However, in the course of
trial in a civil case, once plaintiff makes out a prima facie case in his favor, the
duty or the burden of evidence shifts to defendant to controvert plaintiff's prima
facie case, otherwise, a verdict must be returned in favor of plaintiff. Moreover, in
civil cases, the party having the burden of proof must produce a preponderance
of evidence thereon, with plaintiff having to rely on the strength of his own
evidence and not upon the weakness of the defendant's. The concept of
"preponderance of evidence" refers to evidence which is of greater weight, or
more convincing, that which is offered in opposition to it; at bottom, it means
probability of truth.32

With these in mind, we now proceed to resolve the merits of the instant
controversy.

FRANCISCO's arguments in support of his first assigned error deserve scant

consideration. While it has been observed that unlawful intercourse will not be

Page 234 of 349

presumed merely from proof of an opportunity for such indulgence, 33 this does
not favor FRANCISCO. Akin to the crime of rape where, in most instances, the
only witnesses to the felony are the participants in the sexual act themselves, in
deciding paternity suits, the issue of whether sexual intercourse actually
occurred inevitably redounds to the victim's or mother's word, as against the
accused's or putative father's protestations. In the instant case, MONINA's
mother could no longer testify as to the fact of intercourse, as she had,
unfortunately, passed away long before the institution of the complaint for
recognition. But this did not mean that MONINA could no longer prove her
filiation. The fact of her birth and her parentage may be established by evidence
other than the testimony of her mother. The paramount question then is whether
MONINA's evidence is coherent, logical and natural. 34

The complaint stated that FRANCISCO had carnal knowledge of Pansay "by about
the end of 1945." We agree with MONINA that this was broad enough to cover the
fourth quarter of said year, hence her birth on 6 August 1946 could still be
attributed to sexual relations between FRANCISCO and MONINA's mother. In any
event, since it was established that her mother was still in the employ of
FRANCISCO at the time MONINA was conceived as determined by the date of her
birth, sexual contact between FRANCISCO and MONINA's mother was not at all
impossible, especially in light of the overwhelming evidence, as hereafter shown,
that FRANCISCO fathered MONINA, has recognized her as his daughter and that
MONINA has been enjoying the open and continuous possession of the status as
FRANCISCO's illegitimate daughter.

We readily conclude that the testimonial evidence offered by MONINA, woven by

her narration of circumstances and events that occurred through the years,
concerning her relationship with FRANCISCO, coupled with the testimonies of
her witnesses, overwhelmingly established the following facts:

1) FRANCISCO is MONINA's father and she was conceived at the time when
her mother was in the employ of the former;

2) FRANCISCO recognized MONINA as his child through his overt acts and
conduct which the Court of Appeals took pains to enumerate, thus:

[L]ike sending appellant to school, paying for her tuition fees,

school uniforms, books, board and lodging at the Colegio del
Sagrado de Jesus, defraying appellant's hospitalization
expenses, providing her with [a] monthly allowance, paying for
the funeral expenses of appellant's mother, acknowledging
appellant's paternal greetings and calling appellant his "Hija"
or child, instructing his office personnel to give appellant's
monthly allowance, recommending appellant to use his house
in Bacolod and paying for her long distance telephone calls,

Page 235 of 349

 having appellant spend her long distance telephone calls,
having appellant spend her vacation in his apartment in Manila
and also at his Forbes residence, allowing appellant to use his
surname in her scholastic and other records (Exhs Z, AA, AA-1
to AA-5, W & W-5) . . .

3) Such recognition has been consistently shown and manifested

throughout the years publicly, 35spontaneously, continuously and in an
uninterrupted manner.36

Accordingly, in light of the totality of the evidence on record, the second

assigned error must fail.

There is some merit, however, in the third assigned error against the probative
value of some of MONINA's documentary evidence.

MONINA's reliance on the certification issued by the Local Civil Registrar

concerning her birth (Exhs. E and F) is clearly misplaced. It is settled that a
certificate of live birth purportedly identifying the putative father is not competent
evidence as to the issue of paternity, when there is no showing that the putative
father had a hand in the preparation of said certificates, and the Local Civil
Registrar is devoid of authority to record the paternity of an illegitimate child
upon the information of a third person. 37 Simply put, if the alleged father did not
intervene in the birth certificate, e.g., supplying the information himself, the
inscription of his name by the mother or doctor or registrar is null and void; the
mere certificate by the registrar without the signature of the father is not proof of
voluntary acknowledgment on the latter's part. 38 In like manner, FRANCISCO's
lack of participation in the preparation of the baptismal certificates (Exhs. C and
D) and school records (Exhs. Z and AA) renders these documents incompetent to
prove paternity, the former being competent merely to prove the administration of
the sacrament of baptism on the date so specified. 39 However, despite the
inadmissibility of the school records per se to prove the paternity, they may be
admitted as part of MONINA's testimony to corroborate her claim that
FRANCISCO spent for her education.

We likewise disagree with the ruling of the Court of Appeals that the certificates
issued by the Local Civil Registrar and the baptismal certificates may be taken as
circumstantial evidence to prove MONINA's filiation. Since they are per
se inadmissible in evidence as proof of such filiation, they cannot be admitted
indirectly as circumstantial evidence to prove the same.

As to Exhibits "S," "T," "U" and "V," the various notes and letters written by
FRANCISCO's relatives, namely Mike Alano, Emilio Jison, Mariquit Lopez and
Fernando Lopez, respectively, allegedly attesting to MONINA's filiation, while
their due execution and authenticity are not in issue, 40 as MONINA witnessed the

Page 236 of 349

authors signing the documents, nevertheless, under Rule 130, Section 39, the
contents of these documents may not be admitted, there being no showing that
the declarants-authors were dead or unable to testify, neither was the relationship
between the declarants and MONINA shown by evidence other than the
documents in question.41 As to the admissibility of these documents under Rule
130, Section 40, however, this requires further elaboration.

Rule 130, Section 40, provides:

Sec. 40. Family reputation or tradition regarding pedigree. — The

reputation or tradition existing in a family previous to the controversy, in
respect to the pedigree of any one of its members, may be received in
evidence if the witness testifying thereon be also a member of the family,
either by consanguinity or affinity. Entries in family bibles or other family
books or charts, engravings on rings, family portraits and the like may be
received as evidence of pedigree. (emphasis supplied)

It is evident that this provision may be divided into two (2) parts: the portion
containing the first underscored clause which pertains to testimonial evidence,
under which the documents in question may not be admitted as the authors
thereof did not take the witness stand; and the section containing the second
underscored phrase. What must then be ascertained is whether Exhibits S to V,
as private documents, fall within the scope of the clause "and the like" as
qualified by the preceding phrase "[e]ntries in family bibles or other family books
or charts, engravings on rights [and] family portraits,"

We hold that the scope of the enumeration contained in the second portion of this
provision, in light of the rule of ejusdem generis, is limited to objects which are
commonly known as "family possessions," or those articles which represent, in
effect, a family's joint statement of its belief as to the pedigree of a
person.42These have been described as objects "openly exhibited and well known
to the family,"43 or those "which, if preserved in a family, may be regarded as
giving a family tradition." 44 Other examples of these objects which are regarded
as reflective of a family's reputation or tradition regarding pedigree are
inscriptions on tombstones,45 monuments or coffin plates.46

Plainly then, Exhibits S to V, as private documents not constituting "family

possessions" as discussed above, may not be admitted on the basis of Rule 130,
Section 40. Neither may these exhibits be admitted on the basis of Rule 130,
Section 41 regarding common reputation,47 it having been observed that:

[T]he weight of authority appears to be in favor of the theory that it is the

general repute, the common reputation in the family, and not the common
reputation in community, that is a material element of evidence going to
establish pedigree. . . . [Thus] matters of pedigree may be proved by

Page 237 of 349

 reputation in the family, and not by reputation in the neighborhood or
vicinity, except where the pedigree in question is marriage which may be
proved by common reputation in the community. 48

Their inadmissibility notwithstanding, Exhibits "S" to "V," inclusive, may, in like

manner as MONINA's school records, properly be admitted as part of her
testimony to strengthen her claim that, indeed, relatives of FRANCISCO
recognized her as his daughter.

We now direct our attention to MONINA's 21 September 1971 affidavit (Exh.

P/Exh. 2), subject of the fourth assigned error, where she attests that FRANCISCO
is not her father. MONINA contends that she signed it under duress, i.e., she was
jobless, had no savings and needed the money to support herself and finish her
studies. Moreover, she signed Exhibit P upon the advice of Atty. Divinagracia that
filiation could not be waived and that FRANCISCO's ploy would "boomerang"
upon him. On the other hand, FRANCISCO asserts that full credence should be
afforded Exhibit P as MONINA was already 25 years old at the time of its
execution and was advised by counsel; further, being a notarized document, its
genuineness and due execution could not be questioned. He relies on the
testimony of Jose Cruz, a partner at the accounting firm of Miller & Cruz, who
declared that he intervened in the matter as MONINA was spreading rumors about
her filiation within the firm, which might have had deleterious effects upon the
relationship between the firm and FRANCISCO.

On this issue, we find for MONINA and agree with the following observations of
the Court of Appeals:

Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial
court . . . does not hold sway in the face of [MONINA's] logical explanation
that she at first did agree to sign the affidavit which contained untruthful
statements. In fact, she promptly complained to [FRANCISCO] who,
however explained to her that the affidavit was only for the consumption of
his spouse . . .

At any rate, if [MONINA] were not his illegitimate daughter, it would have
been uncalled for, if not absurd, for [FRANCISCO] of his lawyer to have
secured [MONINA's] sworn statement . . . On the contrary, in asking
[MONINA] to sign the said affidavit at the cost of P15,000. [FRANCISCO]
clearly betrayed his intention to conceal or suppress his paternity of
[MONINA] . . .

Indeed, if MONINA were truly not FRANCISCO's illegitimate daughter, it would

have been unnecessary for him to have gone to such great lengths in order that
MONINA denounce her filiation. For as clearly established before the trial court
and properly appreciated by the Court of Appeals, MONINA had resigned from

Page 238 of 349

Miller & Cruz five (5) months prior to the execution of the sworn statement in
question, hence negating FRANCISCO's theory of the need to quash rumors
circulating within Miller & Cruz regarding the identity of MONINA's father. Hence,
coupled with the assessment of the credibility of the testimonial evidence of the
parties discussed above, it is evident that the standard to contradict a notarial
document, i.e. clear and convincing evidence and more than merely
preponderant, 49 has been met by MONINA

Plainly then, the burden of evidence fully shifted to FRANCISCO.

Two (2) glaring points in FRANCISCO's defense beg to be addressed: First, that
his testimony was comprised of mere denials, rife with bare, unsubstantiated
responses such as "That is not true," "I do not believe that," or "None that I
know." In declining then to lend credence to FRANCISCO's testimony, we resort
to a guiding principle in adjudging the credibility of a witness and the
truthfulness of his statements, laid down as early as 1921:

The experience of courts and the general observation of humanity teach us

that the natural limitations of our inventive faculties are such that if a
witness undertakes to fabricate and deliver in court a false narrative
containing numerous details, he is almost certain to fall into fatal
inconsistencies, to make statements which can be readily refuted, or to
expose in his demeanor the falsity of his message.

For this reason it will be found that perjurers usually confine themselves to
the incidents immediately related to the principal fact about which they
testify, and when asked about collateral facts by which their truthfulness
could be tested, their answers not infrequently take the stereotyped form of
such expressions as "I don't know" or "I don't remember." . . . 50

Second, the reasons for the dismissals of Tingson, Baylosis and Savariz were
unspecified or likewise unsubstantiated, hence FRANCISCO's attempt to prove ill-
motive on their part to falsely testify in MONINA's favor may not succeed. As may
be gleaned, the only detail which FRANCISCO could furnish as to the
circumstances surrounding the dismissals of his former employees was that
Baylosis allegedly "took advantage of his position" while FRANCISCO was in the
United States. But aside from this bare claim, FRANCISCO's account is barren,
hence unable to provide the basis for a finding of bias against FRANCISCO on the
part of his former employees.

As to FRANCISCO's other witnesses, nothing substantial could be obtained

either. Nonito Jalandoni avowed that he only came to know of MONINA in June
1988;51 that during his employment at Nelly Garden from 1963 up to 1974, he did
not recall ever having seen MONINA there, neither did he know of any
instructions from FRANCISCO nor Mr. Lagarto (FRANCISCO's office manager

Page 239 of 349

before passing away) regarding the disbursement of MONINA's
52
allowance.  Teodoro Zulla corroborated Jalandoni's testimony regarding not
having seen MONINA at Nelly Garden and MONINA's allowance; declared that
Alfredo Baylosis was dismissed due to discrepancies discovered after an audit,
without any further elaboration, however; but admitted that he never prepared the
vouchers pertaining to FRANCISCO's personal expenses, merely those intended
for one of FRANCISCO's haciendas.53 Then, Iñigo Superticioso confirmed that
according to the report of a certain Mr. Atienza, Baylosis "was dismissed by Mr.
Jison for irregularities," while Superticioso was informed by FRANCISCO that
Tingson was dismissed for loss of confidence. Superticioso likewise denied that
MONINA received money from FRANCISCO's office, neither was there a standing
order from FRANCISCO to release funds to her. 54

It is at once obvious that the testimonies of these witnesses for FRANCISCO are
likewise insufficient to overcome MONINA's evidence. The former merely consist
of denials as regards the latter's having gone to Nelly Garden or having received
her allowance from FRANCISCO's office, which, being in the form of negative
testimony, necessarily stand infirm as against positive testimony; 55 bare
assertions as regards the dismissal of Baylosis; ignorance of FRANCISCO's
personal expenses incapable of evincing that FRANCISCO did not provide
MONINA with an allowance; or hearsay evidence as regards the cause for the
dismissals of Baylosis and Tingson. But what then serves as the coup de grace is
that despite Superticioso's claim that he did not know MONINA, 56 when
confronted with Exhibit H, a telephone toll ticket indicating that on 18 May 1971,
MONINA called a certain "Eñing" at FRANCISCO's office, Superticioso admitted
that his nickname was "Iñing" and that there was no other person named "Iñing"
in FRANCISCO's office.57

All told, MONINA's evidence hurdled "the high standard of proof" required for the
success of an action to establish one's illegitimate filiation when relying upon the
provisions regarding "open and continuous possession'' or "any other means
allowed by the Rules of Court and special laws;" moreover, MONINA proved her
filiation by more than mere preponderance of evidence.

The last assigned error concerning laches likewise fails to convince. The
essential elements of laches are: (1) conduct on the part of the defendant, or of
one under whom he claims, giving rise to the situation of which the complaint
seeks a remedy; (2) delay in asserting the complainant's rights, the complainant
having had knowledge or notice of the defendant's conduct as having been
afforded an opportunity to institute a suit; (3) lack of knowledge or notice on the
part of the defendant that the complaint would assert the right in which he bases
his suit; and (4) injury or prejudice to the defendant in the event relief is accorded
to the complaint, or the suit is not held barred. 58 The last element is the origin of
the doctrine that sale demands apply only where by reason of the lapse of time it
would be inequitable to allow a party to enforce his legal rights. 59

Page 240 of 349

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

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

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

Page 241 of 349

G.R. No. 132164             October 19, 2004
CIVIL SERVICE COMMISSION, petitioner, 
vs.
ALLYSON BELAGAN, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:

When the credibility of a witness is sought to be impeached by proof of his

reputation, it is necessary that the reputation shown should be that which existed
before the occurrence of the circumstances out of which the litigation arose,1 or
at the time of the trial and prior thereto, but not at a period remote from the
commencement of the suit.2This is because a person of derogatory character or
reputation can still change or reform himself.

For our resolution is the petition for review on certiorari of the Court of Appeals’
Decision3 dated January 8, 1998, in CA-G.R. SP. No. 44180, the dispositive
portion of which reads:

"WHEREFORE, Resolution No. 966213 dated September 23, 1996 and

Resolution No. 972423 dated April 11, 1997 of the respondent Civil
Service Commission are hereby set aside. The complaint against petitioner
Allyson Belagan filed by Magdalena Gapuz is hereby DISMISSED.

The dismissal of petitioner Belagan is lifted and he is hereby ordered to be

immediately reinstated to his position without loss of seniority, retirement,
backwages and other rights and benefits.

SO ORDERED."

The instant case stemmed from two (2) separate complaints filed respectively by
Magdalena Gapuz, founder/directress of the "Mother and Child Learning Center,"
and Ligaya Annawi, a public school teacher at Fort Del Pilar Elementary School,
against respondent Dr. Allyson Belagan, Superintendent of the Department of
Education, Culture and Sports (DECS), all from Baguio City. Magdalena charged
respondent with sexual indignities and harassment, while Ligaya accused him of
sexual harassment and various malfeasances.

Magdalena’s sworn complaint alleges that sometime in March 1994, she filed an
application with the DECS Office in Baguio City for a permit to operate a pre-
school. One of the requisites for the issuance of the permit was the inspection of
the school premises by the DECS Division Office. Since the officer assigned to
conduct the inspection was not present, respondent volunteered his services.

Page 242 of 349

Sometime in June 1994, respondent and complainant visited the school. In the
course of the inspection, while both were descending the stairs of the second
floor, respondent suddenly placed his arms around her shoulders and kissed her
cheek. Dumbfounded, she muttered, "Sir, is this part of the inspection? Pati ba
naman kayo sa DECS wala ng values?" Respondent merely sheepishly smiled.
At that time, there were no other people in the area.

Fearful that her application might be jeopardized and that her husband might
harm respondent, Magdalena just kept quiet.

Several days later, Magdalena went to the DECS Division Office and asked
respondent, "Sir, kumusta yung application ko?" His reply was "Mag-date muna
tayo." She declined, explaining that she is married. She then left and reported the
matter to DECS Assistant Superintendent Peter Ngabit.

Magdalena never returned to the DECS Division Office to follow up her

application. However, she was forced to reveal the incidents to her husband
when he asked why the permit has not yet been released. Thereupon, they went
to the office of the respondent. He merely denied having a personal relationship
with Magdalena.

Thereafter, respondent forwarded to the DECS Regional Director his

recommendation to approve Magdalena’s application for a permit to operate a
pre-school.

Sometime in September 1994, Magdalena read from a local newspaper that

certain female employees of the DECS in Baguio City were charging a high-
ranking DECS official with sexual harassment. Upon inquiry, she learned that the
official being complained of was respondent. She then wrote a letter-complaint
for sexual indignities and harassment to former DECS Secretary Ricardo Gloria.

On October 4, 1994, respondent was placed under suspension.

On the part of Ligaya Annawi, she alleged in her complaint that on four separate
occasions, respondent touched her breasts, kissed her cheek, touched her
groins, embraced her from behind and pulled her close to him, his organ pressing
the lower part of her back.

Ligaya also charged respondent with: (1) delaying the payment of the teachers’

salaries; (2) failing to release the pay differentials of substitute
teachers; (3) willfully refusing to release the teachers’ uniforms, proportionate

Page 243 of 349

allowances and productivity pay; and (4) failing to constitute the Selection and
Promotion Board, as required by the DECS rules and regulations.

The DECS conducted a joint investigation of the complaints of Magdalena and

Ligaya. In his defense, respondent denied their charge of sexual harassment.
However, he presented evidence to disprove Ligaya’s imputation of dereliction of
duty.

On January 9, 1995, the DECS Secretary rendered a Joint Decision4 finding

respondent guilty of four (4) counts of sexual "indignities or harassments"
committed against Ligaya; and two (2) counts of "sexual advances or indignities"
against Magdalena. He was ordered dismissed from the service. The dispositive
portion of the Joint Decision reads:

"WHEREFORE, foregoing disquisitions duly considered, decision is hereby

rendered in the two above-entitled cases, finding:

a) Respondent Dr. Allyson Belagan, Superintendent of the DECS

Baguio City Schools Division GUILTY of the four counts of sexual
indignities or harassments committed against the person and honor
of complainant Miss Ligaya Annawi, a Baguio City public school
teacher, while in the performance of his official duties and taking
advantage of his office. He is, however, ABSOLVED of all the other
charges of administrative malfeasance or dereliction of duty.

b) Respondent Baguio City Superintendent Allyson Belagan likewise

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

Consequently, respondent Allyson Belagan is HEREBY ORDERED

DISMISSED from the government service, with prejudice to reinstatement
and all his retirement benefits and other remunerations due him are
HEREBY DECLARED FORFEITED in favor of the government.

SO ORDERED."5

Upon appeal, the Civil Service Commission (CSC), on September 23, 1996,
promulgated Resolution No. 9662136affirming the Decision of the DECS
Secretary in the case filed by Magdalena but dismissing the complaint of Ligaya.

Page 244 of 349

The CSC ruled that respondent’s transgression against Magdalena constitutes
grave misconduct. Thus:

"The acts of Belagan are serious breach of good conduct since he was
holding a position which requires the incumbent thereof to maintain a high
degree of moral uprightness. As Division Superintendent, Belagan
represents an institution tasked to mold the character of children.
Furthermore, one of his duties is to ensure that teachers in his division
conduct themselves properly and observe the proper discipline. Any
improper behavior on his part will seriously impair his moral ascendancy
over the teachers and students which can not be tolerated. Therefore, his
misconduct towards an applicant for a permit to operate a private
pre-school cannot be treated lightly and constitutes the offense of
grave misconduct.

WHEREFORE, respondent Allyson Belagan is hereby found guilty

of grave misconduct and imposed the penalty of DISMISSAL from the
service with all the accessory penalties. The decision of the DECS
Secretary is modified accordingly."7

On October 29, 1996, respondent seasonably filed a motion for reconsideration,

contending that he has never been charged of any offense in his thirty-seven (37)
years of service. By contrast, Magdalena was charged with several offenses
before the Municipal Trial Court (MTC) of Baguio City, thus:

"1. Criminal Case No. 43416 for LIGHT ORAL DEFAMATION (December
3, 1980)
2. Criminal Case No. 45629 for SLIGHT PHYSICAL INJURIES (May 13,
1982)
3. Criminal Case No. 45630 for GRAVE THREATS (May 13, 1982)
4. Criminal Case No. 45914 for GRAVE THREATS (June 24, 1982)
5. Criminal Case No. 51532 for MALICIOUS MISCHIEF (January 25,
1985)
6. Criminal Case No. 51533 for LIGHT THREATS (January 25, 1985)
7. Criminal Case No. 51556 for GRAVE ORAL DEFAMATION (January 30,
1985)
8. Criminal Case No. 51818 for LIGHT ORAL DEFAMATION (March 18,
1985)
9. Criminal Case No. 51819 for GRAVE ORAL DEFAMATION (March 18,
1985)
10. Criminal Case No. 51820 for MALICIOUS MISCHIEF (March 18, 1985)
11. Criminal Case No. 51821 for UNJUST VEXATION (March 18, 1985)

Page 245 of 349

 12. Criminal Case No. 62173 for UNJUST VEXATION (May 29, 1991)
13. Criminal Case No. 62172 for GRAVE ORAL DEFAMATION (May 29,
1991)
14. Criminal Case No. 62754 for GRAVE ORAL DEFAMATION (December
2, 1986)
15. Criminal Case No. 55642 for GRAVE ORAL DEFAMATION (December
2, 1986)
16. Criminal Case No. 55423 for GRAVE ORAL DEFAMATION (October
24, 1986)
17. Criminal Case No. 55846 for GRAVE ORAL DEFAMATION (November
4, 1986)
18. Criminal Case No. 55800 for GRAVE ORAL DEFAMATION (January 7,
1987)
19. Criminal Case No. 57312 for UNJUST VEXATION (November 29,
1987)
20. Criminal Case No. 55643 for SLIGHT PHYSICAL INJURIES
(December 13, 1985)
21. Criminal Case No. 53404 for UNJUST VEXATION (December 13,
1985)
22. Criminal Case No. 55422 for UNJUST VEXATION (October 24, 1986)"8
In addition, the following complaints against Magdalena were filed with the
Barangay Chairmen of Barangay Gabriela Silang and Barangay Hillside, both in
Baguio City:
"1. Ordana vs. Gapuz (Brgy. Case No. 11-19-02-A) for GRAVE THREATS,
UNJUST VEXATION, RUMOR MONGERING
2. Teresita De Los Santos vs. Gapuz (Brgy. Case No. 86-8-26-8) for
GRAVE THREATS & ORAL DEFAMATION
3. Mrs. Conchita Ballesteros vs. Gapuz (Brgy. Case No. 029) for ORAL
DEFAMATION and FALSE ACCUSATION
4. Mrs. Clara Baoas vs. Gapuz (Brgy. Case No. 030) for HARASSMENT
and THREATS
5. GABRIELA SILANG TANOD FORCES vs. Gapuz (Case No. 031) for
HABITUAL TROUBLE MAKER
6. Pablo Ortiz vs. Gapuz (November 1, 1979) for ORAL DEFAMATION
7. C. Ballesteros vs. Gapuz (September 11, 1978) for ORAL
DEFAMATION
8. Mrs. Liza Ancheta vs. Gapuz (September 27, 1978) for RUMOR
MONGERING
9. Mr. Pananin (Beneco Personnel) (October 8, 1978) for ORAL
DEFAMATION

Page 246 of 349

 10. Mrs. Minda Valdez vs. Gapuz (November 6, 1978) for ORAL
DEFAMATION
11. WOMEN’S CLUB vs. GAPUZ (February 9, 1979) for ORAL
DEFAMATION
12. Vistro Salcedo case (May 8, 1979)
      Where Mrs. Gapuz was spreading rumors against Barangay Captain
and Police Chief
13. Demolition Scandal (May 10, 1979)
      Where she called all the residents of their Barangay for an emergency
meeting and where she shouted invectives against the residents
14. Incident of June 13, 1979
      Mrs. Gapuz shouted invectives against the Barangay Sanitary
Inspector
15. Incident of August 25, 1979
      Mrs. Gapuz shouted invectives against the servants of Mr. De Leon
16. Incident of August 26, 1979
      Mrs. Gapuz terrorized the council meeting
17. Incident of September 2, 1978
      Mrs. Clara Baoas was harassed by Mrs. Gapuz
18. Incident of September 9, 1979
      Mrs. Gapuz quarreled with Mrs. C. Ballesteros during the council
meeting
19. Incident of September 10, 1979
      Mrs. Gapuz was hurling invectives along her alley in the early morning
20. Incident of September 13, 1979
      Mrs. Gapuz tapped electric wire from Mrs. Tessie de los Santos with
the latter’s consent
21. Incident of September 21, 1979
      Mrs. Gapuz was shouting and hurling invectives scandalously around
her residence
22. Incident of September 21, 1979
      Mrs. Gapuz was shouting, complaining about alleged poisoned
sardines near the premises of her residence which killed her hen.
23. Incident of September 23, 1979
      Mrs. Gapuz was shouting unpleasant words around the neighborhood.
She did not like the actuations of a bayanihan group near the waiting
shed."9
Respondent claimed that the numerous cases filed against Magdalena cast
doubt on her character, integrity, and credibility.

Page 247 of 349

In its Resolution No. 97242310 dated April 11, 1997, the CSC denied respondent’s
motion for reconsideration, holding that:

"The character of a woman who was the subject of a sexual assault is of

minor significance in the determination of the guilt or innocence of the
person accused of having committed the offense. This is so because even
a prostitute or a woman of ill repute may become a victim of said offense.

As such, the fact that complainant Magdalena Gapuz is shown to have had
cases before the regular courts for various offenses and was condemned
by her community for wrongful behavior does not discount the possibility
that she was in fact telling the truth when she cried about the lecherous
advances made to her by the respondent. x x x"

Respondent then filed with the Court of Appeals a petition for review. As stated
earlier, it reversed the CSC Resolutions and dismissed Magdalena’s complaint.

The Appellate Court held that Magdalena is an unreliable witness, her character
being questionable. Given her aggressiveness and propensity for trouble, "she is
not one whom any male would attempt to steal a kiss." In fact, her "record
immediately raises an alarm in any one who may cross her path."11 In absolving
respondent from the charges, the Appellate Court considered his "unblemished"
service record for 37 years.

Unsatisfied, the CSC, through the Solicitor General, filed the instant petition
raising the following assignments of error:

"I. The Supreme Court may rule on factual issues raised on appeal where
the Court of Appeals misappreciated the facts. Furthermore, where the
findings of the Court of Appeals and the trial court are contrary to each
other, the Supreme Court may review the record and evidence. The Court
of Appeals erred in not giving credence to the testimony of complainant
Magdalena Gapuz despite convincing and overwhelming signs of its
truthfulness.

II. The Court of Appeals committed reversible error when it failed to give
due weight to the findings of the DECS, which conducted the
administrative investigation, specifically with respect to the credibility of the
witnesses presented.

Page 248 of 349

 III. The Court of Appeals erred in ruling that respondent should be
penalized under Sec. 22 (o) of the Omnibus Rules Implementing Book V
and not Sec. 22 (e) of said rules."12

In his comment, respondent maintains that Magdalena’s derogatory record

undermines the verity of her charge and that the Court of Appeals is correct in
dismissing it.

The petition is impressed with merit.

The pivotal issue before us is whether complaining witness, Magdalena Gapuz,

is credible. This is a question of fact which, as a general rule, is not subject to
this Court’s review.

It is a rule of long standing that factual findings of the Court of Appeals, if

supported by substantial evidence, are conclusive and binding on the parties and
are not reviewable by this Court.13 This Court is, after all, not a trier of facts. One
of the exceptions, however, is when the findings of the Court of Appeals are
contrary to those of the trial court or a quasi-judicial body, like petitioner herein.14

Here, the Court of Appeals and the CSC are poles apart in their appreciation of
Magdalena’s derogatory record. While the former considered it of "vital and
paramount importance" in determining the truth of her charge, the latter
dismissed it as of "minor significance." This contrariety propels us to the elusive
area of character and reputation evidence.

Generally, the character of a party is regarded as legally irrelevant in determining

a controversy.15 One statutory exception is that relied upon by respondent, i.e.,
Section 51 (a) 3, Rule 130 of the Revised Rules on Evidence, which we quote
here:

"SEC. 51. Character evidence not generally admissible; exceptions. –

(a) In Criminal Cases:

xxx     xxx

(3) The good or bad moral character of the offended party may
be proved if it tends to establish in any reasonable degree the
probability or improbability of the offense charged."

Page 249 of 349

It will be readily observed that the above provision pertains only to criminal
cases, not to administrative offenses. And even assuming that this technical rule
of evidence can be applied here, still, we cannot sustain respondent’s posture.

Not every good or bad moral character of the offended party may be proved
under this provision. Only those which would establish the probability or
improbability of the offense charged. This means that the character evidence
must be limited to the traits and characteristics involved in the type of offense
charged.16 Thus, on a charge of rape - character for chastity, on a charge of
assault - character for peaceableness or violence, and on a charge of
embezzlement - character for honesty.17 In one rape case, where it was
established that the alleged victim was morally loose and apparently uncaring
about her chastity, we found the conviction of the accused doubtful.18

In the present administrative case for sexual harassment, respondent did not
offer evidence that has a bearing on Magdalena’s chastity. What he presented
are charges for grave oral defamation, grave threats, unjust vexation, physical
injuries, malicious mischief, etc. filed against her. Certainly, these pieces of
evidence are inadmissible under the above provision because they do not
establish the probability or improbability of the offense charged.

Obviously, in invoking the above provision, what respondent was trying to

establish is Magdalena’s lack of credibility and not the probability or the
improbability of the charge. In this regard, a different provision applies.

Credibility means the disposition and intention to tell the truth in the testimony
given. It refers to a person’s integrity, and to the fact that he is worthy of
belief.19 A witness may be discredited by evidence attacking his general
reputation for truth,20 honesty21 or integrity.22 Section 11, Rule 132 of the same
Revised Rules on Evidence reads:

"SEC. 11. Impeachment of adverse party’s witness. –A witness may be

impeached by the party against whom he was called, by contradictory
evidence, by evidence that his general reputation for truth, honesty, or
integrity is bad, or by evidence that he has made at other times
statements inconsistent with his present testimony, but not by evidence
of particular wrongful acts, except that it may be shown by the
examination of the witness, or the record of the judgment, that he has
been convicted of an offense."

Although she is the offended party, Magdalena, by testifying in her own behalf,
opened herself to character or reputation attack pursuant to the principle that a

Page 250 of 349

party who becomes a witness in his own behalf places himself in the same
position as any other witness, and may be impeached by an attack on his
character or reputation.23

With the foregoing disquisition, the Court of Appeals is correct in holding that the
character or reputation of a complaining witness in a sexual charge is a proper
subject of inquiry. This leads us to the ultimate question – is Magdalena’s
derogatory record sufficient to discredit her credibility?

A careful review of the record yields a negative answer.

First, most of the twenty-two (22) cases filed with the MTC of Baguio City relate
to acts committed in the 80’s, particularly, 1985 and 1986. With respect to the
complaints filed with the Chairmen of Barangay Gabriela Silang and Barangay
Hillside, the acts complained of took place in 1978 to 1979. In the instant
administrative case, the offense was committed in 1994. Surely, those cases and
complaints are no longer reliable proofs of Magdalena’s character or reputation.
The Court of Appeals, therefore, erred in according much weight to such
evidence. Settled is the principle that evidence of one’s character or reputation
must be confined to a time not too remote from the time in question.24 In other
words, what is to be determined is the character or reputation of the person at
the time of the trial and prior thereto, but not at a period remote from the
commencement of the suit.25 Hence, to say that Magdalena’s credibility is
diminished by proofs of tarnished reputation existing almost a decade ago is
unreasonable. It is unfair to presume that a person who has wandered from the
path of moral righteousness can never retrace his steps again. Certainly, every
person is capable to change or reform.

Second, respondent failed to prove that Magdalena was convicted in any of the
criminal cases specified by respondent. The general rule prevailing in a great
majority of jurisdictions is that it is not permissible to show that a witness has
been arrested or that he has been charged with or prosecuted for a criminal
offense, or confined in jail for the purpose of impairing his credibility.26 This view
has usually been based upon one or more of the following grounds or theories:
(a) that a mere unproven charge against the witness does not logically tend to
affect his credibility, (b) that innocent persons are often arrested or accused of a
crime, (c) that one accused of a crime is presumed to be innocent until his guilt is
legally established, and (d) that a witness may not be impeached or discredited
by evidence of particular acts of misconduct.27 Significantly, the same Section 11,
Rule 132 of our Revised Rules on Evidence provides that a witness may not be
impeached by evidence of particular wrongful acts. Such evidence is rejected
because of the confusion of issues and the waste of time that would be involved,

Page 251 of 349

and because the witness may not be prepared to expose the falsity of such
wrongful acts.28 As it happened in this case, Magdalena was not able to explain
or rebut each of the charges against her listed by respondent.

But more than anything else, what convinces us to sustain the Resolution of the
CSC is the fact that it is supported by substantial evidence. As aptly pointed out
by the Solicitor General, Magdalena testified in a straightforward, candid and
spontaneous manner. Her testimony is replete with details, such as the number
of times she and respondent inspected the pre-school, the specific part of the
stairs where respondent kissed her, and the matter about her transient boarders
during summer. Magdalena would not have normally thought about these details
if she were not telling the truth. We quote her testimony during the cross-
examination conducted by DECS Assistant Secretary Romeo Capinpin and
Undersecretary Antonio Nachura, thus:

"Q Was there any conversation between you and Dr. Belagan during the
inspection on the first floor and the second floor?

A There was, sir. It was a casual conversation that we had with regard to
my family, background, how the school came about, how I started with the
project. That was all, sir.

Q Nothing about any form of sexual harassment, in words or in deeds?

A Sir, because he inspected the second floor twice, sir. We went up to the
stairs twice, sir.

Q Why?

A I really don’t know what was the reason behind, sir. But on the second
inspection, sir, I told him that as of that time I had some transients with me.
I was making use of the premises for transients because that was summer
then, sir. And I already started paying the place so I said, ‘Sir, I have some
transients with me in the evening’ and he said, You know Mrs. Gapuz, I am
interested to stay in one of the rooms as one your boarders. But I
respectfully declined saying, ‘Sir, I think for delicadeza I cannot accept you.
Not that I don’t want you to be here but people might think that I am
keeping you here and that would prejudice my permit, sir.’

ASEC R. CAPINPIN:

Page 252 of 349

Q When did the alleged kissing occur? Was it during the first time that you
went up with him or the second time?

A No, sir, on the second time, sir.

Q Second time?

A Yes, sir. We were going down, sir.

Q And you were going down?

A Yes, sir.

Q Do you recall what portion of the stairs where you were during the
alleged kissing?

A Sir, on the topmost of the stairs.

Q Before you went down?

A Yes, sir. At the topmost because there is a base floor going up to the
stairs and it has 16 steps.

Q So, it was not on the 16th step but still on the topmost?

A Yes sir.

Q Part of the floor of the building?

A Yes, sir. Topmost, sir?

ASEC R. CAPINPIN:

Q Will you kindly tell us your relative position at that time?

A Sir, on the second time that we went up and I mentioned about these
transients that I had then and he wanted to stay in the place in one of the
rooms and then I declined and I was still showing the rooms
simultaneously. On the last, the biggest room that I had, he said, ‘No.
Never mind, I am not going to see that anymore.’ So he waited for me
there and upon reaching the place, as I was to step down on the first step

Page 253 of 349

 going down, he placed his arm and held me tightly and planted the kiss on
my cheek, sir.

Q You said that he wanted to stay in one of the rooms?

A Yes, sir, as a boarder.

Q Is that room used for transients?

A During that time, sir, during the summertime, I made use of the time to
get some transients.

Q And he was telling you that he wanted to occupy one of the rooms?

A Yes, but I declined, sir for delicadeza.

Q At that time, there were no transients yet.

A When he came over for the inspection sir, nobody was there."29

The above testimony does not stand in isolation. It is corroborated by Peter

Ngabit, DECS Assistant Division Superintendent. Ngabit testified that Magdalena
reported to him that respondent kissed her and asked her for a "date."

"Q I would like to call your attention to Exhibit ‘A’ which is the affidavit of
Mrs. Magdalena B. Gapuz, particularly item no. 8, and may I read for your
information – ‘That the Monday after the incident, I went to the DECS
Division Office expecting to get favorable recommendation from the DECS
Regional Office for the issuance of my permit. That I proceeded to the
Superintendent and asked him, ‘Sir, kumusta ‘yung application ko’ and he
said, ‘mag date muna tayo’ but I refused and explained that I am married,
after which I proceeded to the Office of Asst. Superintendent Peter Ngabit
to relate the incident and then left the Division Office.’ Do you remember if
Mrs. Gapuz went to your Office on the particular day?

A Yes, sir.

Q What time was that?

A I cannot remember, sir.

Q Was it morning, afternoon?

Page 254 of 349

 A I think it was in the morning, sir.

Q Morning.

A Yes, sir.

Q Early morning?

A About noon, sir.

Q What transpired between you and Mrs. Gapuz in your office?

A When she came to my Office, she was relating about that and she was
even insulting me saying among others that I was a useless fixture in that
Office because I cannot do anything with the processing of her paper or
application.

Q It says here that she would relate the incident to you. Did she relate
any incident?

A Yes, she did sir.

Q What was that incident all about?

A She was saying that when Mr. Belagan went to visit her school, he
stole a kiss from her and that she was saying that when she asked
Supt. Belagan for her papers, she was asked for a date before the
Indorsement. After that, she left."30

With Magdalena’s positive testimony and that of Ngabit, how can we disregard
the findings of the DECS and the CSC? Surely, we cannot debunk it simply
because of the Court of Appeals’ outdated characterization of Magdalena as a
woman of bad reputation. There are a number of cases where the triers of fact
believe the testimony of a witness of bad character31 and refuse to believe one of
good character.32 As a matter of fact, even a witness who has been convicted a
number of times is worthy of belief, when he testified in a straightforward and
convincing manner.33

At this juncture, it bears stressing that more than anybody else, it is the DECS
investigating officials who are in a better position to determine whether
Magdalena is telling the truth considering that they were able to hear and
observe her deportment and manner of testifying.34

Page 255 of 349

In reversing the CSC’s Resolutions, the Court of Appeals ruled that "there is
ample evidence to show that Magdalena had a motive" in accusing respondent,
i.e., to pressure him to issue a permit. This is unconvincing. The record shows
that respondent had already issued the permit when Magdalena filed her letter-
complaint. Indeed, she had no more reason to charge respondent
administratively, except of course to vindicate her honor.

Petitioner prays that we sustain its ruling penalizing respondent for grave
misconduct and not merely for disgraceful or immoral conduct which is
punishable by suspension for six (6) months and one (1) day to one (1) year for
the first offense.35 Misconduct means intentional wrongdoing or deliberate
violation of a rule of law or standard of behavior, especially by a government
official.36 To constitute an administrative offense, misconduct should relate to or
be connected with the performance of the official functions and duties of a public
officer.37 In grave misconduct as distinguished from simple misconduct, the
elements of corruption, clear intent to violate the law or flagrant disregard of
established rule, must be manifest.38 Corruption as an element of grave
misconduct consists in the act of an official or fiduciary person who unlawfully
and wrongfully uses his station or character to procure some benefit for himself
or for another person, contrary to duty and the rights of others.39 This is
apparently present in respondent’s case as it concerns not only a stolen kiss but
also a demand for a "date," an unlawful consideration for the issuance of a permit
to operate a pre-school. Respondent’s act clearly constitutes grave misconduct,
punishable by dismissal.40

We are, however, not inclined to impose the penalty of dismissal from the
service. Respondent has served the government for a period of 37 years, during
which, he made a steady ascent from an Elementary Grade School Teacher to
Schools Division Superintendent. In devoting the best years of his life to the
education department, he received numerous awards.41 This is the first time he is
being administratively charged. He is in the edge of retirement. In fact, he had
filed his application for retirement when Magdalena filed her complaint. Section
16, Rule XIV, of the Rules Implementing Book V of Executive Order No. 292
provides:

"SEC. 16. In the determination of penalties to be imposed, mitigating and

aggravating circumstances may be considered. x x x."

The mitigating circumstances are enumerated in Section 53, Rule IV, of the
Uniform Rules on Administrative Cases in the Civil Service,42 which reads in part:

Page 256 of 349

 "SEC. 53. Extenuating, Mitigating, Aggravating, or Alternative
Circumstances. – In the determination of the penalties to be imposed,
mitigating, aggravating and alternative circumstances attendant to the
commission of the offense shall be considered.

The following circumstances shall be appreciated:

xxx     xxx

j. length of service

xxx     xxx

l. and other analogous cases."

Conformably with our ruling in a similar case of sexual harassment, 43 and

respondent’s length of service, unblemished record in the past and numerous
awards,44 the penalty of suspension from office without pay for one (1) year is in
order.

While we will not condone the wrongdoing of public officers and employees,
however, neither will we negate any move to recognize and remunerate their
lengthy service in the government.

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

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

Page 257 of 349

G.R. No. 172031               July 14, 2008
JUANITO TALIDANO, Respondents. 
vs.
FALCON MARITIME & ALLIED SERVICES, INC., SPECIAL EIGHTH DIVISION
OF THE COURT OF APPEALS, AND LABOR ARBITER ERMITA C.
CUYUGA, Petitioner,
DECISION
TINGA, J.:

This Petition for Certiorari1 under Rule 65 of the Rules of Court seeks to annul
the Decision2 and Resolution3 of the Court of Appeals, dated 16 November 2005
and 2 February 2006, respectively, which upheld the validity of the dismissal of
Juanito Talidano (petitioner). The challenged decision reversed and set aside the
Decision4 of the National Labor Relations Commission (NLRC) and reinstated
that of the Labor Arbiter.5

Petitioner was employed as a second marine officer by Falcon Maritime and

Allied Services, Inc. (private respondent) and was assigned to M/V Phoenix
Seven, a vessel owned and operated by Hansu Corporation (Hansu) which is
based in Korea. His one (1)-year contract of employment commenced on 15
October 1996 and stipulated the monthly wage at $900.00 with a fixed overtime
pay of $270.00 and leave pay of $75.00.6

Petitioner claimed that his chief officer, a Korean, always discriminated against
and maltreated the vessel’s Filipino crew. This prompted him to send a letter-
complaint to the officer-in-charge of the International Transport Federation (ITF)
in London, a measure that allegedly was resented by the chief officer.
Consequently, petitioner was dismissed on 21 January 1997. He filed a
complaint for illegal dismissal on 27 October 1999.7

Private respondent countered that petitioner had voluntarily disembarked the

vessel after having been warned several times of dismissal from service for his
incompetence, insubordination, disrespect and insulting attitude toward his
superiors. It cited an incident involving petitioner’s incompetence wherein the
vessel invaded a different route at the Osaka Port in Japan due to the absence of
petitioner who was then supposed to be on watch duty. As proof, it presented a
copy of a fax message, sent to it on the date of incident, reporting the vessel’s
deviation from its course due to petitioner’s neglect of duty at the bridge, 8 as well
as a copy of the report of crew discharge issued by the master of M/V Phoenix
Seven two days after the incident.9

Page 258 of 349

Private respondent stated that since petitioner lodged the complaint before the
Labor Arbiter two (2) years and nine (9) months after his repatriation, prescription
had already set in by virtue of Revised POEA Memorandum Circular No. 55,
series of 1996 which provides for a one-year prescriptive period for the institution
of seafarers’ claims arising from employment contract.10

On 5 November 2001, the Labor Arbiter rendered judgment dismissing

petitioner’s complaint, holding that he was validly dismissed for gross neglect of
duties. The Labor Arbiter relied on the fax messages presented by private
respondent to prove petitioner’s neglect of his duties, thus:

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

On appeal, the NLRC reversed the ruling of the Labor Arbiter and declared the
dismissal as illegal. The dispositive portion of the NLRC’s decision reads:

WHEREFORE, premises considered, the decision appealed from is hereby

reversed and set aside and a new one entered declaring the dismissal of the
complainant as illegal. Respondents Falcon Maritime & Allied Services, Inc. and
Hansu Corporation are hereby ordered to jointly and severally pay complainant
the amount equivalent to his three (3) months salary as a result thereof.12

The NLRC held that the fax messages in support of the alleged misbehavior and
neglect of duty by petitioner have no probative value and are self-serving. It
added that the ship’s logbook should have been submitted in evidence as it is the
repository of all the activities on board the vessel, especially those affecting the

Page 259 of 349

performance or attitude of the officers and crew members, and, more importantly,
the procedures preparatory to the discharge of a crew member. The NLRC also
noted that private respondent failed to comply with due process in terminating
petitioner’s employment.13

Private respondent moved for reconsideration,14 claiming that the complaint was

filed beyond the one-year prescriptive period. The NLRC, however, denied
reconsideration in a Resolution dated 30 August 2002.15 Rejecting the argument
that the complaint had already prescribed, it ruled:

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

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

September 2002 and that said resolution became final and executory on 7
October 2002.18

Private respondent brought the case to the Court of Appeals via a Petition for
Certiorari19 on 8 October 2002. The petition, docketed as CA-G.R. Sp. No. 73521,
was dismissed on technicality in a Resolution dated 29 October 2002. The
pertinent portion of the resolution reads:

(1) [T]he VERIFICATION AND CERTIFICATION OF NON-FORUM

SHOPPING was signed by one Florida Z. Jose, President of petitioner
Falcon Maritime and Allied Services, Inc., without proof that she is the duly
authorized representative of petitioner-corporation;

(2) [T]here is no affidavit of service of the petition to the National Labor

Relations Commission and to the adverse party;

(3) [T]here is no explanation to justify service by mail in lieu of the required

personal service. (Citations omitted)20

An entry of judgment was issued by the clerk of court on 23 November 2002

stating that the 29 October 2002 Resolution had already become final and
executory.21 Meanwhile, on 12 November 2002, private respondent filed another
petition before the Court of Appeals,22 docketed as CA G.R. SP No. 73790. This
is the subject of the present petition.

Page 260 of 349

Petitioner dispensed with the filing of a comment.23 In his
Memorandum,24 however, he argued that an entry of judgment having been
issued in CA-G.R. SP No. 73521, the filing of the second petition hinging on the
same cause of action after the first petition had been dismissed violates not only
the rule on forum shopping but also the principle of res judicata. He highlighted
the fact that the decision subject of the second petition before the Court of
Appeals had twice become final and executory, with entries of judgment made
first by the NLRC and then by the Court of Appeals.

The appellate court ultimately settled the issue of prescription, categorically

declaring that the one-year prescriptive period applies only to employment
contracts entered into as of 1 January 1997 and not those entered prior thereto,
thus:

x x x The question of prescription is untenable. Admittedly, POEA Memorandum

Circular [No.] 55 prescribing the standard terms of an employment contract of a
seafarer was in effect when the respondent was repatriated on January 21, 1997.
This administrative issuance was released in accordance with Department Order
[No.] 33 of the Secretary of Labor directing the revision of the existing Standard
Employment Contract to be effective by January 1, 1997. Section 28 of this
revised contract states: all claims arising therefrom shall be made within one year
from the date of the seafarer’s return to the point of hire.

It is crystal clear that the one-year period of prescription of claims in the revised
standard contract applies only to employment contracts entered into as of
January 1, 1997. If there is still any doubt about this, it should be removed by the
provision of Circular [No.] 55 which says that the new schedule of benefits to be
embodied in the standard contract will apply to any Filipino seafarer that will be
deployed on or after the effectivity of the circular.

The respondent was deployed before January 1, 1997. As acknowledged by the

petitioners, the rule prior to Circular [No.] 55 provided for a prescriptive period of
three years. We cannot avoid the ineluctable conclusion that the claim of the
respondent was filed within the prescriptive period.25

Despite ruling that prescription had not set in, the appellate court nonetheless
declared petitioner’s dismissal from employment as valid and reinstated the
Labor Arbiter’s decision.

The appellate court relied on the fax messages issued by the ship master shortly
after petitioner had committed a serious neglect of his duties. It noted that the
said fax messages constitute the res gestae. In defending the non-presentation

Page 261 of 349

of the logbook, it stated that three years had already passed since the incident
and Hansu was no longer the principal of private respondent.

Petitioner’s motion for reconsideration was denied. Hence he filed this instant
petition.

Citing grave abuse of discretion on the part of the Court of Appeals, petitioner
reiterates his argument that the appellate court should not have accepted the
second petition in view of the fact that a corresponding entry of judgment already
has been issued. By filing the second petition, petitioner believes that private
respondent has engaged in forum shopping.26

Private respondent, for its part, defends the appellate court in taking cognizance
of the second petition by stressing that there is no law, rule or decision that
prohibits the filing of a new petition for certiorari within the reglementary period
after the dismissal of the first petition due to technicality.27 It rebuts petitioner’s
charge of forum shopping by pointing out that the dismissal of the first petition
due to technicality has not ripened into res judicata, which is an essential
element of forum shopping.28

In determining whether a party has violated the rule against forum shopping, the
test to be applied is whether the elements of litis pendentia are present or
whether a final judgment in one case will amount to res judicata in the
other.29 This issue has been thoroughly and extensively discussed and correctly
resolved by the Court of Appeals in this wise:

The respondent’s two arguments essay on certain developments in the case

after the NLRC rendered its decision. He points out with alacrity that an entry of
judgment was issued twice – first by the NLRC with respect to its decision and
then by the Ninth Division of the Court of Appeals after it dismissed on technical
grounds the first petition for certiorari filed by the petitioner. Neither event, for
sure, militates against the institution of a second petition for certiorari. A decision
of the NLRC is never final for as long as it is the subject of a petition for certiorari
that is pending with a superior court. A contrary view only demeans our certiorari
jurisdiction and will never gain currency under our system of appellate court
review. It is more to the point to ask if a second petition can stand after the first is
dismissed, but under the particular circumstances in which the second was
brought, we hold that it can. The theory of res judicata invoked by the respondent
to bar the filing of the second petition does not apply. The judgment or final
resolution in the first petition must be on the merits for res judicata to inhere, and
it will not be on the merits if it is founded on a consideration of only technical or
collateral points. Yet this was exactly how the first petition was disposed of. SP

Page 262 of 349

73521 was dismissed as a result of the failure of the petitioner to comply with the
procedural requirements of a petition for certiorari. The case never touched base.
There was no occasion for the determination of the substantive rights of the
parties and, in this sense, the merits of the case were not involved. The petitioner
had actually the option of either refilling [sic] the case or seeking reconsideration
in the original action. It chose to file SP 73790 after realizing that it still had
enough time left of the original period of 60 days under Rule 65 to do so.

Since the dismissal of the first petition did not ripen into res judicata, it may not
be said that there was forum shopping with the filing of the second. The accepted
test for determining whether a party violated the rule against forum shopping
insofar as it is applicable to this setting is whether the judgment or final resolution
in the first case amounts to res judicata in the second. Res judicata is central to
the idea of forum shopping. Without it, forum shopping is non-existent. The
dismissal of the first petition, moreover, if it does not amount to res judicata, need
not be mentioned in the certification of non-forum shopping accompanying the
second action. The omission will not be fatal to the viability of the second case.
(Citations omitted)30

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

petition and avers that the issues raised by petitioner can only be dealt with
under Rule 45 of the Rules of Court.31 Against this thesis, petitioner submits that
the acceptance of the petition is addressed to the sound discretion of this Court.32

The proper remedy to assail decisions of the Court of Appeals involving final
disposition of a case is through a petition for review under Rule 45. In this case,
petitioner filed instead a certiorari petition under Rule 65. Notwithstanding this
procedural lapse, this Court resolves to rule on the merits of the petition in the
interest of substantial justice,33 the underlying consideration in this petition being
the arbitrary dismissal of petitioner from employment.

Petitioner submits that the Court of Appeals erred in relying merely on fax
messages to support the validity of his dismissal from employment. He maintains
that the first fax message containing the information that the vessel encroached
on a different route was a mere personal observation of the ship master and
should have thus been corroborated by evidence, and that these fax messages
cannot be considered as res gestae because the statement of the ship master
embodied therein is just a report. He also contends that he has not caused any
immediate danger to the vessel and that if he did commit any wrongdoing, the
incident would have been recorded in the logbook. Thus, he posits that the failure
to produce the logbook reinforces the theory that the fax messages have been
concocted to justify his unceremonious dismissal from employment. Hence, he

Page 263 of 349

believes that his dismissal from employment stemmed from his filing of the
complaint with the ITF which his superiors resented.34

Private respondent insists that the appellate court is correct in considering the fax
messages as res gestae statements. It likewise emphasizes that non-
presentment of the logbook is justified as the same could no longer be retrieved
because Hansu has already ceased to be its principal. Furthermore, it refutes the
allegation of petitioner that he was dismissed because he filed a complaint with
the ITF in behalf of his fellow crew members. It claims that petitioner’s allegation
is a hoax because there is no showing that the alleged complaint has been
received by the ITF and that no action thereon was ever taken by the ITF.35

Private respondent also asserts that petitioner was not dismissed but that he
voluntarily asked for his repatriation. This assertion, however, deserves scant
consideration. It is highly illogical for an employee to voluntarily request for
repatriation and then file a suit for illegal dismissal. As voluntary repatriation is
synonymous to resignation, it is proper to conclude that repatriation is
inconsistent with the filing of a complaint for illegal dismissal.36

The paramount issue therefore boils down to the validity of petitioner’s dismissal,
the determination of which generally involves a question of fact. It is not the
function of this Court to assess and evaluate the facts and the evidence again,
our jurisdiction being generally limited to reviewing errors of law that might have
been committed by the trial court or administrative agency. Nevertheless, since
the factual findings of the Court of Appeals and the Labor Arbiter are at variance
with those of the NLRC, we resolve to evaluate the records and the evidence
presented by the parties.37

The validity of an employee's dismissal hinges on the satisfaction of two

substantive requirements, to wit: (1) the dismissal must be for any of the causes
provided for in Article 282 of the Labor Code; and (2) the employee was
accorded due process, basic of which is the opportunity to be heard and to
defend himself.38

The Labor Arbiter held that petitioner’s absence during his watch duty when an
emergency call was received from the Japanese port authority that M/V Phoenix
Seven was "invading other route" constituted neglect of duty, a just cause for
terminating an employee. Records reveal that this information was related to
private respondent via two fax messages sent by the captain of M/V Phoenix
Seven. The first fax message dated 18 January 1997 is reproduced below:

Page 264 of 349

JUST RECEIVED PHONE CALL FROM MASTER N C/OFFICER THAT THEY
DECIDED TO DISCHARGE 2/OFFICER AT OSAKA PORT.

DUE TO MIS-BEHAVIOUR N RESEST [SIC] TO OFFICIAL ORDER.

CAPT. HAD RECEIVED EMERGENCY WARNING CALL FROM JAPAN BISAN

SETO NAIKAI RADIO AUTHORITY THAT SHIP IS INVADING OTHER ROUTE.

SO, HE WAS SURPRISED N CAME TO BRIDGE N FOUND 2/O NOT CARRY

OUT HIS WATCH DUTY.

MASTER SCOLD HIM ABOUT THIS N CORRECT HIS ERROR BUT HE

RESIST [SIC] THAT HE IS RIGHT AND THEN SAID THAT HE WILL COME
BACK HOME.

FURTHER MORE HE ASKED MASTER TO PAY HIM I.T.F. WAGE SCALE.

MASTER N/CIO STRONGLY ASKED US HIS REPATRIATION WITH I.E.U.

PLS. CONFIRM YOUR OPINION ON THIS HAPPENING.39

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

Section 42 of Rule 13040 of the Rules of Court mentions two acts which form part
of the res gestae, namely: spontaneous statements and verbal acts. In
spontaneous exclamations, the res gestae is the startling occurrence, whereas in
verbal acts, the res gestae are the statements accompanying the equivocal
act.41 We find that the fax messages cannot be deemed part of the res gestae.

To be admissible under the first class of res gestae, it is required that: (1) the
principal act be a startling occurrence; (2) the statements were made before the
declarant had the time to contrive or devise a falsehood; and (3) that the
statements must concern the occurrence in question and its immediate attending
circumstances.42

Assuming that petitioner’s negligence—which allegedly caused the ship to

deviate from its course—is the startling occurrence, there is no showing that the
statements contained in the fax messages were made immediately after the
alleged incident. In addition, no dates have been mentioned to determine if these

Page 265 of 349

utterances were made spontaneously or with careful deliberation. Absent the
critical element of spontaneity, the fax messages cannot be admitted as part of
the res gestae of the first kind.

Neither will the second kind of res gestae apply. The requisites for its
admissibility are: (1) the principal act to be characterized must be equivocal; (2)
the equivocal act must be material to the issue; (3) the statement must
accompany the equivocal act; and (4) the statements give a legal significance to
the equivocal act.43

Petitioner’s alleged absence from watch duty is simply an innocuous act or at

least proved to be one. Assuming arguendo that such absence was the equivocal
act, it is nevertheless not accompanied by any statement more so by the fax
statements adverted to as parts of the res gestae. No date or time has been
mentioned to determine whether the fax messages were made simultaneously
with the purported equivocal act.

Furthermore, the material contents of the fax messages are unclear. The matter
of route encroachment or invasion is questionable. The ship master, who is the
author of the fax messages, did not witness the incident. He obtained such
information only from the Japanese port authorities. Verily, the messages can be
characterized as double hearsay.

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

Petitioner’s supposed absence from watch duty in a single isolated instance is

neither gross nor habitual negligence. Without question, the alleged lapse did not
result in any untoward incident. If there was any serious aftermath, the incident
should have been recorded in the ship’s logbook and presented by private
respondent to substantiate its claim. Instead, private respondent belittled the
probative value of the logbook and dismissed it as self-serving. Quite the
contrary, the ship’s logbook is the repository of all activities and transactions on
board a vessel. Had the route invasion been so serious as to merit petitioner’s
dismissal, then it would have been recorded in the logbook. Private respondent
would have then had all the more reason to preserve it considering that vital
pieces of information are contained therein.

Page 266 of 349

In Haverton Shipping Ltd. v. NLRC,46 the Court held that the vessel’s logbook is
an official record of entries made by a person in the performance of a duty
required by law.47 In Abacast Shipping and Management Agency, Inc. v.
NLRC,48 a case cited by petitioner, the logbook is a respectable record that can
be relied upon to authenticate the charges filed and the procedure taken against
the employees prior to their dismissal.49 In Wallem Maritime Services, Inc. v.
NLRC,50 the logbook is a vital evidence as Article 612 of the Code of Commerce
requires the ship captain to keep a record of the decisions he had adopted as the
vessel's head.51 Therefore, the non-presentation of the logbook raises serious
doubts as to whether the incident did happen at all.

In termination cases, the burden of proving just or valid cause for dismissing an
employee rests on the employer.52Private respondent miserably failed to
discharge this burden. Consequently, the petitioner’s dismissal is illegal.

We also note that private respondent failed to comply with the procedural due
process requirement for terminating an employee. Such requirement is not a
mere formality that may be dispensed with at will. Its disregard is a matter of
serious concern since it constitutes a safeguard of the highest order in response
to man's innate sense of justice. The Labor Code does not, of course, require a
formal or trial type proceeding before an erring employee may be dismissed. This
is especially true in the case of a vessel on the ocean or in a foreign port. The
minimum requirement of due process in termination proceedings, which must be
complied with even with respect to seamen on board a vessel, consists of notice
to the employees intended to be dismissed and the grant to them of an
opportunity to present their own side of the alleged offense or misconduct, which
led to the management's decision to terminate. To meet the requirements of due
process, the employer must furnish the worker sought to be dismissed with two
written notices before termination of employment can be legally effected, i.e., (1)
a notice which apprises the employee of the particular acts or omissions for
which his dismissal is sought; and (2) the subsequent notice after due hearing
which informs the employee of the employer’s decision to dismiss him.53 1avvphi1

Private respondent’s sole reliance on the fax messages in dismissing petitioner is

clearly insufficient as these messages were addressed only to itself. No notice
was ever given to petitioner apprising him in writing of the particular acts showing
neglect of duty. Neither was he informed of his dismissal from employment.
Petitioner was never given an opportunity to present his side. The failure to
comply with the two-notice rule only aggravated respondent’s liability on top of
dismissing petitioner without a valid cause.

Page 267 of 349

Pursuant to Section 10 of Republic Act No. 804254 or the Migrant Worker’s Act,
employees who are unjustly dismissed from work are entitled to an amount
representing their three (3) months’ salary considering that their employment
contract has a term of exactly one (1) year plus a full refund of his placement fee,
with interest at 12% per annum.55

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

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

Page 268 of 349

G.R. No. 169606               November 27, 2009
BERNARDO B. JOSE, JR., Petitioner, 
vs.
MICHAELMAR PHILS., INC. and MICHAELMAR SHIPPING SERVICES,
INC., Respondents.
DECISION
CARPIO, J.:
The Case

This is a petition1 for review on certiorari under Rule 45 of the Rules of Court.

The petition challenges the 11 May 2005 Decision2 and 5 August 2005
Resolution3 of the Court of Appeals in CA-G.R. SP No. 83272. The Court of
Appeals set aside the 19 January4 and 22 March5 2004 Resolutions of the
National Labor Relations Commission (NLRC) in NLRC NCR CA No.
036666-03 and reinstated the 18 June 2003 Decision 6 of the Labor Arbiter in
NLRC NCR OFW Case No. (M)02-12-3137-00.

The Facts

Michaelmar Philippines, Inc. (MPI) is the Philippine agent of Michaelmar Shipping

Services, Inc. (MSSI). In an undertaking7 dated 2 July 2002 and an employment
contract8 dated 4 July 2002, MSSI through MPI engaged the services of
Bernardo B. Jose, Jr. (Jose, Jr.) as oiler of M/T Limar. The employment contract
stated:

That the employee shall be employed on board under the following terms and
conditions:

1.1 Duration of Contract EIGHT (8) MONTHS

Position OILER
US$ 450.00 & US$ 39.00 TANKER
Basic Monthly Salary
ALLOWANCE
Hours of Work 48 HOURS/WEEK
Overtime US$ 386.00 FIXED OT. 105 HRS/ MOS.
Vacation Leave with Pay US$ 190.00 & US$ 150 OWNERS BONUS
Point of Hire MANILA, PHILIPPINES9

Page 269 of 349

In connection with the employment contract, Jose, Jr. signed a
declaration10 dated 10 June 2002 stating that:

In order to implement the Drug and Alcohol Policy on board the managed vessels
the following with [sic] apply:

All alcoholic beverages, banned substances and unprescribed drugs including

but not limited to the following: Marijuana Cocaine Phencyclidine Amphetamines
Heroin Opiates are banned from Stelmar Tankers (Management) Ltd. managed
vessels.

Disciplinary action up to and including dismissal will be taken against any

employee found to be in possession of or impaired by the use of any of the
above mentioned substances.

A system of random testing for any of the above banned substances will be used
to enforce this policy. Any refusal to submit to such tests shall be deemed as a
serious breach of the employment contract and shall result to the seaman’s
dismissal due to his own offense.

Therefore any seaman will be instantly dismissed if:

xxx

They are found to have positive trace of alcohol or any of the banned substances
in any random testing sample.

Jose, Jr. began performing his duties on board the M/T Limar on 21 August
2002. On 8 October 2002, a random drug test was conducted on all officers and
crew members of M/T Limar at the port of Curacao. Jose, Jr. was found positive
for marijuana. Jose, Jr. was informed about the result of his drug test and was
asked if he was taking any medication. Jose, Jr. said that he was taking Centrum
vitamins.

Jose, Jr. was allowed to continue performing his duties on board the M/T Limar
from 8 October to 29 November 2002. In the Sea Going Staff Appraisal
Report11 on Jose Jr.’s work performance for the period of 1 August to 28
November 2002, Jose, Jr. received a 96% total rating and was described as very
hardworking, trustworthy, and reliable.

On 29 December 2002, M/T Limar reached the next port after the random drug
test and Jose, Jr. was repatriated to the Philippines. When Jose, Jr. arrived in the

Page 270 of 349

Philippines, he asked MPI that a drug test be conducted on him. MPI ignored his
request. On his own, Jose, Jr. procured drug tests from Manila Doctors
Hospital,12 S.M. Lazo Medical Clinic, Inc.,13 and Maritime Clinic for International
Services, Inc.14 He was found negative for marijuana.

Jose, Jr. filed with the NLRC a complaint against MPI and MSSI for illegal
dismissal with claim for his salaries for the unexpired portion of the employment
contract.

The Labor Arbiter’s Ruling

In her 18 June 2003 Decision, the Labor Arbiter dismissed the complaint for lack
of merit. The Labor Arbiter held that:

Based from the facts and evidence, this office inclined [sic] to rule in favor
of the respondents: we find that complainant’s termination from
employment was valid and lawful. It is established that complainant, after
an unannounced drug test conducted by the respondent principal on the
officers and crew on board the vessel, was found positive of marijuana, a
prohibited drug. It is a universally known fact the menace that drugs bring
on the user as well as to others who may have got on his way. It is noted
too that complainant worked on board a tanker vessel which carries toxic
materials such as fuels, gasoline and other combustible materials which
require delicate and careful handling and being an oiler, complainant is
expected to be in a proper disposition. Thus, we agree with respondents
that immediate repatriation of complainant is warranted for the safety of the
vessel as well as to complainant’s co-workers on board. It is therefore a
risk that should be avoided at all cost. Moreover, under the POEA Standard
Employment Contract as cited by the respondents (supra), violation of the
drug and alcohol policy of the company carries with it the penalty of
dismissal to be effected by the master of the vessel. It is also noted that
complainant was made aware of the results of the drug test as per Drug
Test Certificate dated October 29, 2002. He was not dismissed right there
and then but it was only on December 29, 2002 that he was repatriated for
cause.

As to the complainant’s contention that the ship doctor’s report can not be relied
upon in the absence of other evidence supporting the doctor’s findings for the
simple reason that the ship doctor is under the control of the principal employer,
the same is untenable. On the contrary, the findings of the doctor on board
should be given credence as he would not make a false clarification. Dr. A.R.A
Heath could not be said to have outrageously contrived the results of the

Page 271 of 349

complainant’s drug test. We are therefore more inclined to believe the original
results of the unannounced drug test as it was officially conducted on board the
vessel rather than the subsequent testing procured by complainant on his own
initiative. The result of the original drug test is evidence in itself and does not
require additional supporting evidence except if it was shown that the drug test
was conducted not in accordance with the drug testing procedure which is not
obtaining in this particular case. [H]ence, the first test prevails.

We can not also say that respondents were motivated by ill will against the
complainant considering that he was appraised to be a good worker. For this
reason that respondents would not terminate [sic] the services of complainant
were it not for the fact that he violated the drug and alcohol policy of the
company. [T]hus, we find that just cause exist [sic] to justify the termination of
complainant.15

Jose, Jr. appealed the Labor Arbiter’s 18 June 2003 Decision to the NLRC. Jose,
Jr. claimed that the Labor Arbiter committed grave abuse of discretion in ruling
that he was dismissed for just cause.

The NLRC’s Ruling

In its 19 January 2004 Resolution, the NLRC set aside the Labor Arbiter’s
18 June 2003 Decision. The NLRC held that Jose, Jr.’s dismissal was illegal
and ordered MPI and MSSI to pay Jose, Jr. his salaries for the unexpired
portion of the employment contract. The NLRC held that:

Here, a copy of the purported drug test result for Complainant indicates,
among others, the following typewritten words "Hoofd: Drs. R.R.L. Petronia
Apotheker" and "THC-COOH POS."; the handwritten word "Marihuana";
and the stamped words "Dr. A.R.A. Heath, MD", "SHIP’S DOCTOR" and "29
OKT. 2002." However, said test result does not contain any signature, much
less the signature of any of the doctors whose names were printed therein
(Page 45, Records). Verily, the veracity of this purported drug test result is
questionable, hence, it cannot be deemed as substantial proof that
Complainant violated his employer’s "no alcohol, no drug" policy. In fact,
in his November 14, 2002 message to Stelmar Tanker Group, the Master of
the vessel where Complainant worked, suggested that another drug test for
complainant should be taken when the vessel arrived [sic] in Curacao next
call for final findings (Page 33, Records), which is an indication that the
Master, himself, was in doubt with the purported drug test result. Indeed
there is reason for the Master of the vessel to doubt that Complainant was
taking in the prohibited drug "marihuana." The Sea Going Staff Appraisal

Page 272 of 349

Report signed by Appraiser David A. Amaro, Jr. and reviewed by the Master
of the vessel himself on complainant’s work performance as Wiper from
August 1, 2002 to November 28, 2002 which included a two-month period
after the purported drug test, indicates that out of a total score of 100% on
Safety Consciousness (30%), Ability (30%), Reliability (20%) and Behavior
& Attitude (20%), Complainant was assessed a score of 96% (Pages 30-31,
Records). Truly, a worker who had been taking in prohibited drug could not
have given such an excellent job performance. Significantly, under the
category "Behavior & Attitude (20%)," referring to his personal relationship
and his interactions with the rest of the ship’s staff and his attitude towards
his job and how the rest of the crew regard him, Complainant was
assessed the full score of 20% (Page 31, Records), which belies
Respondents’ insinuation that his alleged offense directly affected the
safety of the vessel, its officers and crew members. Indeed, if Complainant
had been a threat to the safety of the vessel, officers and crew members,
he would not be been [sic] allowed to continue working almost three (3)
months after his alleged offense until his repatriation on December 29,
2002. Clearly, Respondents failed to present substantial proof that
Complainant’s dismissal was with just or authorized cause.

Moreover, Respondents failed to accord Complainant due process prior to his

dismissal. There is no showing that Complainant’s employer furnished him with a
written notice apprising him of the particular act or omission for which his
dismissal was sought and a subsequent written notice informing him of the
decision to dismiss him, much less any proof that Complainant was given an
opportunity to answer and rebut the charges against him prior to his dismissal.
Worse, Respondents’ invoke the provision in the employment contract which
allows summary dismissal for cases provided therein. Consequently,
Respondents argue that there was no need for him to be notified of his dismissal.
Such blatant violation of basic labor law principles cannot be permitted by this
Office. Although a contract is law between the parties, the provisions of positive
law which regulate such contracts are deemed included and shall limit and
govern the relations between the parties (Asia World Recruitment, Inc. vs. NLRC,
G.R. No. 113363, August 24, 1999).

Relative thereto, it is worth noting Section 10 of Republic Act No. 8042, which
provides that "In cases of termination of overseas employment without just, valid
or authorized cause as defined by law or contract, the worker shall be entitled to
the full reimbursement of his placement fee with interest of twelve percent (12%)
per annum, plus his salaries for the unexpired portion of his employment contract
or for three (3) months for every year of the unexpired term, whichever is less."16

Page 273 of 349

MPI and MSSI filed a motion for reconsideration. In its 22 March 2004
Resolution, the NLRC denied the motion for lack of merit. MPI and MSSI
filed with the Court of Appeals a petition 17 for certiorari under Rule 65 of the
Rules of Court. MPI and MSSI claimed that the NLRC gravely abused its
discretion when it (1) reversed the Labor Arbiter’s factual finding that Jose,
Jr. was legally dismissed; (2) awarded Jose, Jr. his salaries for the
unexpired portion of the employment contract; (3) awarded Jose, Jr. $386
overtime pay; and (4) ruled that Jose, Jr. perfected his appeal within the
reglementary period.

The Court of Appeals’ Ruling

In its 11 May 2005 Decision, the Court of Appeals set aside the 19 January and
22 March 2004 Resolutions of the NLRC and reinstated the 18 June 2003
Decision of the Labor Arbiter. The Court of Appeals held that:

The POEA standard employment contract adverted to in the labor arbiter’s

decision to which all seamen’s contracts must adhere explicitly provides that the
failure of a seaman to obey the policy warrants a penalty of dismissal which may
be carried out by the master even without a notice of dismissal if there is a clear
and existing danger to the safety of the vessel or the crew. That the petitioners
were implementing a no-alcohol, no drug policy that was communicated to the
respondent when he embarked is not in question. He had signed a document
entitled Drug and Alcohol Declaration in which he acknowledged that alcohol
beverages and unprescribed drugs such as marijuana were banned on the
vessel and that any employee found possessing or using these substances
would be subject to instant dismissal. He undertook to comply with the policy and
abide by all the relevant rules and guidelines, including the system of random
testing that would be employed to enforce it.

We can hardly belabor the reasons and justification for this policy. The safety of
the vessel on the high seas is a matter of supreme and unavoidable concern to
all — the owners, the crew and the riding public. In the ultimate analysis, a vessel
is only as seaworthy as the men who sail it, so that it is necessary to maintain at
every moment the efficiency and competence of the crew. Without an effective
no alcohol, no drug policy on board the ship, the vessel’s safety will be seriously
compromised. The policy is, therefore, a reasonable and lawful order or
regulation that, once made known to the employee, must be observed by him,
and the failure or refusal of a seaman to comply with it should constitute serious
misconduct or willful disobedience that is a just cause for the termination of
employment under the Labor Code (Aparente vs. National Labor Relations
Commission, 331 SCRA 82). As the labor arbiter has discerned, the seriousness

Page 274 of 349

and earnestness in the enforcement of the ban is highlighted by the provision of
the POEA Standard Employment Contract allowing the ship master to forego the
notice of dismissal requirement in effecting the repatriation of the seaman
violating it.

xxxx

Under legal rules of evidence, not all unsigned documents or papers fail the test
of admissibility. There are kinds of evidence known as exceptions to the hearsay
rule which need not be invariably signed by the author if it is clear that it issues
from him because of necessity and under circumstances that safeguard the
trustworthiness of the paper. A number of evidence of this sort are called entries
in the course of business, which are transactions made by persons in the regular
course of their duty or business. We agree with the labor arbiter that the drug test
result constitutes entries made in the ordinary or regular course of duty of a
responsible officer of the vessel. The tests administered to the crew were routine
measures of the vessel conducted to enforce its stated policy, and it was a
matter of course for medical reports to be issued and released by the medical
officer. The ship’s physician at Curacao under whom the tests were conducted
was admittedly Dr. Heath. It was under his name and with his handwritten
comments that the report on the respondent came out, and there is no basis to
suspect that these results were issued other than in the ordinary course of his
duty. As the labor arbiter points out, the drug test report is evidence in itself and
does not require additional supporting evidence except if it appears that the drug
test was conducted not in accordance with drug testing procedures. Nothing of
the sort, he says, has even been suggested in this particular case.

The regularity of the procedure observed in the administration and reporting of

the tests is the very assurance of the report’s admissibility and credibility under
the laws of the evidence. We see no reason why it cannot be considered
substantial evidence, which, parenthetically, is the lowest rung in the ladder of
evidence. It is from the fact that a report or entry is a part of the regular routine
work of a business or profession that it derives its value as legal evidence.

Then the respondent was notified of the results and allowed to explain himself.
He could not show any history of medication that could account for the traces of
drugs in his system. Despite his lack of plausible excuses, the ship captain came
out in support of him and asked his superiors to give him another chance. These
developments prove that the respondent was afforded due process consistent
with the exigencies of his service at sea. For the NLRC to annul the process
because he was somehow not furnished with written notice is already being
pedantic. What is the importance to the respondent of the difference between a

Page 275 of 349

written and verbal notice when he was actually given the opportunity to be
heard? x x x

The working environment in a seagoing vessel is sui generis which amply

justifies the difference in treatment of seamen found guilty of serious infractions
at sea. The POEA Standard Employment Contract allows the ship master to
implement a repatriation for just cause without a notice of dismissal if this is
necessary to avoid a clear and existing danger to the vessel. The petitioners
have explained that that [sic] it is usually at the next port of call where the
offending crewman is made to disembark. In this case, a month had passed by
after the date of the medical report before they reached the next port. We may
not second-guess the judgment of the master in allowing him to remain at his
post in the meantime. It is still reasonable to believe that the proper safeguards
were taken and proper limitations observed during the period when the
respondent remained on board.

Finally, the fact that the respondent obtained negative results in subsequent drug
tests in the Philippines does not negate the findings made of his condition on
board the vessel. A drug test can be negative if the user undergoes a sufficient
period of abstinence before taking the test. Unlike the tests made at his instance,
the drug test on the vessel was unannounced. The credibility of the first test is,
therefore, greater than the subsequent ones.18

Jose, Jr. filed a motion19 for reconsideration. In its 5 August 2005 Resolution, the
Court of Appeals denied the motion for lack of merit. Hence, the present petition.

In a motion20 dated 1 August 2007, MPI and MSSI prayed that they be substituted
by OSG Ship Management Manila, Inc. as respondent in the present case. In a
Resolution21 dated 14 November 2007, the Court noted the motion.

The Issues

In his petition dated 13 September 2005, Jose, Jr. claims that he was illegally
dismissed from employment for two reasons: (1) there is no just cause for his
dismissal because the drug test result is unsigned by the doctor, and (2) he was
not afforded due process. He stated that:

2. The purported drug test result conducted to petitioner indicates, among others,
the following: [sic] typwritten words ‘Hool: Drs. R.R.L.. [sic] Petronia Apotheker"
[sic] and :THC-COOH POS." [sic]; the handwritten word "Marihuana"; and the
stamped words "Dr. A.R.A Heath, MD", "SHIP’S DOCTOR" and "29 OKT. 2002."
However, said test result does not contain any signature, much less the signature

Page 276 of 349

of any of the doctors whose name [sic] were printed therein. This omission is
fatal as it goes to the veracity of the said purported drug test result.
Consequently, the purported drug test result cannot be deemed as substantial
proof that petitioner violated his employer’s "no alcohol, no drug policy’ [sic].

xxxx

Even assuming arguendo that there was just cause, respondents miserably
failed to show that the presence of the petitioner in the vessel constitutes a
clear and existing danger to the safety of the crew or the vessel. x x x

xxxx

It is a basic principle in Labor Law that in termination disputes, the burden is on

the employer to show that the dismissal was for a just and valid cause. x x x

xxxx

x x x [T]he Honorable Labor Arbiter as well as the Honorable Court of Appeals

clearly erred in ruling that there was just cause for the termination of petitioner’s
employment. Petitioner’s employment was terminated on the basis only of a
mere allegation that is unsubstantiated, unfounded and on the basis of the drug
test report that was not even signed by the doctor who purportedly conducted
such test.

5. Moreover, respondents failed to observe due process in terminating

petitioner’s employment. There is no evidence on record that petitioner was
furnished by his employer with a written notice apprising him of the particular act
or omission which is the basis for his dismissal. Furthermore, there is also no
evidence on record that the second notice, informing petitioner of the decision to
dismiss, was served to the petitioner. There is also no proof on record that
petitioner was given an opportunity to answer and rebut the charges against him
prior to the dismissal.22

The Court’s Ruling

In its 11 May 2005 Decision, the Court of Appeals held that there was just cause
for Jose, Jr.’s dismissal. The Court of Appeals gave credence to the drug test
result showing that Jose, Jr. was positive for marijuana. The Court of Appeals
considered the drug test result as part of entries in the course of business. The
Court of Appeals held that:

Page 277 of 349

Under legal rules of evidence, not all unsigned documents or papers fail the test
of admissibility. There are kinds of evidence known as exceptions to the hearsay
rule which need not be invariably signed by the author if it is clear that it issues
from him because of necessity and under circumstances that safeguard the
trustworthiness of the paper. A number of evidence of this sort are called entries
in the course of business, which are transactions made by persons in the regular
course of their duty or business. We agree with the labor arbiter that the drug test
result constitutes entries made in the ordinary or regular course of duty of a
responsible officer of the vessel. The tests administered to the crew were routine
measures of the vessel conducted to enforce its stated policy, and it was a
matter of course for medical reports to be issued and released by the medical
officer. The ship’s physician at Curacao under whom the tests were conducted
was admittedly Dr. Heath. It was under his name and with his handwritten
comments that the report on the respondent came out, and there is no basis to
suspect that these results were issued other than in the ordinary course of his
duty. As the labor arbiter points out, the drug test report is evidence in itself and
does not require additional supporting evidence except if it appears that the drug
test was conducted not in accordance with drug testing procedures. Nothing of
the sort, he says, has even been suggested in this particular case.23 (Emphasis
supplied)

Jose, Jr. claims that the Court of Appeals erred when it ruled that there was just
cause for his dismissal. The Court is not impressed. In a petition for review on
certiorari under Rule 45 of the Rules of Court, a mere statement that the Court of
Appeals erred is insufficient. The petition must state the law or jurisprudence and
the particular ruling of the appellate court violative of such law or jurisprudence.
In Encarnacion v. Court of Appeals,24 the Court held that:

Petitioner asserts that there is a question of law involved in this appeal. We do

not think so. The appeal involves an appreciation of facts, i.e., whether the
questioned decision is supported by the evidence and the records of the case. In
other words, did the Court of Appeals commit a reversible error in considering the
trouble record of the subject telephone? Or is this within the province of the
appellate court to consider? Absent grave abuse of discretion, this Court will not
reverse the appellate court’s findings of fact.

In a petition for review under Rule 45, Rules of Court, invoking the usual reason,
i.e., that the Court of Appeals has decided a question of substance not in accord
with law or with applicable decisions of the Supreme Court, a mere statement of
the ceremonial phrase is not sufficient to confer merit on the petition. The petition
must specify the law or prevailing jurisprudence on the matter and the particular

Page 278 of 349

ruling of the appellate court violative of such law or previous doctrine laid down
by the Supreme Court. (Emphasis supplied)

In the present case, Jose, Jr. did not show that the Court of Appeals’ ruling is
violative of any law or jurisprudence. Section 43, Rule 130, of the Rules of Court
states:

SEC. 43. Entries in the course of business. — Entries made at, or near the time
of the transactions to which they refer, by a person deceased, or unable to
testify, who was in a position to know the facts therein stated, may be received
as prima facie evidence, if such person made the entries in his professional
capacity or in the performance of duty and in the ordinary or regular course of
business or duty.1avvphi1

In Canque v. Court of Appeals,25 the Court laid down the requisites for admission
in evidence of entries in the course of business: (1) the person who made the
entry is dead, outside the country, or unable to testify; (2) the entries were made
at or near the time of the transactions to which they refer; (3) the person who
made the entry was in a position to know the facts stated in the entries; (4) the
entries were made in a professional capacity or in the performance of a duty; and
(5) the entries were made in the ordinary or regular course of business or duty.

Here, all the requisites are present: (1) Dr. Heath is outside the country; (2) the
entries were made near the time the random drug test was conducted; (3) Dr.
Heath was in a position to know the facts made in the entries; (4) Dr. Heath
made the entries in his professional capacity and in the performance of his duty;
and (5) the entries were made in the ordinary or regular course of business or
duty.

The fact that the drug test result is unsigned does not necessarily lead to the
conclusion that Jose, Jr. was not found positive for marijuana. In KAR ASIA, Inc.
v. Corona,26 the Court admitted in evidence unsigned payrolls. In that case, the
Court held that:

Entries in the payroll, being entries in the course of business, enjoy the
presumption of regularity under Rule 130, Section 43 of the Rules of Court. It is
therefore incumbent upon the respondents to adduce clear and convincing
evidence in support of their claim. Unfortunately, respondents’ naked assertions
without proof in corroboration will not suffice to overcome the disputable
presumption.

Page 279 of 349

In disputing the probative value of the payrolls for December 1994, the appellate
court observed that the same contain only the signatures of Ermina Daray and
Celestino Barreto, the paymaster and the president, respectively. It further
opined that the payrolls presented were only copies of the approved payment,
and not copies disclosing actual payment.

The December 1994 payrolls contain a computation of the amounts payable to

the employees for the given period, including a breakdown of the allowances and
deductions on the amount due, but the signatures of the respondents are
conspicuously missing. Ideally, the signatures of the respondents should appear
in the payroll as evidence of actual payment. However, the absence of such
signatures does not necessarily lead to the conclusion that the December 1994
COLA was not received. (Emphasis supplied)

In the present case, the following facts are established (1) random drug tests are
regularly conducted on all officers and crew members of M/T Limar; (2) a random
drug test was conducted at the port of Curacao on 8 October 2002; (3) Dr. Heath
was the authorized physician of M/T Limar; (4) the drug test result of Jose, Jr.
showed that he was positive for marijuana; (5) the drug test result was issued
under Dr. Heath’s name and contained his handwritten comments. The Court of
Appeals found that:

The tests administered to the crew were routine measures of the vessel
conducted to enforce its stated policy, and it was a matter of course for medical
reports to be issued and released by the medical officer. The ship’s physician at
Curacao under whom the tests were conducted was admittedly Dr. Heath. It was
under his name and with his handwritten comments that the report on the
respondent came out, and there is no basis to suspect that these results were
issued other than in the ordinary course of his duty. As the labor arbiter points
out, the drug test report is evidence in itself and does not require additional
supporting evidence except if it appears that the drug test was conducted not in
accordance with drug testing procedures. Nothing of the sort, he says, has even
been suggested in this particular case.27

Factual findings of the Court of Appeals are binding on the Court. Absent grave
abuse of discretion, the Court will not disturb the Court of Appeals’ factual
findings.28 In Encarnacion,29 the Court held that, "unless there is a clearly grave or
whimsical abuse on its part, findings of fact of the appellate court will not be
disturbed. The Supreme Court will only exercise its power of review in known
exceptions such as gross misappreciation of evidence or a total void of
evidence." Jose, Jr. failed to show that the Court of Appeals gravely abused its
discretion.

Page 280 of 349

Article 282(a) of the Labor Code states that the employer may terminate an
employment for serious misconduct. Drug use in the premises of the employer
constitutes serious misconduct. In Bughaw, Jr. v. Treasure Island Industrial
Corporation,30 the Court held that:

The charge of drug use inside the company’s premises and during working hours
against petitioner constitutes serious misconduct, which is one of the just causes
for termination. Misconduct is improper or wrong conduct. It is the transgression
of some established and definite rule of action, a forbidden act, a dereliction of
duty, willful in character, and implies wrongful intent and not merely an error in
judgment. The misconduct to be serious within the meaning of the Act must be of
such a grave and aggravated character and not merely trivial or unimportant.
Such misconduct, however serious, must nevertheless, in connection with the
work of the employee, constitute just cause for his separation. This Court took
judicial notice of scientific findings that drug abuse can damage the mental
faculties of the user. It is beyond question therefore that any employee under the
influence of drugs cannot possibly continue doing his duties without posing a
serious threat to the lives and property of his co-workers and even his employer.
(Emphasis supplied)

Jose, Jr. claims that he was not afforded due process. The Court agrees. There
are two requisites for a valid dismissal: (1) there must be just cause, and (2) the
employee must be afforded due process.31 To meet the requirements of due
process, the employer must furnish the employee with two written notices — a
notice apprising the employee of the particular act or omission for which the
dismissal is sought and another notice informing the employee of the employer’s
decision to dismiss. In Talidano v. Falcon Maritime & Allied Services, Inc.,32 the
Court held that:

[R]espondent failed to comply with the procedural due process required for
terminating the employment of the employee. Such requirement is not a mere
formality that may be dispensed with at will. Its disregard is a matter of serious
concern since it constitutes a safeguard of the highest order in response to man’s
innate sense of justice. The Labor Code does not, of course, require a formal or
trial type proceeding before an erring employee may be dismissed. This is
especially true in the case of a vessel on the ocean or in a foreign port. The
minimum requirement of due process termination proceedings, which must be
complied with even with respect to seamen on board a vessel, consists of notice
to the employees intended to be dismissed and the grant to them of an
opportunity to present their own side of the alleged offense or misconduct, which
led to the management’s decision to terminate. To meet the requirements of due

Page 281 of 349

process, the employer must furnish the worker sought to be dismissed with two
written notices before termination of employment can be legally effected, i.e., (1)
a notice which apprises the employee of the particular acts or omissions for
which his dismissal is sought; and (2) the subsequent notice after due hearing
which informs the employee of the employer’s decision to dismiss him.
(Emphasis supplied)

In the present case, Jose, Jr. was not given any written notice about his
dismissal. However, the propriety of Jose, Jr.’s dismissal is not affected by the
lack of written notices. When the dismissal is for just cause, the lack of due
process does not render the dismissal ineffectual but merely gives rise to the
payment of ₱30,000 in nominal damages.33

WHEREFORE, the petition is DENIED. The 11 May 2005 Decision and 5 August
2005 Resolution of the Court of Appeals in CA-G.R. SP No. 83272 are
AFFIRMED with the MODIFICATION that OSG Ship Management Manila, Inc. is
ordered to pay Bernardo B. Jose, Jr. ₱30,000 in nominal damages.

Page 282 of 349

G.R. No. 201011               January 27, 2014
THERESITA, JUAN, ASUNCION, PATROCINIA, RICARDO, and GLORIA, all
surnamed DIMAGUILA, Petitioners,
vs.
JOSE and SONIA A. MONTEIRO, Respondents.
DECISION
MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court
assailing the August 15, 2011Decision and the March 5, 2012 Resolution  of the
1 2

Court of Appeals (CA), in CA-G.R. CV No. 92707, which affirmed the August 23,
2007 Decision  of the Regional Trial Court, Branch 27, Santa Cruz, Laguna
3

(RTC), in Civil Case No. SC-3108.

The Facts

On July 5, 1993, the respondent spouses, Jose and Sonia Monteiro (Spouses
Monteiro), along with Jose, Gerasmo, Elisa, and Clarita Nobleza, filed their
Complaint for Partition and Damages before the RTC, against the pet1t10ners,
Theresita, Juan, Asuncion, Patrocinia, Ricardo, and Gloria Dimaguila (The
Dimaguilas), together with Rosalina, Jonathan, Eve, Sol, Venus, Enrique, Nina,
Princess Arieta, and Evangelina Borlaza. The complaint alleged that all the
pmiies were co-owners and prayed for the pmiition of a residential house and lot
located at Gat. Tayaw St., Liliw, Laguna, with an area of 489 square meters, and
covered by Tax Declaration No. 1453. Spouses Monteiro anchored their claim on
a deed of sale executed in their favor by the heirs of Pedro Dimaguila (Pedro).

In their Answer, the Dimaguilas and the other defendants countered that there
was no co-ownership to speak of in the first place. They alleged that the subject
property, then owned by Maria Ignacio Buenaseda, had long been partitioned
equally between her two sons, Perfecto and Vitaliano Dimaguila, through a Deed
of Extrajudicial Partition, with its southern-half portion assigned to Perfecto and
the northern-half portion to Vitaliano. They claimed that they were the heirs of
Vitaliano and that Spouses Monteiro had nothing to do with the property as they
were not heirs of either Perfecto or Vitaliano.

During the course of the proceedings, several incidents were initiated, namely:
(a) Motion to Dismiss for lack of legal capacity to sue of Spouses Monteiro and
for lack of cause of action; (b) Motion for Reconsideration of the Order of denial
thereof, which was denied; (c) Motion for Production and Inspection of
Documents; (d) Motion for Reconsideration of the Order granting the same,
which was denied; (e) Motion to Defer Pre-trial; (f) Notice of Consignation by the

Page 283 of 349

petitioners in the exercise of their alleged right of redemption of the share being
claimed by the Spouses Monteiro in light of the deed of sale they produced and
claimed to have been executed by the heirs of Pedro in their favor; (g) Motion to
Remove Sonia Monteiro (Sonia) as plaintiff, which was denied; (h) Motion for
Reconsideration thereof, which was also denied; (i) Motion for Clarification and/or
Extended Resolution; and (j) Motion to Suspend Proceedings due to a pending
Petition for Certiorari before the CA assailing several of the RTC orders. The
proceedings resumed after the promulgation by the CA of its April 5, 2000
Resolution in CA-G.R. No. SP 52833, which upheld the assailed RTC orders.

On January 2, 2001, upon resumption of the proceedings, Spouses Monteiro

filed their Motion for Leave to Amend and/or Admit Amended Complaint.  The 4

RTC granted their motion. The amended complaint abandoned the original claim
for partition and instead sought the recovery of possession of a portion of the
subject property occupied by the Dimagui as and other defendants, specifically,
the potiion sold to the couple by the heirs of Pedro. Furthermore, only Spouses
Monteiro were retained as plaintiffs and the Dimaguilas as defendants.

In amending their complaint, Spouses Montiero adopted the Dimaguilas'

admission in their original answer that the subject propetiy had already been
partitioned between Perfecto and Vitaliano, through a Deed of Extrajudicial
Partition, dated October 5, 1945, and that during their lifetime, the brothers
agreed that Perfecto would become the owner of the southern-hal f portion and
Vitaliano of the northern-half portion, which division was observed and respected
by them as well as their heirs and successors-in-interest.

Spouses Monteiro further averred that Perfecto was survived by Esperanza,

Leandro and Pedro, who had divided the southern-half portion equally amongst
themselves, with their respective 1 /3 shares measuring 81.13 square meters
each; that Pedro's share pertains to the 1 /3 of the southern-half immediately
adjacent to the northern-half adjudicated to the

Dimaguilas as heirs of Vitaliano; that on September 29, 1992, Pedro's share was
sold by his heirs to them through a Bilihan ng Lahat Naming Karapatan (Bilihan)
with the acquiescence of the heirs of Esperanza and Leandro appearing in an
Affidavit of Conformity and Waiver; and that when they attempted to take
possession of the share of Pedro, they discovered that the subject portion was
being occupied by the Dimaguilas.

In their Answer  to the amended complaint, the Dimaguilas admitted that the
5

subject property was inherited by, and divided equally between Perfecto and
Vitaliano, but denied the admission in their original answer that it had been

Page 284 of 349

actually divided into southern and nmihern portions. Instead, they argued that the
Extrajudicial Partition mentioned only the division of the subject property "into two
and share and share alike." In effect, they argued the existence of a co-
owenrship, contrary to their original position. The Dimaguilas further argued that
the Bilihan did not specify the metes and bounds of the property sold, in violation
of Article 1458 of the Civil Code. Even assuming that such had been specified,
they averred that the sale of a definite portion of a property owned in common
was void since a co-owner could only sell his undivided share in the property.

During the trial, Spouses Monteiro presented Pedrito Adrieta, brother of Sonia
Monteiro (Sonia), who testified that Perfecto was his grandfather and that at the
time of Perfecto's death, he had two properties, one of which was the subject
property in Liliw, Laguna, which went to his children, Esperanza, Leonardo and
Pedro. Pedro was survived by his children Pedrito, Theresita, Francisco, and
Luis, who, in turn, sold their rights over the subject property to Sonia.

Sonia testified that she was approached by Pedro's son, Francisco, and was
asked if she was interested in purchasing Pedro's 1/3 share of the southern
portion of the Bahay na Sato, and that he showed her a deed of extrajudicial
partition executed by and between Perfecto and Vitaliano, as well as the tax
declaration of the property to prove that the property had already been
partitioned between the two brothers.

Engineer Baltazar F. Mesina testified that he was the geodetic engineer hired by
Spouses Monteiro to survey the property in Liliw, and recounted that he checked
the boundary of the subject property, subdivided the lot into two and came up
with a survey plan.

Crisostomo Arves, an employee from the Office of the Municipal Assessor,

presented a certified true copy of the cadastral map of Liliw and a list of
claimants/owners.

Dominga Tolentino, a record officer of the Department of Environment and

Natural Resources (DENR), testified that as part of her duties, she certifies and
safekeeps the records of surveyed land, including cadastral maps from the
region.

One of the Dimaguilas, Asuncion, was the sole witness for the defendants. She
testified that their first counsel made a mistake when he alleged in their original
answer that the property had already been partitioned into n01ihern and southern
portions between the two brothers, as the original answer had been rushed and
they were never given a copy of it. She claimed that the mistake was only

Page 285 of 349

pointed out to her by their new counsel after their former counsel withdrew due to
cancer. She further testified that there was no intention to partition the "bahay na
bato" which stood on the subject property, in order to preserve its historical and
sentimental value.

Ruling of the RTC

In its August 23, 2007 Decision, the RTC ruled in favor of Spouses Monteiro and
ordered the Dimaguilas to turn over the possession of the subject 1 /3 portion of
the southern-half of the property, to wit:

WHEREOF, judgment is hereby rendered in favor of the plaintiffs and against the
defendants:

a. Ordering the defendants and all persons claiming rights under them to
peacefully vacate and turn-over possession of 1/ 3 of the southern portion
of the property covered by Tax Declaration No. 1453, specifically
described as "A" of Lot 877 in the sketch plan marked as Exhibit "I", within
60 days from the finality of this Decision, failing which let a writ of
possession issue;

b. Ordering the defendants to pay the plaintiffs, jointly and solidarily, the
amount of ?500 per month in the form of rent for the use of the property
from July 1993 until the property is vacated;

c. Ordering the defendants to pay the plaintiffs, jointly and solidarily,

attorney's fees of ₱30,000 and litigation expense of ₱20,000.

SO ORDERED. 6

The RTC found that although the extrajudicial partition merely divided the
property into two share and share alike, evidence aliunde was appreciated to
show that there was an actual division of the property into south and north
between Perfecto and Vitaliano, and that such partition was observed and
honored by their heirs. These pieces of evidence were the cadastral map of
Liliw  and a corresponding list of claimants, which showed that the subject
7

property had long been registered as Lot 876 (northern-half), claimed by

Buenaventura Dimaguila (Buenaventura), an heir of Vitaliano, and Lot 877
(southern-half), claimed by Perfecto.

The RTC held that the manner of partition was admitted by the Dimaguilas
themselves in their original answer. It gave no credence to the claim of Asuncion

Page 286 of 349

that such admission was an error of their fonner counsel and that she was
unaware of the contents of their original answer. It noted that the Dimaguilas had
strongly maintained their theory of partition from 1992 when the complaint was
first filed, and only changed their defense in 2001 when Spouses Monteiro filed
their amended complaint. It keenly observed that it was precisely their admission
which propelled Spouses Monteiro to amend their complaint from one of partition
to recovery of possession. Thus, the RTC concluded that there was indeed a
partition of the subject property into southern-half and northern-half portions
between Perfecto and Vitaliano and that the Dimaguilas were estopped from
denying the same.

As to the authenticity of the Bilihan, where the 1 /3 share of Pedro was sold to
Spouses Monteiro, the RTC found the document to be regular and authentic
absent any piece of evidence to the contrary. It stated that the proper persons to
contest the sale were not the Dimaguilas, who were the heirs of Vitaliano, but the
heirs of Perfecto. It noted that the records showed that the heirs of Esperanza
and Leandro (Pedro's siblings), had signified their conformity to the pa1iition and
to the sale of Pedro's 1 /3 portion.

Ruling of the CA

In its assailed August 15, 2011 Decision, the CA affirmed the ruling of the RTC.

The CA found that Spouses Monteiro had established their case by a

preponderance of evidence thru their presentation of the Deed of Extrajudicial
Partition,  the cadastral map and the municipal assessor's records.  It noted,
8 9

more importantly, that the Dimaguilas themselves corroborated the claim of

partition in their original answer. It likewise ruled that the petitioners were
estopped from denying their admission of partition after the respondent spouses
had relied on their judicial admission.

The Dimaguilas also insisted on their argument, which was raised before the
RTC, but not addressed, that the Bilihan should not have been admitted as
evidence for lack of a documentary stamp tax, in accordance with Section 201 of
the National Internal Revenue Code (N!RC). Citing Gabucan v. Manta  and Del
10

Rosario v. Hamoy,  the CA, however, ruled that if a document which did not bear
11

the required documentary stamp was presented in evidence, the court should
require the proponent to affix the requisite stamp. The CA noted that the RTC
had failed to direct Spouses Monteiro to affix the stamp and merely reminded the
presiding judge to be more vigilant on similar situations in the future.
Nonetheless, it held that the petitioners did not possess the necessary
personality to assail the sale between Spouses Monteiro and the heirs of Pedro

Page 287 of 349

because it pe1iained to the southern-half of the property to which they had no
claim.

The CA likewise found sufficient basis for the award of rentals as compensatory
damages since Spouses Monteiro were wrongfully deprived of possession of the
1/3 portion of the southern-half of the subject property. It also upheld the award
of attorney's fees and litigation expenses by the RTC, considering that Spouses
Monteiro were compelled to litigate and incur expenses to protect their rights and
interest.

In its assailed March 5, 2012 Resolution, the CA denied the petitioners' motion
for reconsideration for lack of merit.

Hence, this petition.

ASSIGNMENT OF ERRORS

THE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THERE WAS

AN ACTUAL PARTITION OF THE PROPERTY COVERED BY TAX
DECLARATION NO. 1453.

II

THE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE 1/3

PORTION OF THE SOUTHERN HALF OF THE PROPERTY WAS SOLD TO
THE RESPONDENTS.

III

THE COURT OF APPEALS GRAVELY ERRED IN ADMITTING IN EVIDENCE

EXHIBIT C, THE BIL/HAN NG LAHA T NAMING KARAPATAN.

IV

THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE

RESPONDENTS ARE ENTITLED TO RECOVER POSSESSION OF THE 1/3
PORTION OF THE SOUTHERN HALF OF THE PROPERTY.

Page 288 of 349

THE COURT OF APPEALS GRAVELY ERRED IN FINDING THE
PETITIONERS LIABLE FOR RENTALS FOR THE USE OF THE PROPERTY
FROM JULY 1993 UNTIL VACATED.

VI

THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THE

PETITIONERS LIABLE FOR ATTORNEY'S FEES AND LITIGATION
EXPENSES.

VII

THE COURT OF APPEALS GRAVELY ERRED WHEN IT FAILED TO

CONSIDER THE PETITIONERS' SUPPLEMENTAL ANSWER TO AMENDED
COMPLAINT AND TO GRANT THE COUNTERCLAIMS INTERPOSED
THEREIN. 12

The Dimaguilas argue that their original allegation regarding the partition of the
subject property into northern and southern portions was a mistake of their
former counsel, and it was not their intention to partition the property because to
do so would damage the house thereon. Even assuming an admission was
made, the petitioners aver that such was made only by some, but not all, of the
co-owners; and that partition can only be made by all co-owners, and allowing
the admission is tantamount to effecting partition by only some co-owners.
Spouses Monteiro themselves, in their original complaint, made an admission
that they were co-owners of the property and asserted that there was no
partition. The evidence aliunde considered by the RTC, consisting of the
cadastral map and the list of claimants, were timely objected to during the trial as
hearsay and a violation of the best evidence rule.

The petitioners reiterate that the Bilihan should not have been admitted into
evidence because it lacked the documentary stamp tax required by Section 201
of the NIRC, providing that no document shall be admitted in evidence until the
requisite stamps have been affixed thereto. They argue that the ruling of
petitioners' lack of personality to assail the deed of sale is different from the issue
of the deed of sale's admissibility as evidence. They conclude that considering
that no documentary stamp was ever affixed on the deed of sale, such should
never have been admitted into evidence and consequently, should not have been
relied upon by the lower courts to prove the sale of 1/3 of the southern portion;
and that considering that the Bilihan is inadmissible as evidence, the respondent
spouses have no basis for their claim to the subject 1/3 portion of the southern-
half of the property. Thus, they insist that the lower courts erred in awarding to

Page 289 of 349

Spouses Monteiro the possession of the subject prope1iy, the rentals, attorney's
fees and litigation expenses, and in failing to rule on their counterclaim for
demolition of improvements and payment of damages.

The assignment of errors boils down to two main issues:

I. Whether there was a pa1iition of the subject property; and

2. Whether the 1/3 portion of the southern-half of the subject property was
sold to the respondent spouses.
Ruling of the Court

At the outset, it must be pointed out that the petitioners' assignment of errors
calls for the Court to again evaluate the evidence to determine whether there was
a partition of the property and whether the 1/3 portion of the southern half was
sold to the respondent spouses. These clearly entail questions of fact which are
beyond the Court's ambit of review under Rule 45 of the Rules of Court,
especially considering that the findings of fact of the RTC were affirmed by the
CA.  On this ground alone, the present petition must be denied. Nonetheless, the
13

Court shall delve into these factual issues to finally put this case to rest.

Partition of the Subject Property

Spouses Monteiro, as plaintiffs in the original case, had the burden of proof to
establish their case by a preponderance of evidence, which is the weight, credit,
and value of the aggregate evidence on either side, synonymous with the term
"greater weight of the evidence." Preponderance of evidence is evidence which
is more convincing to the court as worthy of belief than that which is offered in
opposition thereto.14

To prove their claim of partition, the respondent spouses presented the following:
(1) the Deed of Extrajudicial Partition, dated October 5, 1945, executed by and
between the brothers Perfecto and Vitaliano; (2) the cadastral map of Liliw
Cadm-484,  dated August 6, 1976, showing that the subject property had been
15

divided into southern and northern portions, registered as Lot Nos. 876 and 877;
and (3) the Municipal Assessor's records  showing that the said lots were
16

respectively claimed by Buenaventura and Perfecto.

It is undisputed that the Deed of Extrajudicial Partition stated that Perfecto and
Vitaliano agreed "to divide between them into two and share and share alike" the
subject property, including the house situated thereon. It appears, however, that
the property was actually partitioned into definite portions, namely, southern and
northern halves, as reflected in the cadastral map of Liliw, which were

Page 290 of 349

respectively claimed by an heir of Vitaliano and Perfecto himself. It, thus,
appears that the subject property had already been partitioned into definite
portions more than 20 years prior to the original complaint for partition filed in
1993, and that such division had been observed by the brothers' heirs. As earlier
pointed out, the petitioners themselves admitted to this very fact in their original
answer, to wit:

(b) On September 5, 1945 the brothers PERFECTO and VITALIANO

DIMAGUILA executed a deed of EXTRA JUDICIAL PARTITION of the
aforedescribed property dividing the same into two (2) equal parts as indicated in
the aforesaid deed as follows, to wit:

xxx

(c) As a result of the foregoing partition and as known by all the parties in this
case from the beginning or as soon as they reached the age of discernment
PERFECTO DIMAGUILA became the sole and exclusive owner of the southern
half of the aforedescribed property and VITALIANO DIMAGUILA became the
sole owner of the northern half of the same property; the house that was built
thereon and still existing up to this time was likewise equally divided between the
two (2) DIMAGUILA brothers in accordance with the extrajudicial partition of half
equal shares;

xxx

2. In other words, the share of VITALIANO DIMAGUILA in the above described

property has already been long segregated and had passed on to his heirs as is
very well known by all the parties in this case;
17

xxx

(Emphases in the Original)

Section 4  of Rule 129 of the Rules of Court provides that an admission made by
18

a pa1iy in the course of the proceedings in the same case does not require proof,
and may be contradicted only by showing that it was made through palpable
mistake. The petitioners argue that such admission was the palpable mistake of
their former counsel in his rush to file the answer, a copy of which was not
provided to them. Petitioner Asuncion testified:

Q So, why was that allegations (sic) made in the Answer?

Page 291 of 349

A May be, (sic) in his rush to file the Answer, Atty. Paredes filed the same without
giving us a copy ... 19

This contention is unacceptable. It is a purely self-serving claim unsupported by

any iota of evidence. Bare allegations, unsubstantiated by evidence, are not
equivalent to proof.  Furthermore, the Court notes that this position was adopted
20

by the petitioners only almost eight (8) years after their original answer was filed,
in response to the amended complaint of the respondent spouses. In their
original answer to the complaint for partition, their claim that there was already a
partition into northern-half and southern-half portions, was the very essence of
their defense. It was precisely this admission which moved the respondent
spouses to amend their complaint. The petitioners cannot now insist that the very
foundation of their original defense was a palpable mistake.

Article 1431  of the Civil Code provides that through estoppel, an admission is
21

rendered conclusive upon the person making it, and cannot be denied or
disproved as against the person relying thereon. The respondent spouses had
clearly relied on the petitioners' admission and so amended their original
complaint for partition to one for recovery of possession of a portion of the
subject property. Thus, the petitioners are now estopped from denying or
attempting to prove that there was no partition of the property.

Considering that an admission does not require proof, the admission of the
petitioners would actually be sufficient to prove the partition even without the
documents presented by the respondent spouses. If anything, the additional
evidence they presented only served to corroborate the petitioners' admission.

The petitioners argue that they timely objected to the cadastral map and the list
of claimants presented by the respondent spouses, on the ground that they
violated the rule on hearsay and the best evidence rule.

Anent the best evidence rule, Section 3( d) of Rule 130 of the Rules of Court
provides that when the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document itself, except when
the original is a public record in the custody of a public officer or is recorded in a
public office.  Section 7 of the same Rule provides that when the original of a
22

document is in the custody of a public officer or is recorded in a public office, its

contents may be proved by a certified copy issued by the public officer in custody
thereof.  Section 24 of Rule 132 provides that the record of public documents
23

may be evidenced by a copy attested by the officer having the legal custody or
the record. 24

Page 292 of 349

Certified true copies of the cadastral map of Liliw and the corresponding list of
claimants of the area covered by the map were presented by two public officers.
The first was Crisostomo Arves, Clerk III of the Municipal Assessor's Office, a
repository of such documents. The second was Dominga Tolentino, a DENR
employee, who, as a record officer, certifies and safekeeps records of surveyed
land involving cadastral maps. The cadastral maps and the list of claimants, as
ce1iified true copies of original public records, fall under the exception to the best
evidence rule.

As to the hearsay rule, Section 44 of Rule 130 of the Rules of Court similarly
provides that entries in official records are an exception to the rule.  The rule
25

provides that entries in official records made in the performance of the duty of a
public officer of the Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts therein stated.
The necessity of this rule consists in the inconvenience and difficulty of requiring
the official's attendance as a witness to testify to the innumerable transactions in
the course of his duty. The document's trustworthiness consists in the
presumption of regularity of performance of official duty.26

Cadastral maps are the output of cadastral surveys. The DENR is the
department tasked to execute, supervise and manage the conduct of cadastral
surveys.  It is, therefore, clear that the cadastral map and the corresponding list
27

of claimants qualify as entries in official records as they were prepared by the

DENR, as mandated by law. As such, they are exceptions to the hearsay rule
and are primafacie evidence of the facts stated therein.

Even granting that the petitioners had not admitted the partition, they presented
no evidence to contradict the evidence of the respondent spouses. Thus, even
without the admission of the petitioners, the respondent spouses proved by a
preponderance of evidence that there had indeed been a partition of the subject
property.

Sale of 1/3 Portion of the Southern-half

To prove that 1/3 of the southern-half portion of the subject property was sold to
them, Spouses Monteiro presented a deed of sale entitled Bilihan ng Lahat
Naming Karapatan,  dated September 29, 1992, wherein Pedro's share was sold
28

by his heirs to them, with the acquiescence of the heirs of Esperanza and
Leandro in an Affidavit of Conformity and Waiver.  The petitioners argue that the
29

Bilihan should not have been admitted into evidence because it lacked the
documentary stamp tax required by Section 201 of the NIRC.

Page 293 of 349

On August 29, 1994, the petitioners filed a motion for the production and/or
inspection of documents,  praying that Spouses Monteiro be ordered to produce
30

the deed of sale, which they cited as the source of their rights as co-owners. On
November 20, 1995, Spouses Monteiro submitted their compliance,  furnishing
31

the RTC and the petitioners with a copy  of the Bilihan. On January 3, 1996, the
32

petitioners filed a notice of consignation, manifesting that they had attempted to

33

exercise their right of redemption as co-owners of the 1/3 portion of the southern
half of the property under Article 1623  of the Civil Code by sending and
34

tendering payment of redemption to Spouses Monteiro, which was, however,

returned.

By filing the notice of consignation and tendering their payment for the
redemption of the 1/3 portion of the southern-half of the property, the petitioners,
in effect, admitted the existence, due execution and validity of the Bilihan.
Consequently, they are now estopped from questioning its admissiblity in
evidence for relying on such for their right of redemption. Additionally, the Court
notes that the copy  of the Bilihan which was originally submitted by Spouses
35

Monteiro with its compliance filed on November 20, 1995, does in fact bear a
documentary stamp tax. It could only mean that the documentary stamp tax on
the sale was properly paid. The Bilihan was, therefore, properly admitted into
evidence and considered by the RTC.

In any case, as correctly held by the lower cou1is, the petitioners, as heirs of
Vitaliano, who inherited the northern-half po1iion of the subject property, do not
possess the necessary personality to assail the sale of the southern-half portion
between Spouses Monteiro and the heirs of Pedro.  They are not real parties-in-
1âwphi1

interest who stand to be benefited or injured by the sale of the 1/3 portion of the
southern-half over which they have absolutely no right. As correctly ruled by the
courts below, only fellow co-owners have the personality to assail the sale,
namely, the heirs of Pedro's siblings, Esperanza and Leandro. They have,
however, expressly aquiesced to the sale and waived their right to the property in
the affidavit presented by Spouses Monteiro.  As such, the petitioners have no
36

right to their counterclaims of demolition of improvements and payment of

damages.

With Spouses Monteiro having sufficiently proved their claim over the subject I /3
portion of the southern-half of the prope1iy through the Bilihan, the lower courts
did not err in awarding possession, rentals, attorney's fees, and litigation
expenses to them.

The Court, however, finds that the award of rentals should be reckoned from
January 2, 2001, the date the Spouses Monteiro filed their Amended Complaint

Page 294 of 349

seeking recovery of the subject portion. Interest at the rate of 6% per annum
shall also be imposed on the total amount of rent due from finality of this Decision
until fully paid.
37

WHEREFORE, the petition is DENIED. The August 15, 2011 Decision and the
March 15, 2012 Resolution of the Court of Appeals, in CA-G .R. CV No. 92707
are AFFIRMED with MODIFICATION, in that:

a. The award of rent at the rate of ₱500.00 per month shall be reckoned
from January 2, 2001 until the property is vacated; and

b. Interest at the rate of 6% per annum shall be imposed on the total

amount of rent due from finality of this Decision until fully paid.

Page 295 of 349

G.R. No. 193261               April 24, 2012
MEYNARDO SABILI, Petitioner, 
vs.
COMMISSION ON ELECTIONS and FLORENCIO LIBREA, Respondents.
DECISION
SERENO, J.:

Before us is a Petition for Certiorari under Rule 64 in relation to Rule 65 of the

Rules of Court, seeking to annul the Resolutions in SPA No. 09-047 (DC) dated
26 January 2010 and 17 August 2010 of the Commission on Elections
(COMELEC), which denied due course to and canceled the Certificate of
Candidacy (COC) of petitioner Meynardo Sabili (petitioner) for the position of
Mayor of Lipa City for the May 2010 elections. At the

heart of the controversy is whether petitioner Sabili had complied with the one-
year residency requirement for local elective officials.

When petitioner filed his COC for mayor of Lipa City for the 2010 elections, he
1 

stated therein that he had been a resident of the city for two (2) years and eight
(8) months. Prior to the 2010 elections, he had been twice elected (in 1995 and
in 1998) as Provincial Board Member representing the 4th District of Batangas.
During the 2007 elections, petitioner ran for the position of Representative of the
4th District of Batangas, but lost. The 4th District of Batangas includes Lipa
City. However, it is undisputed that when petitioner filed his COC during the 2007
2 

elections, he and his family were then staying at his ancestral home in Barangay
(Brgy.) Sico, San Juan, Batangas.

Private respondent Florencio Librea (private respondent) filed a "Petition to Deny

Due Course and to Cancel Certificate of Candidacy and to Disqualify a
Candidate for Possessing Some Grounds for Disqualification" against him before
3 

the COMELEC, docketed as SPA No. 09-047 (DC). Citing Section 78 in relation
to Section 74 of the Omnibus Election Code, private respondent alleged that
4 

petitioner made material misrepresentations of fact in the latter’s COC and

likewise failed to comply with the one-year residency requirement under Section
39 of the Local Government Code.  Allegedly, petitioner falsely declared under
5 

oath in his COC that he had already been a resident of Lipa City for two years
and eight months prior to the scheduled 10 May 2010 local elections.

In support of his allegation, private respondent presented the following:

1. Petitioner’s COC for the 2010 elections filed on 1 December 2009 6

Page 296 of 349

 2. 2009 Tax Declarations for a house and lot (TCT Nos. 173355, 173356
and buildings thereon) in Pinagtong-ulan, Lipa City registered under the
name of Bernadette Palomares, petitioner’s common-law wife 7

3. Lipa City Assessor Certification of Property Holdings of properties under

the name of Bernadette Palomares 8

4. Affidavit executed by private respondent Florencio Librea 9

5. Sinumpaang Salaysay executed by Eladio de Torres 10

6. Voter Certification on petitioner issued by COMELEC Election Officer

Juan D. Aguila, Jr. 11

7. 1997 Voter Registration Record of petitioner 12

8. National Statistics Office (NSO) Advisory on Marriages regarding

petitioner
13

9. Lipa City Assessor Certificate of No Improvement on Block 2, Lot 3,

Brgy. Lood, Lipa City registered in the name of petitioner 14

10. NSO Certificate of No Marriage of Bernadette Palomares 15

11. Lipa City Assessor Certificate of No Improvement on Block 2, Lot 5,

Brgy. Lood, Lipa City registered in the name of petitioner 16

12. Lipa City Permits and Licensing Office Certification that petitioner has
no business therein 17

13. Apparent printout of a Facebook webpage of petitioner’s daughter, Mey

Bernadette Sabili18

14. Department of Education (DepEd) Lipa City Division Certification that

the names Bernadette Palomares, Mey Bernadette Sabili and Francis
Meynard Sabili (petitioner’s son) do not appear on its list of graduates 19

15. Certification from the Office of the Election Officer of Lipa City that
Bernadette Palomares, Mey Bernadette Sabili and Francis Meynard Sabili
do not appear in its list of voters
20

16. Affidavit executed by Violeta Fernandez 21

17. Affidavit executed by Rodrigo Macasaet 22

18. Affidavit Executed by Pablo Lorzano 23

19. Petitioner’s 2007 COC for Member of House of Representative 24

For ease of later discussion, private respondent’s evidence shall be grouped as

follows: (1) Certificates regarding ownership of real property; (2) petitioner’s
Voter Registration and Certification (common exhibits of the parties); (3)
petitioner’s COCs in previous elections; (3) Certifications regarding petitioner’s
family members; and (4) Affidavits of Lipa City residents.

On the other hand, petitioner presented the following evidence to establish the
fact of his residence in Lipa City:

Page 297 of 349

 1. Affidavit executed by Bernadette Palomares 25

2. Birth Certificate of Francis Meynard Sabili 26

3. Affidavit of Leonila Suarez (Suarez)27

4. Certification of Residency issued by Pinagtong-ulan Barangay Captain,

Dominador Honrade 28

5. Affidavit executed by Rosalinda Macasaet 29

6. Certificate of Appreciation issued to petitioner by the parish of Sto. Nino

of Pinagtong-ulan 30

7. Designation of petitioner in the Advisory Body (AB) of Pinagtong-ulan,

San Jose/Lipa City Chapter of Guardians Brotherhood, Inc. 31

8. COMELEC Voter Certification on petitioner issued by Election Officer

Juan Aguila, Jr.32

9. COMELEC Application for Transfer/Transfer with Reactivation dated 6

June 2009 signed by Election Officer Juan Aguila, Jr. 33

10. Petitioner’s Income Tax Return for 2007 34

11. Official Receipt for petitioner’s income tax payment for 2007 35

12. Petitioner’s Income Tax Return for 2008 36

13. Official Receipt for petitioner’s income tax payment for 2008 37

14. Birth Certificate of Mey Bernadette Sabili 38

15. Affidavit executed by Jacinto Cornejo, Sr. 39

16. Joint Affidavit of twenty-one (21) Pinagtong-ulan residents, including

past and incumbent Pinagtong-ulan officials. 40

For ease of later discussion, petitioner’s evidence shall be grouped as follows:

(1) his Income Tax Returns and corresponding Official Receipts for the years
2007 and 2008; (2) Certification from the barangay captain of Pinagtong-ulan; (3)
Affidavit of his common-law wife, Bernadette Palomares; and (4) Affidavits from a
previous property owner, neighbors, Certificate of Appreciation from the
barangay parish and Memorandum from the local chapter of Guardians
Brotherhood, Inc.

The COMELEC Ruling

In its Resolution dated 26 January 2010, the COMELEC Second Division

41 

granted the Petition of private respondent, declared petitioner as disqualified

from seeking the mayoralty post in Lipa City, and canceled his Certificate of
Candidacy for his not being a resident of Lipa City and for his failure to meet the
statutory one-year residency requirement under the law.

Petitioner moved for reconsideration of the 26 January 2010 Resolution of the

COMELEC, during the pendency of which the 10 May 2010 local elections were

Page 298 of 349

held. The next day, he was proclaimed the duly elected mayor of Lipa City after
garnering the highest number of votes cast for the said position. He accordingly
filed a Manifestation with the COMELEC en banc to reflect this fact.
42 

In its Resolution dated 17 August 2010, the COMELEC en banc denied the

43 

Motion for Reconsideration of petitioner. Although he was able to receive his

copy of the Resolution, no prior notice setting the date of promulgation of the said
Resolution was received by him. Meanwhile, Section 6 of COMELEC Resolution
No. 8696 (Rules on Disqualification Cases Filed in Connection with the May 10,
2012 Automated National and Local Elections) requires the parties to be notified
in advance of the date of the promulgation of the Resolution.

SEC. 6. Promulgation. – The promulgation of a Decision or Resolution of the

Commission or a Division shall be made on a date previously fixed, notice of
which shall be served in advance upon the parties or their attorneys personally,
or by registered mail, telegram, fax, or thru the fastest means of communication.

Hence, petitioner filed with this Court a Petition (Petition for Certiorari with
Extremely Urgent Application for the Issuance of a Status Quo Order and for the
Conduct of a Special Raffle of this Case) under Rule 64 in relation to Rule 65 of
the Rules of Court, seeking the annulment of the 26 January 2010 and 17 August
2010 Resolutions of the COMELEC. Petitioner attached to his Petition a
Certificate of Canvass of Votes and proclamation of Winning Candidates for Lipa
City Mayor and Vice-Mayor issued by the City/Municipal Board of
Canvassers, as well as a copy of his Oath of Office. He also attached to his
44  45 

Petition another Certification of Residency issued by Pinagtong-ulan Barangay

46 

Captain Dominador Honrade and sworn to before a notary public.

On 7 September 2010, this Court issued a Status Quo Ante Order requiring the
47 

parties to observe the status quo prevailing before the issuance of the assailed
COMELEC Resolutions. Thereafter, the parties filed their responsive pleadings.

Issues

The following are the issues for resolution:

1. Whether the COMELEC acted with grave abuse of discretion when it

failed to promulgate its Resolution dated 17 August 2010 in accordance
with its own Rules of Procedure; and

Page 299 of 349

 2. Whether the COMELEC committed grave abuse of discretion in holding
that Sabili failed to prove compliance with the one-year residency
requirement for local elective officials.

The Court’s Ruling

1. On whether the COMELEC acted with grave abuse of discretion when it

failed to promulgate its Resolution dated 17 August 2010 in accordance with its
own Rules of Procedure

Petitioner argues that the assailed 17 August 2010 COMELEC Resolution, which
denied petitioner’s Motion for Reconsideration, is null and void. The Resolution
was allegedly not promulgated in accordance with the COMELEC’s own Rules of
Procedure and, hence, violated petitioner’s right to due process of law.

The rules governing the Petition for Cancellation of COC in this case is
COMELEC Resolution No. 8696 (Rules on Disqualification of Cases Filed in
Connection with the May 10, 2010 Automated National and Local Elections),
which was promulgated on 11 November 2009. Sections 6 and 7 thereof provide
as follows:

SEC. 6. Promulgation. - The promulgation of a Decision or Resolution of the

Commission or a Division shall be made on a date previously fixed, notice of
which shall be served in advance upon the parties or their attorneys personally,
or by registered mail, telegram, fax or thru the fastest means of communication.

SEC. 7. Motion for Reconsideration. - A motion to reconsider a Decision,

Resolution, Order or Ruling of a Division shall be filed within three (3) days from
the promulgation thereof. Such motion, if not pro-forma, suspends the execution
for implementation of the Decision, Resolution, Order or Ruling.

Within twenty-four (24) hours from the filing thereof, the Clerk of the Commission
shall notify the Presiding Commissioner. The latter shall within two (2) days
thereafter certify the case to the Commission en banc.

The Clerk of the Commission shall calendar the Motion for Reconsideration for
the resolution of the Commission en banc within three (3) days from the
certification thereof.

However, the COMELEC Order dated 4 May 2010 suspended Section 6 of

48 

COMELEC Resolution No. 8696 by ordering that "all resolutions be delivered to

the Clerk of the Commission for immediate promulgation" in view of "the

Page 300 of 349

proximity of the Automated National and Local Elections and lack of material
time." The Order states:

ORDER

Considering the proximity of the Automated National and Local Elections and
lack of material time, the Commission hereby suspends Sec. 6 of Resolution No.
8696 promulgated on November 11, 2009, which reads:

Sec. 6. Promulgation. – The promulgation of a Decision or Resolution of the

Commission or a Division shall be made on a date previously fixed, notice of
which shall be served upon the parties or their attorneys personally, or by
registered mail, telegram, fax or thru the fastest means of communication."

Let all resolutions be delivered to the Clerk of the Commission for immediate
promulgation.

SO ORDERED.

Petitioner claims that he did not receive notice of the said suspension of Section
6 of COMELEC Resolution No. 8696. Thus, his right to due process was still
violated. On the other hand, the COMELEC claims that it has the power to
suspend its own rules of procedure and invokes Section 6, Article IX-A of the
Constitution, which gives it the power "to promulgate its own rules concerning
pleadings and practice before it or before any of its offices."

We agree with the COMELEC on this issue.

In Lindo v. Commission on Elections, petitioner claimed that there was no valid

49 

promulgation of a Decision in an election protest case when a copy thereof was

merely furnished the parties, instead of first notifying the parties of a set date for
the promulgation thereof, in accordance with Section 20 of Rule 35 of the
COMELEC’s own Rules of Procedure, as follows:

Sec. 20. Promulgation and Finality of Decision. — The decision of the court shall
be promulgated on a date set by it of which due notice must be given the parties.
It shall become final five (5) days after promulgation. No motion for
reconsideration shall be entertained.

Rejecting petitioner’s argument, we held therein that the additional rule requiring
notice to the parties prior to promulgation of a decision is not part of the process
of promulgation. Since lack of such notice does not prejudice the rights of the

Page 301 of 349

parties, noncompliance with this rule is a procedural lapse that does not vitiate
the validity of the decision. Thus:

This contention is untenable. Promulgation is the process by which a decision is

published, officially announced, made known to the public or delivered to the
clerk of court for filing, coupled with notice to the parties or their counsel (Neria v.
Commissioner of Immigration, L-24800, May 27, 1968, 23 SCRA 812). It is the
delivery of a court decision to the clerk of court for filing and publication (Araneta
v. Dinglasan, 84 Phil. 433). It is the filing of the signed decision with the clerk of
court (Sumbing v. Davide, G.R. Nos. 86850-51, July 20, 1989, En Banc Minute
Resolution). The additional requirement imposed by the COMELEC rules of
notice in advance of promulgation is not part of the process of promulgation.
Hence, We do not agree with petitioner’s contention that there was no
promulgation of the trial court's decision. The trial court did not deny that it had
officially made the decision public. From the recital of facts of both parties, copies
of the decision were sent to petitioner's counsel of record and petitioner’s (sic)
himself. Another copy was sent to private respondent.

What was wanting and what the petitioner apparently objected to was not the
promulgation of the decision but the failure of the trial court to serve notice in
advance of the promulgation of its decision as required by the COMELEC rules.
The failure to serve such notice in advance of the promulgation may be
considered a procedural lapse on the part of the trial court which did not
prejudice the rights of the parties and did not vitiate the validity of the decision of
the trial court nor (sic) of the promulgation of said decision.

Moreover, quoting Pimping v. COMELEC, citing Macabingkil v. Yatco, we

50  51 

further held in the same case that failure to receive advance notice of the
promulgation of a decision is not sufficient to set aside the COMELEC’s
judgment, as long as the parties have been afforded an opportunity to be heard
before judgment is rendered, viz:

The fact that petitioners were not served notice in advance of the promulgation of
the decision in the election protest cases, in Our view, does not constitute
reversible error or a reason sufficient enough to compel and warrant the setting
aside of the judgment rendered by the Comelec. Petitioners anchor their
argument on an alleged denial to them (sic) due process to the deviation by the
Comelec from its own made rules. However, the essence of due process is that,
the parties in the case were afforded an opportunity to be heard.

In the present case, we read from the COMELEC Order that the exigencies
attendant to the holding of the country’s first automated national elections had

Page 302 of 349

necessitated that the COMELEC suspend the rule on notice prior to
promulgation, and that it instead direct the delivery of all resolutions to the Clerk
of the Commission for immediate promulgation. Notably, we see no prejudice to
the parties caused thereby. The COMELEC’s Order did not affect the right of the
parties to due process. They were still furnished a copy of the COMELEC
Decision and were able to reckon the period for perfecting an appeal. In fact,
petitioner was able to timely lodge a Petition with this Court.

Clearly, the COMELEC validly exercised its constitutionally granted power to

make its own rules of procedure when it issued the 4 May 2010 Order
suspending Section 6 of COMELEC Resolution No. 8696. Consequently, the
second assailed Resolution of the COMELEC cannot be set aside on the ground
of COMELEC’s failure to issue to petitioner a notice setting the date of the
promulgation thereof.

2. On whether the COMELEC committed grave abuse of discretion in holding

that Sabili failed to prove compliance with the one-year residency requirement for
local elective officials

As a general rule, the Court does not ordinarily review the COMELEC’s
appreciation and evaluation of evidence. However, exceptions thereto have been
established, including when the COMELEC's appreciation and evaluation of
evidence become so grossly unreasonable as to turn into an error of jurisdiction.
In these instances, the Court is compelled by its bounden constitutional duty to
intervene and correct the COMELEC's error. 52

In Mitra v. Commission on Elections, (G.R. No. 191938, 2 July 2010), we

explained that the COMELEC’s use of wrong or irrelevant considerations in
deciding an issue is sufficient to taint its action with grave abuse of discretion -

As a concept, "grave abuse of discretion" defies exact definition; generally, it

refers to "capricious or whimsical exercise of judgment as is equivalent to lack of
jurisdiction;" the abuse of discretion must be patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or
to act at all in contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion and hostility. Mere abuse of
discretion is not enough; it must be grave. We have held, too, that the use of
wrong or irrelevant considerations in deciding an issue is sufficient to taint a
decision-maker's action with grave abuse of discretion.

Closely related with the limited focus of the present petition is the condition,
under Section 5, Rule 64 of the Rules of Court, that findings of fact of the

Page 303 of 349

COMELEC, supported by substantial evidence, shall be final and non-
reviewable. Substantial evidence is that degree of evidence that a reasonable
mind might accept to support a conclusion.

In light of our limited authority to review findings of fact, we do not ordinarily

review in a certiorari case the COMELEC's appreciation and evaluation of
evidence. Any misstep by the COMELEC in this regard generally involves an
error of judgment, not of jurisdiction.

In exceptional cases, however, when the COMELEC's action on the appreciation

and evaluation of evidence oversteps the limits of its discretion to the point of
being grossly unreasonable, the Court is not only obliged, but has the
constitutional duty to intervene. When grave abuse of discretion is present,
resulting errors arising from the grave abuse mutate from error of judgment to
one of jurisdiction.

Before us, petitioner has alleged and shown the COMELEC’s use of wrong or
irrelevant considerations in deciding the issue of whether petitioner made a
material misrepresentation of his residency qualification in his COC as to order
its cancellation. Among others, petitioner pointed to the COMELEC’s inordinate
emphasis on the issue of property ownership of petitioner’s declared residence in
Lipa City, its inconsistent stance regarding Palomares’s relationship to the
Pinagtong-ulan property, and its failure to consider in the first instance the
certification of residence issued by the barangay captain of Pinagtong-ulan.
Petitioner bewails that the COMELEC required "more" evidence to show the
change in his residence, notwithstanding the various pieces of evidence he
presented and the fact that under the law, the quantum of evidence required in
these cases is merely substantial evidence and not clear and convincing
evidence. Petitioner further ascribes grave abuse of discretion in the
COMELEC’s brushing aside of the fact that he has been filing his ITR in Lipa City
(where he indicates that he is a resident of Pinagtong-ulan) on the mere
expedient that the law allows the filing of the ITR not only in the place of legal
residence but, alternately, in his place of business. Petitioner notes that private
respondent’s own evidence shows that petitioner has no business in Lipa City,
leaving only his residence therein as basis for filing his ITR therein.

Hence, in resolving the issue of whether the COMELEC gravely abused its
discretion in ruling that petitioner had not sufficiently shown that he had resided
in Lipa City for at least one year prior to the May 2010 elections, we examine the
evidence adduced by the parties and the COMELEC’s appreciation thereof.

Page 304 of 349

In the present case, the parties are in agreement that the domicile of origin of
Sabili was Brgy. Sico, San Juan, Batangas. He claims that he abandoned his
domicile of origin and established his domicile of choice in Brgy. Pinagtong-ulan,
Lipa City, thereby making him qualified to run for Lipa City mayor. On the other
hand, respondent COMELEC held that no such change in domicile or residence
took place and, hence, the entry in his Certificate of Candidacy showing that he
was a resident of Brgy. Pinagtong-ulan, Lipa City constituted a misrepresentation
that disqualified him from running for Lipa City mayor.

To establish a new domicile of choice, personal presence in the place must be

coupled with conduct indicative of the intention to make it one's fixed and
permanent place of abode. As in all administrative cases, the quantum of proof
53 

necessary in election cases is substantial evidence, or such relevant evidence as

a reasonable mind will accept as adequate to support a conclusion. 54

The ruling on private respondent’s evidence

We begin with an evaluation of the COMELEC’s appreciation of private

respondent’s evidence.

a) Petitioner’s Voter Certification, Registration and COCs in previous elections

Petitioner’s Voter Certification is a common exhibit of the parties. It states,

among others, that petitioner is a resident of Pinagtong-ulan, Lipa City,
Batangas; that he had been a resident of Lipa City for two (2) years and three (3)
months; and that he was so registered on 31 October 2009. The information
therein was "certified correct" by COMELEC Election Officer Juan B. Aguila, Jr.

Private respondent presented this document as proof that petitioner

misrepresented that he is a resident of Lipa City. On the other hand, the latter
presented this document as proof of his residency.

The COMELEC correctly ruled that the Voter Certification issued by the
COMELEC Election Officer, Atty. Juan B. Aguila, Jr., was not conclusive proof
that petitioner had been a resident of Lipa City since April 2007. It noted that
Aguila is not the competent public officer to certify the veracity of this claim,
particularly because petitioner’s COMELEC registration was approved only in
October 2009.

The Voter Registration Record of petitioner accomplished on 21 June 1997

showing that he was a resident of Sico, San Juan, Batangas, as well as his
various COCs dated 21 June 1997 and March 2007 indicating the same thing,

Page 305 of 349

were no longer discussed by the COMELEC – and rightly so. These pieces of
evidence showing that he was a resident of Sico, San Juan, Batangas on the
said dates are irrelevant as, prior to April 2007, petitioner was admittedly a
resident of Sico, San Juan Batangas. Rather, the relevant time period for
consideration is that from April 2007 onwards, after petitioner’s alleged change of
domicile.

b) Certificates regarding ownership of real property

The various certificates and tax declarations adduced by private respondent

showed that the Lipa property was solely registered in the name of petitioner’s
common-law wife, Bernadette Palomares. In discussing the import of this
document, the COMELEC reasoned that, being a "seasoned politician," he
should have registered the Lipa property (which he claimed to have purchased
with his personal funds) in his own name. Such action "would have offered
positive proof of intent to change actual residence" from San Juan, Batangas to
Lipa City, considering that he had previously declared his ancestral home in San
Juan, Batangas as his domicile. Since Palomares and petitioner are common-law
spouses not capacitated to marry each other, the property relation between them
is governed by Article 148 of the Family Code, where only the parties’ actual
55 

contributions are recognized. Hence, petitioner cannot prove ownership of a

property and residence in Lipa City through the registered ownership of the
common-law wife of the property in Lipa City.

On the other hand, petitioner bewails the inordinate emphasis that the
COMELEC bestowed upon the question of whether the Lipa property could be
considered as his residence, for the reason that it was not registered in his name.
He stresses that the issue should be residence, not property ownership.

It is true that property ownership is not among the qualifications required of

candidates for local election. Rather, it is a candidate’s residence in a locality
56 

through actual residence in whatever capacity. Indeed, we sustained the

COMELEC when it considered as evidence tending to establish a candidate’s
domicile of choice the mere lease (rather than ownership) of an apartment by a
candidate in the same province where he ran for the position of governor. In the
57 

more recent case of Mitra v. Commission on Elections, we reversed the

58 

COMELEC ruling that a candidate’s sparsely furnished, leased room on the

mezzanine of a feedmill could not be considered as his residence for the purpose
of complying with the residency requirement of Section 78 of the Omnibus
Election Code. 59

Page 306 of 349

The Dissent claims that the registration of the property in Palomares’s name
does not prove petitioner’s residence as it merely showed "donative intent"
without the necessary formalities or payment of taxes.

However, whatever the nature of the transaction might be, this point is immaterial
for the purpose of ascertaining petitioner’s residence. We have long held that it is
not required that a candidate should have his own house in order to establish his
residence or domicile in a place. It is enough that he should live in the locality,
even in a rented house or that of a friend or relative. What is of central concern
60 

then is that petitioner identified and established a place in Lipa City where he
intended to live in and return to for an indefinite period of time.

Hence, while the COMELEC correctly ruled that, of itself, Palomares’ ownership
of the Lipa property does not prove that she or – and in view of their common-law
relations, petitioner – resides in Lipa City, nevertheless, the existence of a house
and lot apparently owned by petitioner’s common-law wife, with whom he has
been living for over two decades, makes plausible petitioner’s allegation of bodily
presence and intent to reside in the area.

c) Certifications regarding the family members of petitioner

Private respondent presented a Certification from the DepEd, Lipa City Division,
indicating that the names Bernadette Palomares, Mey Bernadette Sabili
(petitioner’s daughter) and Francis Meynard Sabili (petitioner’s son) do not
appear on the list of graduates of Lipa City. Private respondent also presented a
Certification from the Office of the Election Officer of Lipa City that the names of
these family members of petitioner do not appear in its list of voters.

As the issue at hand is petitioner’s residence, and not the educational or voting
record of his family, the COMELEC properly did not consider these pieces of
evidence in arriving at its Resolution.

The Dissent nevertheless asserts that because his children do not attend
educational institutions in Lipa and are not registered voters therein, and
because petitioner does not maintain a business therein nor has property

in his name, petitioner is unable to show the existence of real and substantial
reason for his stay in Lipa City.

As to the Dissent’s first assertion, it must be stressed that the children, like the
wife, do not dictate the family domicile. Even in the context of marriage, the
family domicile is jointly decided by both husband and wife. In addition, we note
61 

Page 307 of 349

that the transfer to Lipa City occurred in 2007, when petitioner’s children were
already well into college and could very well have chosen to study elsewhere
than in Lipa City.

Also, it is petitioner’s domicile which is at issue, and not that of his children. But
even assuming that it was petitioner himself (rather than his children) who
attended educational institutions or who registered as a voter in a place other
than Lipa City, we have held that "absence from residence to pursue studies or
practice a profession or registration as a voter other than in the place where one
is elected, does not constitute loss of residence." In fact, Section 117 of the
62 

Omnibus Election Code provides that transfer of residence to any other place by
reason of one's "occupation; profession; employment in private and public
service; educational activities; work in military or naval reservations; service in
the army, navy or air force, the constabulary or national police force; or
confinement or detention in government institutions in accordance with law" is not
deemed as loss of residence.

As to the Dissent’s second assertion, petitioner apparently does not maintain a

business in Lipa City. However, apart from the Pinagtong-ulan property which
both Suarez (the previous property owner) and Palomares swear was purchased
with petitioner’s own funds, the records also indicate that there are two other lots
in Lipa City, particularly in Barangay Lodlod, Lipa City which are registered
63 

jointly in the name of petitioner and Palomares. In fact, it was private respondent
who presented the Lipa City Assessor’s Certificate to this effect. Even assuming
that this Court were to disregard the two Lodlod lots, it is well-established that
property ownership (and similarly, business interest) in the locality where one
intends to run for local elective post is not requirement of the Constitution.64

More importantly, we have gone so far as to rule that there is nothing "wrong in
an individual changing residences so he could run for an elective post, for as
long as he is able to prove with reasonable certainty that he has

effected a change of residence for election law purposes for the period required
by law."65

d) Affidavits of Lipa City residents

Private respondent also presented the affidavits of Violeta Fernandez and 66 

Rodrigo Macasaet, who were also residents of Pinagtong-ulan. Both stated that
67 

petitioner did not reside in Pinagtong-ulan, as they had "rarely seen" him in the
area. Meanwhile, Pablo Lorzano, in his Affidavit, attested that although the Lipa
68 

property was sometimes used for gatherings, he did "not recall having seen"

Page 308 of 349

petitioner in their barangay. On the other hand, private respondent and Eladio de
69 

Torres, both residents of Brgy. Calamias, reasoned that petitioner was not a
70 

resident of Lipa City because he has no work or family there.

The COMELEC did not discuss these Affidavits in its assailed Resolution. It was
correct in doing so, particularly considering that these Affidavits were duly
controverted by those presented by petitioner.

Moreover, even assuming the truth of the allegation in the Affidavits that
petitioner was "rarely seen" in the area, this does not preclude the possibility of
his residence therein. In Fernandez v. House of Representatives Electoral
Tribunal, we held that the averments of certain barangay health workers – that
71 

they failed to see a particular candidate whenever they made rounds of the
locality of which he was supposed to be a resident – is of no moment. It is
possible that the candidate was out of the house to attend to his own business at
the time. The law does not require a person to be in his home twenty-four (24)
hours a day, seven (7) days a week, to fulfill the residency requirement.

The ruling on petitioner’s evidence

We now evaluate how the COMELEC appreciated petitioner’s evidence:

a) Petitioner’s Income Tax Returns for 2007 and 2008

The Income Tax Returns of petitioner presented below showed that petitioner
had been paying his Income Tax (2007 and 2008) to the Revenue District Office
of Lipa City. In waving aside his Income Tax Returns, the COMELEC held that
these were not indications of residence since Section 51(B) of the National
Internal Revenue Code does not only state that it shall be filed in a person’s legal
residence, but that it may alternatively be filed in a person’s principal place of
business.

In particular, Section 51(B) of the National Internal Revenue Code provides that
72 

the Income Tax Return shall be filed either in the place where a person resides
or where his principal place of business is located. However, private
respondent’s own evidence – a Certification from the City Permits and Licensing
Office of Lipa City– showed that there was no business registered in the City
under petitioner’s name.

Thus, COMELEC failed to appreciate that precisely because an individual

income tax return may only be filed either in the legal residence OR the principal
place of business, as prescribed under the law, the fact that Sabili was filing his

Page 309 of 349

Income Tax Returns in Lipa City notwithstanding that he had no business therein
showed that he had actively elected to establish his residence in that city.

The Dissent claims that since the jurisdiction of RDO Lipa City includes both San
Juan and Lipa City, petitioner’s filing of his ITR therein can also support an intent
to remain in San Juan, Batangas - petitioner’s domicile of origin.

However, a simple perusal of the Income Tax Returns and Revenue Official
Receipts for 2007 and 2008 shows that petitioner invariably declares his
residence to be Pinagtong-ulan, Lipa City, rather than San Juan,
Batangas. Hence, while petitioner may be submitting his income tax return in the
73

same RDO, the declaration therein is unmistakable. Petitioner considers Lipa

City to be his domicile.

b) Certification from the Barangay Captain of Pinagtong-ulan

The COMELEC did not consider in the first instance the Certification issued by
Pinagtong-ulan Barangay Captain Dominador Honrade (Honrade) that petitioner
74 

had been residing in Brgy Pinagtong-ulan since 2007. When this oversight was
raised as an issue in petitioner’s Motion for Reconsideration, the COMELEC
brushed it aside on the ground that the said Certification was not sworn to before
a notary public and, hence, "cannot be relied on." Subsequently, petitioner
presented another, substantially identical, Certification from the said Pinagtong-
ulan Barangay Captain, save for the fact that it had now been sworn to before a
notary public.

We disagree with the COMELEC’s treatment of the Barangay Captain’s

Certification and find the same tainted with grave abuse of discretion.

Even without being sworn to before a notary public, Honrade’s Certification would
not only be admissible in evidence, but would also be entitled to due
consideration.

Rule 130, Section 44 of the Rules of Court provides:

SEC. 44. Entries in official records.—Entries in official records made in the

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

Page 310 of 349

In Country Bankers Insurance Corporation v. Lianga Bay and Community Multi-
purpose Cooperative, Inc., we explained that the following three (3) requisites
75 

must concur for entries in official records to be admissible in evidence:

(a) The entry was made by a public officer, or by another person specially
enjoined by law to do so;

(b) It was made by the public officer in the performance of his duties, or by
such other person in the performance of a duty specially enjoined by law;
and

(c) The public officer or other person had sufficient knowledge of the facts
stated by him, which facts must have been acquired by him personally or
through official information.

As to the first requisite, the Barangay Secretary is required by the Local

Government Code to "keep an updated record of all inhabitants of the
barangay." Regarding the second requisite, we have explicitly recognized in
76 

Mitra v. Commission on Elections, that "it is the business of a punong barangay

77 

to know who the residents are in his own barangay." Anent the third requisite, the
Barangay Captain’s exercise of powers and duties concomitant to his position
78 

requires him to be privy to these records kept by the Barangay Secretary.

Accordingly, there is basis in faulting the COMELEC for its failure to consider
Honrade’s Certification on the sole ground that it was initially not notarized.

Meanwhile, the Dissent opines that the sworn affidavit of the barangay chair of
Pinagtong-ulan that petitioner is a resident of Lipa City does not help petitioner’s
case because it was not shown that the term "resident" as used therein carries
the same meaning as domicile, that is, not merely bodily presence but
also, animus manendi or intent to return. This Court has ruled otherwise.

In Mitra v. Commission on Elections, the declaration of Aborlan’s punong

79 

barangay that petitioner resides in his barangay was taken to have the same
meaning as domicile, inasmuch as the said declaration was made in the face of
the Court’s recognition that Mitra "might not have stayed in Aborlan nor in
Palawan for most of 2008 and 2009 because his office and activities as a
Representative were in Manila."

Assuming that the barangay captain’s certification only pertains to petitioner’s

bodily presence in Pinagtong-ulan, still, the COMELEC cannot deny the strength

Page 311 of 349

of this evidence in establishing petitioner’s bodily presence in Pinagtong-ulan
since 2007.

c) Affidavit of petitioner’s common law wife

To substantiate his claim of change of domicile, petitioner also presented the

affidavit of Palomares, wherein the latter swore that she and petitioner began
residing in Lipa City in 2007, and that the funds used to purchase the Lipa
property were petitioner’s personal funds. The COMELEC ruled that the Affidavit
was self-serving for having been executed by petitioner’s common-law wife. Also,
despite the presentation by petitioner of other Affidavits stating that he and
Palomares had lived in Brgy. Pinagtong-ulan since 2007, the latter’s Affidavit was
rejected by the COMELEC for having no independent collaboration.

Petitioner faults the COMELEC’s stand, which it claims to be inconsistent. He

argues that since the property regime between him and Palomares is governed
by Article 148 of the Family Code (based on the parties’ actual contribution) as
the COMELEC stressed, then Palomares’s Affidavit expressly stating that
petitioner’s money alone had been used to purchase the Lipa property
(notwithstanding that it was registered in her name) was not self-serving, but was
in fact, a declaration against interest.

Petitioner’s argument that Palomares’s affidavit was a "declaration against

interest" is, strictly speaking, inaccurate and irrelevant. A declaration against
interest, under the Rules of Civil Procedure, refers to a "declaration made by a
person deceased, or unable to testify against the interest of a declarant, if the
fact asserted in the declaration was at the time it was made so far contrary to
declarant’s own interest, that a reasonable man in his position would not have
made the declaration unless he believed it to be true." A declaration against
80 

interest is an exception to the hearsay rule. As such, it pertains only to the

81 

admissibility of, not the weight accorded to, testimonial evidence.

82

Nevertheless, we see the logic in petitioner’s claim that the COMELEC had
committed grave abuse of discretion in being inconsistent in its stand regarding
Palomares, particularly regarding her assertion that the Lipa property had been
purchased solely with petitioner’s money. If the COMELEC accepts the
registration of the Lipa property in her name to be accurate, her affidavit
disavowing ownership thereof in favor of petitioner was far from self-serving as it
ran counter to her (and her children’s) property interest.

The Dissent states that it was not unreasonable for the COMELEC to believe that
Palomares may have committed misrepresentations in her affidavit considering

Page 312 of 349

that she had perjured herself as an informant on the birth certificates of her
children with respect to the supposed date and place of her marriage to
petitioner. However, this was not the reason propounded by the COMELEC when
it rejected Palomares’ affidavit.

Moreover, it is notable that Palomares’ assertion in her affidavit that she and
petitioner have been living in the Pinagtong-ulan property since April 2007 is
corroborated by other evidence, including the affidavits of Pinagtong-ulan
barangay officials and neighbors.

d) Affidavits from a previous property owner, neighbors, certificate from parish

and designation from socio-civic organization

The Affidavit issued by Leonila Suarez (erstwhile owner of the Lipa house and
83 

lot) states that in April 2007, after she received the down payment for the Lipa
property and signed an agreement that petitioner would settle her bank
obligations in connection with the said transaction, he and Palomares actually
started residing at Pinagtong-ulan. The COMELEC brushed this Affidavit aside
as one that "merely narrates the circumstances surrounding the sale of the
property and mentions in passing that Sabili and Palomares lived in Pinagtong-
ulan since April 2007 up to the present."84

We disagree with the COMELEC’s appreciation of the Suarez Affidavit. Since

she was its owner, transactions for the purchase of the Lipa property was within
her personal knowledge. Ordinarily, this includes the arrangement regarding who
shall pay for the property and when, if ever, it shall be occupied by the buyers.
We thus consider that her statements impact positively on petitioner’s claim of
residence.

The Dissent on the other hand argues that the claim that petitioner started living
in the Lipa house and lot in April 2007 is made dubious by the fact that (1) there
might not be enough time to effect an actual and physical change in residence a
month before the May 2007 elections when petitioner ran for representative of
the 4th District of Batangas; and (2) the Deed of Absolute Sale was notarized,
and the subsequent transfer of ownership in the tax declaration was made, only
in August 2008.

Before further discussing this, it is pertinent to point out that these were not the
reasons adduced by the COMELEC in the assailed Resolutions. Assuming that
the above reasons were the unuttered considerations of the COMELEC in
coming up with its conclusions, such reasoning still exhibits grave abuse of
discretion.

Page 313 of 349

As to the Dissent’s first argument, it must be remembered that a transfer of
domicile/residence need not be completed in one single instance. Thus, in Mitra
v. Commission on Elections, where the evidence showed that in 2008, petitioner
85 

Mitra had leased a small room at Maligaya Feedmills located in Aborlan and, in
2009 purchased in the same locality a lot where he began constructing his
house, we recognized that petitioner "transferred by incremental process to
Aborlan beginning 2008 and concluded his transfer in early 2009" and thus, he
transferred his residence from Puerto Princesa City to Aborlan within the period
required by law. We cannot treat the transfer to the Pinagtong-ulan house any
less than we did Mitra’s transfer to the Maligaya Feedmills room. 1âwphi1

Moreover, the Joint Affidavit of twenty-one (21) Pinagtong-ulan residents,

including former and incumbent barangay officials, attests that petitioner had
begun living in the Pinagtong-ulan house and lot before the May 2007 elections
such that it was where his coordinators for the May 2007 elections went to meet
him. Jacinto Cornejo Sr., the contractor who renovated the Pinagtong-ulan
86 

house when it was bought by petitioner, also swore that petitioner and his family
began living therein even while it was being renovated. Another Affidavit
87 

petitioner adduced was that of Rosalinda Macasaet, a resident of Brgy.

Pinagtong-ulan, who stated that she also sold a lot she owned in favor of
88 

petitioner and Palomares. The latter bought her lot since it was adjacent to the
Lipa house and lot they had earlier acquired. Macasaet also swore that the
couple had actually resided in the house located in Pinagtong-ulan since April
2007, and that she knew this because her own house was very near the couple’s
own. Macasaet’s Affidavit is a positive assertion of petitioner’s actual physical
presence in Brgy. Pinagtong-ulan, Lipa City.

While private respondent had adduced affidavits of two Pinagtong-ulan residents

(that of Violeta Fernandez and Rodrigo Macasaet) attesting that petitioner could
89  90 

not be a resident of Pinagtong-ulan as he was "rarely seen" in the area, these

affidavits were controverted by the Joint affidavit of twenty-one (21) Pinagtong-
ulan residents who plainly accused the two of lying. Meanwhile, the affidavits of
private respondent and Eladio de Torres stating that petitioner is not a resident
91  92 

of Lipa City because he has no work or family there is hardly worthy of credence
since both are residents of Barangay Calamias, which is, and private respondent
does not contest this, about 15 kilometers from Pinagtong-ulan.

As to the Dissent’s second argument, the fact that the notarization of the deed of
absolute sale of the property was made months after April 2007 does not negate
petitioner’s claim that he started residing therein in April 2007. It is clear from the
Affidavit of the property’s seller, Leonila Suarez, that it was not yet fully paid in

Page 314 of 349

April 2007, so it was understandable that a deed of absolute sale was not
executed at the time. Thus:

That initially, the contract to sell was entered into by and between Mr. & Mrs.
Meynardo Asa Sabili and Bernadette Palomares and myself, but eventually the
spouses changed their mind, and after the couple settled all my loan obligations
to the bank, they requested me to put the name of Ms. Bernadette P. Palomares
instead of Mr. & Mrs. Meynardo Asa Sabili and Bernadette Palomares in the
absolute deed of sale;

That it was Mr. Meynardo Asa Sabili who came to my former residence at
Barangay Pinagtong-ulan sometime in the month of April 2007. At that time, Mr.
Meynardo Asa Sabili was still running for Representative (Congressman) in the
4th District of Batangas;

That after payment of the down payment and signing of an agreement that Mr.
Meynardo Asa Sabili will be the one to settle my bank obligations, Mr. & Mrs.
Meynardo A. Sabili and Bernadette Palomares had an actual transfer of their
residence at Barangay Pinagtong-ulan, Lipa City;

That they started living and residing in Pinagtong-ulan in the month of April, 2007
up to this point in time; xxx
93

As to the rest of the documents presented by petitioner, the COMELEC held that
the Memorandum issued by the Guardians Brotherhood Inc. San Jose/Lipa City
Chapter merely declares the designation of petitioner in the organization, without
any showing that residence in the locality was a requirement for that designation.
Meanwhile, the Certificate of Appreciation was nothing more than an
acknowledgment of petitioner’s material and financial support, and not an
indication of residence.

We agree that considered separately, the Guardians Brotherhood Memorandum

and the Pinagtong-ulan Parish Certificate of Appreciation do not establish
petitioner’s residence in Pinagtong-ulan, Lipa City. Nevertheless, coupled with
the fact that petitioner had twice been elected as Provincial Board Member
representing the Fourth District of Batangas, which encompasses Lipa City,
petitioner’s involvement in the religious life of the community, as attested to by
the certificate of appreciation issued to him by the Pinagtong-ulan parish for his
"material and financial support" as President of the Barangay Fiesta Committee
in 2009, as well as his assumption of a leadership role in the socio-civic sphere
of the locality as a member of the advisory body of the Pinagtong-ulan, San
Jose/Lipa City Chapter of the Guardians Brotherhood Inc. , manifests a

Page 315 of 349

significant level of knowledge of and sensitivity to the needs of the said
community. Such, after all, is the rationale for the residency requirement in our
elections laws, to wit:

The Constitution and the law requires residence as a qualification for seeking
and holding elective public office, in order to give candidates the opportunity to
be familiar with the needs, difficulties, aspirations, potentials for growth and all
matters vital to the welfare of their constituencies; likewise, it enables the
electorate to evaluate the office seekers’ qualifications and fitness for the job they
aspire for xxx. 
94

Considering all of the foregoing discussion, it is clear that while separately, each
evidence presented by petitioner might fail to convincingly show the fact of his
residence at Pinagtong-ulan since 2007, collectively, these pieces of evidence
tend to sufficiently establish the said fact.

Petitioner’s actual physical presence in Lipa City is established not only by the
presence of a place (Pinagtong-ulan house and lot) he can actually live in, but
also the affidavits of various persons in Pinagtong-ulan, and the Certification of
its barangay captain. Petitioner’s substantial and real interest in establishing his
domicile of choice in Lipa City is also sufficiently shown not only by the
acquisition of additional property in the area and the transfer of his voter
registration, but also his participation in the community’s socio-civic and religious
life, as well as his declaration in his ITR that he is a resident thereof.

We therefore rule that petitioner has been able to adduce substantial evidence to
demonstrate compliance with the one-year residency requirement for local
elective officials under the law.

In view of this Court’s finding that petitioner has not misrepresented his residence
at Pinagtong-ulan and the duration thereof, there is no need to further discuss
whether there was material and deliberate misrepresentation of the residency
qualification in his COC.1âwphi1

As a final note, we do not lose sight of the fact that Lipa City voters manifested
their own judgment regarding the qualifications of petitioner when they voted for
him, notwithstanding that the issue of his residency qualification had been raised
prior to the elections. Petitioner has garnered the highest number of votes
(55,268 votes as opposed to the 48,825 votes in favor of his opponent, Oscar
Gozos) legally cast for the position of Mayor of Lipa City and has consequently
95 

been proclaimed duly elected municipal Mayor of Lipa City during the last May
2010 elections 96

Page 316 of 349

In this regard, we reiterate our ruling in Frivaldo v. Commission on Elections that
97 

"(t)o successfully challenge a winning candidate's qualifications, the petitioner

must clearly demonstrate that the ineligibility is so patently antagonistic to
constitutional and legal principles that overriding such ineligibility and thereby
giving effect to the apparent will of the people, would ultimately create greater
prejudice to the very democratic institutions and juristic traditions that our
Constitution and laws so zealously protect and promote."

Similarly, in Japzon v. Commission on Elections, we concluded that "when the

98 

evidence of the alleged lack of residence qualification of a candidate for an

elective position is weak or inconclusive and it clearly appears that the purpose
of the law would not be thwarted by upholding the victor's right to the office, the
will of the electorate should be respected. For the purpose of election laws is to
give effect to, rather than frustrate, the will of the voters."

In sum, we grant the Petition not only because petitioner sufficiently established
his compliance with the one-year residency requirement for local elective officials
under the law. We also recognize that "(a)bove and beyond all, the determination
of the true will of the electorate should be paramount. It is their voice, not ours or
of anyone else, that must prevail. This, in essence, is the democracy we continue
to hold sacred."99

WHEREFORE, premises considered, the Petition is GRANTED. The assailed

COMELEC Resolutions dated 26 January 2010 and 17 August 2010 in Florencio
Librea v. Meynardo A. Sabili [SPA No. 09-047(DC)] are ANNULLED. Private
respondent’s Petition to cancel the Certificate of Candidacy of Meynardo A. Sabili
is DENIED. The Status Quo Ante Order issued by this Court on 7 September
2010 is MADE PERMANENT.

Page 317 of 349

G.R. No. 107518 October 8, 1998
PNOC SHIPPING AND TRANSPORT CORPORATION, petitioner, 
vs.
HONORABLE COURT OF APPEALS and MARIA EFIGENIA FISHING
CORPORATION, respondents.
ROMERO, J.:

A party is entitled to adequate compensation only for such pecuniary loss

actually suffered and duly proved. Indeed, basic is the rule that to recover
1

actual damages, the amount of loss must not only be capable of proof but
must actually be proven with a reasonable degree of certainty, premised
upon competent proof or best evidence obtainable of the actual amount
thereof.  The claimant is duty-bound to point out specific facts that afford a
2

basis for measuring whatever compensatory damages are borne.  A court3

cannot merely rely on speculations, conjectures, or guesswork as to the

fact and amount of damages  as well as hearsay or uncorroborated
4 5

testimony whose truth is suspect.  Such are the jurisprudential precepts

6

that the Court now applies in resolving the instant petition.

The records disclose that in the early morning of September 21, 1977,
the M/V Maria Efigenia XV, owned by private respondent Maria Efigenia
Fishing Corporation, was navigating the waters near Fortune Island in
Nasugbu, Batangas on its way to Navotas, Metro Manila when it collided
with the vessel Petroparcel which at the time was owned by the Luzon
Stevedoring Corporation (LSC).

After investigation was conducted by the Board of Marine Inquiry,

Philippine Coast Guard Commandant Simeon N. Alejandro rendered a
decision finding the Petroparcel at fault. Based on this finding by the Board
and after unsuccessful demands on petitioner,   private respondent sued
7

the LSC and the Petroparcelcaptain, Edgardo Doruelo, before the then

Court of First Instance of Caloocan City, paying thereto the docket fee of
one thousand two hundred fifty-two pesos (P1,252.00) and the legal
research fee of two pesos (P2.00).   In particular, private respondent prayed
8

for an award of P692,680.00, allegedly representing the value of the fishing

nets, boat equipment and cargoes of M/V Maria Efigenia XV, with interest at
the legal rate plus 25% thereof as attorney's fees. Meanwhile, during the
pendency of the case, petitioner PNOC Shipping and Transport
Corporation sought to be substituted in place of LSC as it had already
acquired ownership of the Petroparcel.  9

Page 318 of 349

For its part, private respondent later sought the amendment of its
complaint on the ground that the original complaint failed to plead for the
recovery of the lost value of the hull of M/V Maria Efigenia
XV.  Accordingly, in the amended complaint, private respondent averred
10

that M/V Maria Efigenia XV had an actual value of P800,000.00 and that,

after deducting the insurance payment of P200,000.00, the amount of
P600,000.00 should likewise be claimed. The amended complaint also
alleged that inflation resulting from the devaluation of the Philippine peso
had affected the replacement value of the hull of the vessel, its equipment
and its lost cargoes, such that there should be a reasonable determination
thereof. Furthermore, on account of the sinking of the vessel, private
respondent supposedly incurred unrealized profits and lost business
opportunities that would thereafter be proven. 11

Subsequently, the complaint was further amended to include petitioner as

a defendant   which the lower court granted in its order of September 16,
12

1985.   After petitioner had filed its answer to the second amended
13

complaint, on February 5, 1987, the lower court issued a pre-trial

order   containing, among other things, a stipulations of facts, to wit:
14

1. On 21 September 1977, while the fishing boat "M/V MARIA

EFIGENIA" owned by plaintiff was navigating in the vicinity of
Fortune Island in Nasugbu, Batangas, on its way to Navotas,
Metro Manila, said fishing boat was hit by the LSCO tanker
"Petroparcel" causing the former to sink.

2. The Board of Marine Inquiry conducted an investigation of

this marine accident and on 21 November 1978, the
Commandant of the Philippine Coast Guard, the Honorable
Simeon N. Alejandro, rendered a decision finding the cause of
the accident to be the reckless and imprudent manner in which
Edgardo Doruelo navigated the LSCO "Petroparcel" and
declared the latter vessel at fault.

3. On 2 April 1978, defendant Luzon Stevedoring Corporation

(LUSTEVECO), executed in favor of PNOC Shipping and
Transport Corporation a Deed of Transfer involving several
tankers, tugboats, barges and pumping stations, among which
was the LSCO Petroparcel.

4. On the same date on 2 April 1979 (sic), defendant PNOC STC

again entered into an Agreement of Transfer with co-defendant

Page 319 of 349

 Lusteveco whereby all the business properties and other assets
appertaining to the tanker and bulk oil departments including
the motor tanker LSCO Petroparcel of defendant Lusteveco
were sold to PNOC STC.

5. The aforesaid agreement stipulates, among others, that

PNOC-STC assumes, without qualifications, all obligations
arising from and by virtue of all rights it obtained over the
LSCO "Petroparcel".

6. On 6 July 1979, another agreement between defendant

LUSTEVECO and PNOC-STC was executed wherein Board of
Marine Inquiry Case No. 332 (involving the sea accident of 21
September 1977) was specifically identified and assumed by the
latter.

7. On 23 June 1979, the decision of Board of Marine Inquiry was

affirmed by the Ministry of National Defense, in its decision
dismissing the appeal of Capt. Edgardo Doruelo and Chief mate
Anthony Estenzo of LSCO "Petroparcel".

8. LSCO "Petroparcel" is presently owned and operated by

PNOC-STC and likewise Capt. Edgardo Doruelo is still in their
employ.

9. As a result of the sinking of M/V Maria Efigenia caused by the

reckless and imprudent manner in which LSCO Petroparcel was
navigated by defendant Doruelo, plaintiff suffered actual
damages by the loss of its fishing nets, boat equipments (sic)
and cargoes, which went down with the ship when it sank the
replacement value of which should be left to the sound
discretion of this Honorable Court.

After trial, the lower court   rendered on November 18, 1989 its decision
15

disposing of Civil Case No. C-9457 as follows:

WHEREFORE, and in view of the foregoing, judgment is hereby

rendered in favor of the plaintiff and against the defendant
PNOC Shipping & Transport Corporation, to pay the plaintiff:

Page 320 of 349

 a. The sum of P6,438,048.00 representing the value
of the fishing boat with interest from the date of the
filing of the complaint at the rate of 6% per annum;

b. The sum of P50,000.00 as and for attorney's fees;

and

c. The costs of suit.

The counterclaim is hereby DISMISSED for lack of merit.

Likewise, the case against defendant Edgardo Doruelo is
hereby DISMISSED, for lack of jurisdiction.

SO ORDERED.

In arriving at the above disposition, the lower court cited the evidence
presented by private respondent consisting of the testimony of its general
manager and sole witness, Edilberto del Rosario. Private respondent's
witness testified that M/V Maria Efigenia XV was owned by private
respondent per Exhibit A, a certificate of ownership issued by the
Philippine Coast Guard showing that M/V Maria Efigenia XV was a wooden
motor boat constructed in 1965 with 128.23 gross tonnage. According to
him, at the time the vessel sank, it was then carrying 1,060 tubs (bañeras)
of assorted fish the value of which was never recovered. Also lost with the
vessel were two cummins engines (250 horsepower), radar, pathometer
and compass. He further added that with the loss of his flagship vessel in
his fishing fleet of fourteen (14) vessels, he was constrained to hire the
services of counsel whom he paid P10,000 to handle the case at the Board
of Marine Inquiry and P50,000.00 for commencing suit for damages in the
lower court.

As to the award of P6,438,048.00 in actual damages, the lower court took

into account the following pieces of documentary evidence that private
respondent proffered during trial:

(a) Exhibit A — certified xerox copy of the certificate

of ownership of M/V Maria Efigenia XV;

(b) Exhibit B — a document titled "Marine Protest"

executed by Delfin Villarosa, Jr. on September 22,
1977 stating that as a result of the collision, the M/V
Maria Efigenia XV sustained a hole at its left side

Page 321 of 349

that caused it to sink with its cargo of
1,050 bañeras valued at P170,000.00;

(c) Exhibit C — a quotation for the construction of a

95-footer trawler issued by Isidoro A. Magalong of I.
A. Magalong Engineering and Construction on
January 26, 1987 to Del Rosario showing that
construction of such trawler would cost
P2,250,000.00;

(d) Exhibit D — pro forma invoice No. PSPI-05/87-

NAV issued by E.D. Daclan of Power Systems,
Incorporated on January 20, 1987 to Del Rosario
showing that two (2) units of CUMMINS Marine
Engine model N855-M, 195 bhp. at 1800 rpm. would
cost P1,160,000.00;

(e) Exhibit E — quotation of prices issued by Scan

Marine Inc. on January 20, 1987 to Del Rosario
showing that a unit of Furuno Compact Daylight
Radar, Model FR-604D, would cost P100,000.00
while a unit of Furuno Color Video Sounder, Model
FCV-501 would cost P45,000.00 so that the two units
would cost P145,000.00;

(f) Exhibit F — quotation of prices issued by

Seafgear Sales, Inc. on January 21, 1987 to Del
Rosario showing that two (2) rolls of nylon rope (5"
cir. X 300fl.) would cost P140,000.00; two (2) rolls of
nylon rope (3" cir. X 240fl.), P42,750.00; one (1)
binocular (7 x 50), P1,400.00, one (1) compass (6"),
P4,000.00 and 50 pcs. of floats, P9,000.00 or a total
of P197,150.00;

(g) Exhibit G — retainer agreement between Del

Rosario and F. Sumulong Associates Law Offices
stipulating an acceptance fee of P5,000.00, per
appearance fee of P400.00, monthly retainer of
P500.00, contingent fee of 20% of the total amount
recovered and that attorney's fee to be awarded by
the court should be given to Del Rosario; and

Page 322 of 349

 (h) Exhibit H — price quotation issued by Seafgear
Sales, Inc. dated April 10, 1987 to Del Rosario
showing the cost of poly nettings as: 50 rolls of
400/18 3kts. 100md x 100mtrs., P70,000.00; 50 rolls
of 400/18 5kts. 100md x 100mtrs., P81,500.00; 50
rolls of 400/18 8kts. 100md x 100mtrs., P116,000.00,
and 50 rolls of 400/18 10kts. 100md x 100mtrs.,
P146,500 and bañera (tub) at P65.00 per piece or a
total of P414,065.00.

The lower court held that the prevailing replacement value of P6,438,048.00
of the fishing boat and all its equipment would regularly increase at 30%
every year from the date the quotations were given.

On the other hand, the lower court noted that petitioner only presented
Lorenzo Lazaro, senior estimator at PNOC Dockyard & Engineering
Corporation, as sole witness and it did not bother at all to offer any
documentary evidence to support its position. Lazaro testified that the
price quotations submitted by private respondent were "excessive" and
that as an expert witness, he used the quotations of his suppliers in
making his estimates. However, he failed to present such quotations of
prices from his suppliers, saying that he could not produce a breakdown of
the costs of his estimates as it was "a sort of secret scheme." For this
reason, the lower court concluded:

Evidently, the quotation of prices submitted by the plaintiff

relative to the replacement value of the fishing boat and its
equipments in the tune of P6,438,048.00 which were lost due to
the recklessness and imprudence of the herein defendants
were not rebutted by the latter with sufficient evidence. The
defendants through their sole witness Lorenzo Lazaro relied
heavily on said witness' bare claim that the amount afore-said
is excessive or bloated, but they did not bother at all to present
any documentary evidence to substantiate such claim.
Evidence to be believed must not only proceed from the mouth
of the credible witness, but it must be credible in itself. (Vda. de
Bonifacio vs. B. L. T. Bus Co., Inc. L-26810, August 31, 1970).

Aggrieved, petitioner filed a motion for the reconsideration of the lower

court's decision contending that: (1) the lower court erred in holding it
liable for damages; that the lower court did not acquire jurisdiction over the
case by paying only P1,252.00 as docket fee; (2) assuming that plaintiff was

Page 323 of 349

entitled to damages, the lower court erred in awarding an amount greater
than that prayed for in the second amended complaint; and (3) the lower
court erred when it failed to resolve the issues it had raised in its
memorandum.  Petitioner likewise filed a supplemental motion for
16

reconsideration expounding on whether the lower court acquired

jurisdiction over the subject matter of the case despite therein plaintiff's
failure to pay the prescribed docket fee.  17

On January 25, 1990, the lower court declined reconsideration for lack of
merit.   Apparently not having received the order denying its motion for
18

reconsideration, petitioner still filed a motion for leave to file a reply to

private respondent's opposition to said motion.   Hence, on February 12,
19

1990, the lower court denied said motion for leave to file a reply on the
ground that by the issuance of the order of January 25, 1990, said motion
had become moot and academic.  20

Unsatisfied with the lower court's decision, petitioner elevated the matter to
the Court of Appeals which, however, affirmed the same in toto on October
14, 1992.   On petitioner's assertion that the award of P6,438,048.00 was not
21

convincingly proved by competent and admissible evidence, the Court of

Appeals ruled that it was not necessary to qualify Del Rosario as an expert
witness because as the owner of the lost vessel, "it was well within his
knowledge and competency to identify and determine the equipment
installed and the cargoes loaded" on the vessel. Considering the
documentary evidence presented as in the nature of market reports or
quotations, trade journals, trade circulars and price lists, the Court of
Appeals held, thus:

Consequently, until such time as the Supreme Court

categorically rules on the admissibility or inadmissibility of this
class of evidence, the reception of these documentary exhibits
(price quotations) as evidence rests on the sound discretion of
the trial court. In fact, where the lower court is confronted with
evidence which appears to be of doubtful admissibility, the
judge should declare in favor of admissibility rather than of
non-admissibility (The Collector of Palakadhari, 124 [1899], p.
13, cited in Francisco, Revised Rules of Court, Evidence,
Volume VII, Part I, 1990 Edition, p. 18). Trial courts are enjoined
to observe the strict enforcement of the rules of evidence which
crystallized through constant use and practice and are very
useful and effective aids in the search for truth and for the

Page 324 of 349

 effective administration of justice. But in connection with
evidence which may appear to be of doubtful relevancy or
incompetency or admissibility, it is the safest policy to be
liberal, not rejecting them on doubtful or technical grounds, but
admitting them unless plainly irrelevant, immaterial or
incompetent, for the reason that their rejection places them
beyond the consideration of the court. If they are thereafter
found relevant or competent, can easily be remedied by
completely discarding or ignoring them. (Banaria vs.
Banaria, et al., C.A. No. 4142, May 31, 1950; cited in
Francisco, Supra). [Emphasis supplied].

Stressing that the alleged inadmissible documentary exhibits were never

satisfactorily rebutted by appellant's own sole witness in the person of
Lorenzo Lazaro, the appellate court found that petitioner ironically situated
itself in an "inconsistent posture by the fact that its own witness,
admittedly an expert one, heavily relies on the very same pieces of
evidence (price quotations) appellant has so vigorously objected to as
inadmissible evidence." Hence, it concluded:

. . . The amount of P6,438,048.00 was duly established at the

trial on the basis of appellee's documentary exhibits (price
quotations) which stood uncontroverted, and which already
included the amount by way of adjustment as prayed for in the
amended complaint. There was therefore no need for appellee
to amend the second amended complaint in so far as to the
claim for damages is concerned to conform with the evidence
presented at the trial. The amount of P6,438,048.00 awarded is
clearly within the relief prayed for in appellee's second
amended complaint.

On the issue of lack of jurisdiction, the respondent court held that following
the ruling in Sun Insurance Ltd. v. Asuncion,   the additional docket fee
22

that may later on be declared as still owing the court may be enforced as a
lien on the judgment.

Hence, the instant recourse.

In assailing the Court of Appeals' decision, petitioner posits the view that
the award of P6,438,048 as actual damages should have been in light of
these considerations, namely: (1) the trial court did not base such award on
the actual value of the vessel and its equipment at the time of loss in 1977;

Page 325 of 349

(2) there was no evidence on extraordinary inflation that would warrant an
adjustment of the replacement cost of the lost vessel, equipment and
cargo; (3) the value of the lost cargo and the prices quoted in respondent's
documentary evidence only amount to P4,336,215.00; (4) private
respondent's failure to adduce evidence to support its claim for unrealized
profit and business opportunities; and (5) private respondent's failure to
prove the extent and actual value of damages sustained as a result of the
1977 collision of the vessels. 
23

Under Article 2199 of the Civil Code, actual or compensatory damages are
those awarded in satisfaction of, or in recompense for, loss or injury
sustained. They proceed from a sense of natural justice and are designed
to repair the wrong that has been done, to compensate for the injury
inflicted and not to impose a penalty.   In actions based on torts or quasi-
24

delicts, actual damages include all the natural and probable consequences
of the act or omission complained of.   There are two kinds of actual or
25

compensatory damages: one is the loss of what a person already

possesses (daño emergente), and the other is the failure to receive as a
benefit that which would have pertained to him (lucro cesante).   Thus:
26

Where goods are destroyed by the wrongful act of the

defendant the plaintiff is entitled to their value at the time of
destruction, that is, normally, the sum of money which he
would have to pay in the market for identical or essentially
similar goods, plus in a proper case damages for the loss of
use during the period before replacement. In other words, in the
case of profit-earning chattels, what has to be assessed is the
value of the chattel to its owner as a going concern at the time
and place of the loss, and this means, at least in the case of
ships, that regard must be had to existing and pending
engagements, . . .

. . . . If the market value of the ship reflects the fact that it is in

any case virtually certain of profitable employment, then
nothing can be added to that value in respect of charters
actually lost, for to do so would be pro tanto to compensate the
plaintiff twice over. On the other hand, if the ship is valued
without reference to its actual future engagements and only in
the light of its profit-earning potentiality, then it may be
necessary to add to the value thus assessed the anticipated
profit on a charter or other engagement which it was unable to

Page 326 of 349

 fulfill. What the court has to ascertain in each case is the
"capitalised value of the vessel as a profit-earning machine not
in the abstract but in view of the actual circumstances,"
without, of course, taking into account considerations which
were too remote at the time of the loss.   [Emphasis supplied].
27

As stated at the outset, to enable an injured party to recover actual or

compensatory damages, he is required to prove the actual amount of loss
with reasonable degree of certainty premised upon competent proof and on
the best evidence available.   The burden of proof is on the party who
28

would be defeated if no evidence would be presented on either side. He

must establish his case by a preponderance of evidence which means that
the evidence, as a whole, adduced by one side is superior to that of the
other.   In other words, damages cannot be presumed and courts, in
29

making an award must point out specific facts that could afford a basis for
measuring whatever compensatory or actual damages are borne.  30

In this case, actual damages were proven through the sole testimony of
private respondent's general manager and certain pieces of documentary
evidence. Except for Exhibit B where the value of the 1,050 bañeras of fish
were pegged at their September 1977 value when the collision happened,
the pieces of documentary evidence proffered by private respondent with
respect to items and equipment lost show similar items and equipment
with corresponding prices in early 1987 or approximately ten (10) years
after the collision. Noticeably, petitioner did not object to the exhibits in
terms of the time index for valuation of the lost goods and equipment. In
objecting to the same pieces of evidence, petitioner commented that these
were not duly authenticated and that the witness (Del Rosario) did not have
personal knowledge on the contents of the writings and neither was he an
expert on the subjects thereof.   Clearly ignoring petitioner's objections to
31

the exhibits, the lower court admitted these pieces of evidence and gave
them due weight to arrive at the award of P6,438,048.00 as actual damages.

The exhibits were presented ostensibly in the course of Del Rosario's

testimony. Private respondent did not present any other witnesses
especially those whose signatures appear in the price quotations that
became the bases of the award. We hold, however, that the price
quotations are ordinary private writings which under the Revised Rules of
Court should have been proffered along with the testimony of the authors
thereof. Del Rosario could not have testified on the veracity of the contents
of the writings even though he was the seasoned owner of a fishing fleet

Page 327 of 349

because he was not the one who issued the price quotations. Section 36,
Rule 130 of the Revised Rules of Court provides that a witness can testify
only to those facts that he knows of his personal knowledge.

For this reason, Del Rosario's claim that private respondent incurred
losses in the total amount of P6,438,048.00 should be admitted with
extreme caution considering that, because it was a bare assertion, it
should be supported by independent evidence. Moreover, because he was
the owner of private respondent corporation   whatever testimony he would
32

give with regard to the value of the lost vessel, its equipment and cargoes
should be viewed in the light of his self-interest therein. We agree with the
Court of Appeals that his testimony as to the equipment installed and the
cargoes loaded on the vessel should be given credence   considering his
33

familiarity thereto. However, we do not subscribe to the conclusion that his

valuation of such equipment, cargo and the vessel itself should be
accepted as gospel truth.   We must, therefore, examine the documentary
34

evidence presented to support Del Rosario's claim as regards the amount

of losses.

The price quotations presented as exhibits partake of the nature of hearsay

evidence considering that the persons who issued them were not
presented as witnesses.   Any evidence, whether oral or documentary, is
35

hearsay if its probative value is not based on the personal knowledge of

the witness but on the knowledge of another person who is not on the
witness stand. Hearsay evidence, whether objected to or not, has no
probative value unless the proponent can show that the evidence falls
within the exceptions to the hearsay evidence rule.   On this point, we
36

believe that the exhibits do not fall under any of the exceptions provided
under Sections 37 to 47 of Rule 130.  37

It is true that one of the exceptions to the hearsay rule pertains to

"commercial lists and the like" under Section 45, Rule 130 of the Revised
Rules on Evidence. In this respect, the Court of Appeals considered private
respondent's exhibits as "commercial lists." It added, however, that these
exhibits should be admitted in evidence "until such time as the Supreme
Court categorically rules on the admissibility or inadmissibility of this class
of evidence" because "the reception of these documentary exhibits (price
quotations) as evidence rests on the sound discretion of the trial
court."   Reference to Section 45, Rule 130, however, would show that the
38

conclusion of the Court of Appeals on the matter was arbitrarily arrived at.
This rule states:

Page 328 of 349

 Commercial lists and the like. — Evidence of statements of
matters of interest to persons engaged in an occupation
contained in a list, register, periodical, or other published
compilation is admissible as tending to prove the truth of any
relevant matter so stated if that compilation is published for use
by persons engaged in that occupation and is generally used
and relied upon by them there.

Under Section 45 of the aforesaid Rule, a document is a commercial list if:

(1) it is a statement of matters of interest to persons engaged in an
occupation; (2) such statement is contained in a list, register, periodical or
other published compilation; (3) said compilation is published for the use
of persons engaged in that occupation, and (4) it is generally used and
relied upon by persons in the same occupation.

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

D, E, F and H   are not "commercial lists" for these do not belong to the
39

category of "other published compilations" under Section 45 aforequoted.

Under the principle of ejusdem generis, "(w)here general words follow an
enumeration of persons or things, by words of a particular and specific
meaning, such general words are not to be construed in their widest extent,
but are to be held as applying only to persons or things of the same kind or
class as those specifically mentioned."   The exhibits mentioned are mere
40

price quotations issued personally to Del Rosario who requested for them
from dealers of equipment similar to the ones lost at the collision of the two
vessels. These are not published in any list, register, periodical or other
compilation on the relevant subject matter. Neither are these "market
reports or quotations" within the purview of "commercial lists" as these are
not "standard handbooks or periodicals, containing data of everyday
professional need and relied upon in the work of the occupation."   These
41

are simply letters responding to the queries of Del Rosario. Thus, take for
example Exhibit D which reads:

January 20, 1987

PROFORMA INVOICE NO. PSPI-05/87-NAV

MARIA EFIGINIA FISHING CORPORATION

Navotas, Metro Manila

Attention: MR. EDDIE DEL ROSARIO

Page 329 of 349

 Gentlemen:

In accordance to your request, we are pleated to quote our

Cummins Marine Engine, to wit.

Two (2) units CUMMINS Marine Engine

model N855-M, 195 bhp. at 1800 rpm., 6-
cylinder in-line, 4-stroke cycle, natural
aspirated, 5 1/2 in. x 6 in. bore and
stroke, 855 cu. In. displacement, keel-
cooled, electric starting coupled with
Twin-Disc Marine gearbox model MG-
509, 4.5:1 reduction ratio, includes oil
cooler, companion flange, manual and
standard accessories as per attached
sheet.

Price FOB Manila P580,000.00/unit

Total FOB Manila P1,160,000.00

TERMS : CASH

DELIVERY : 60-90 days from date of order.

VALIDITY : Subject to our final confirmation.

WARRANTY : One (1) full year against factory

defect.

Very truly yours,

POWER SYSTEMS, INC.

(Sgd.) E. D. Daclan

To be sure, letters and telegrams are admissible in evidence but these are,
however, subject to the general principles of evidence and to various rules
relating to documentary evidence.   Hence, in one case, it was held that a
42

letter from an automobile dealer offering an allowance for an automobile

upon purchase of a new automobile after repairs had been completed, was
not a "price current" or "commercial list" within the statute which made

Page 330 of 349

such items presumptive evidence of the value of the article specified
therein. The letter was not admissible in evidence as a "commercial list"
even though the clerk of the dealer testified that he had written the letter in
due course of business upon instructions of the dealer.  43

But even on the theory that the Court of Appeals correctly ruled on the
admissibility of those letters or communications when it held that unless
"plainly irrelevant, immaterial or incompetent," evidence should better be
admitted rather than rejected on "doubtful or technical grounds,"   the 44

same pieces of evidence, however, should not have been given probative
weight. This is a distinction we wish to point out. Admissibility of evidence
refers to the question of whether or not the circumstance (or evidence) is
to considered at all.   On the other hand, the probative value of evidence
45

refers to the question of whether or not it proves an issue.   Thus, a letter

46

may be offered in evidence and admitted as such but its evidentiary weight
depends upon the observance of the rules on evidence. Accordingly, the
author of the letter should be presented as witness to provide the other
party to the litigation the opportunity to question him on the contents of the
letter. Being mere hearsay evidence, failure to present the author of the
letter renders its contents suspect. As earlier stated, hearsay evidence,
whether objected to or not, has no probative value. Thus:

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

evidence admitted without objection. Some hold that when
hearsay has been admitted without objection, the same may be
considered as any other properly admitted testimony. Others
maintain that it is entitled to no more consideration than if it
had been excluded.

The rule prevailing in this jurisdiction is the latter one. Our

Supreme Court held that although the question of admissibility
of evidence can not be raised for the first time on appeal, yet if
the evidence is hearsay it has no probative value and should be
disregarded whether objected to or not. "If no objection is
made" — quoting Jones on Evidence — "it (hearsay) becomes
evidence by reason of the want of such objection even though
its admission does not confer upon it any new attribute in point
of weight. Its nature and quality remain the same, so far as its
intrinsic weakness and incompetency to satisfy the mind are
concerned, and as opposed to direct primary evidence, the
latter always prevails.

Page 331 of 349

 The failure of the defense counsel to object to the presentation
of incompetent evidence, like hearsay evidence or evidence
that violates the rules of res inter alios acta, or his failure to ask
for the striking out of the same does not give such evidence
any probative value. But admissibility of evidence should not
be equated with weight of evidence. Hearsay evidence whether
objected to or not has no probative value.  47

Accordingly, as stated at the outset, damages may not be awarded on the

basis of hearsay evidence.  48

Nonetheless, the non-admissibility of said exhibits does not mean that it

totally deprives private respondent of any redress for the loss of its vessel.
This is because in Lufthansa German Airlines v. Court of Appeals, 49 the
Court said:

In the absence of competent proof on the actual damage

suffered, private respondent is "entitled to nominal
damages which, as the law says, is adjudicated in order that a
right of the plaintiff, which has been violated or invaded by
defendant, may be vindicated and recognized, and not for the
purpose of indemnifying the plaintiff for any loss suffered."
[Emphasis supplied].

Nominal damages are awarded in every obligation arising from law,

contracts, quasi-contracts, acts or omissions punished by law, and quasi-
delicts, or in every case where property right has been invaded.  Under 50

Article 2223 of the Civil Code, "(t)he adjudication of nominal damages shall
preclude further contest upon the right involved and all accessory
questions, as between the parties to the suit, or their respective heirs and
assigns."

Actually, nominal damages are damages in name only and not in fact.
Where these are allowed, they are not treated as an equivalent of a wrong
inflicted but simply in recognition of the existence of a technical
injury.   However, the amount to be awarded as nominal damages shall be
51

equal or at least commensurate to the injury sustained by private

respondent considering the concept and purpose of such damages.   The 52

amount of nominal damages to be awarded may also depend on certain

special reasons extant in the case.  53

Page 332 of 349

Applying now such principles to the instant case, we have on record the
fact that petitioner's vesselPetroparcel was at fault as well as private
respondent's complaint claiming the amount of P692,680.00 representing
the fishing nets, boat equipment and cargoes that sunk with the M/V Maria
Efigenia XV. In its amended complaint, private respondent alleged that the
vessel had an actual value of P800,000.00 but it had been paid insurance in
the amount of P200,000.00 and, therefore, it claimed only the amount of
P600,000.00. Ordinarily, the receipt of insurance payments should diminish
the total value of the vessel quoted by private respondent in his complaint
considering that such payment is causally related to the loss for which it
claimed compensation. This Court believes that such allegations in the
original and amended complaints can be the basis for determination of a
fair amount of nominal damages inasmuch as a complaint alleges the
ultimate facts constituting the plaintiffs cause of
action.   Private respondent should be bound by its allegations on the
54

amount of its claims.

With respect to petitioner's contention that the lower court did not acquire
jurisdiction over the amended complaint increasing the amount of
damages claimed to P600,000.00, we agree with the Court of Appeals that
the lower court acquired jurisdiction over the case when private
respondent paid the docket fee corresponding to its claim in its original
complaint. Its failure to pay the docket fee corresponding to its increased
claim for damages under the amended complaint should not be considered
as having curtailed the lower court's jurisdiction. Pursuant to the ruling
in Sun Insurance Office, Ltd. (SIOL) v. Asuncion,   the unpaid docket fee
55

should be considered as a lien on the judgment even though private

respondent specified the amount of P600,000.00 as its claim for damages in
its amended complaint.

Moreover, we note that petitioner did not question at all the jurisdiction of
the lower court on the ground of insufficient docket fees in its answers to
both the amended complaint and the second amended complaint. It did so
only in its motion for reconsideration of the decision of the lower court
after it had received an adverse decision. As this Court held in Pantranco
North Express, Inc. v. Court of Appeals,   participation in all stages of the
56

case before the trial court, that included invoking its authority in asking for
affirmative relief, effectively barred petitioner by estoppel from challenging
the court's jurisdiction. Notably, from the time it filed its answer to the
second amended complaint on April 16, 1985,   petitioner did not question
57

the lower court's jurisdiction. It was only on December 29, 1989   when it
58

Page 333 of 349

filed its motion for reconsideration of the lower court's decision that
petitioner raised the question of the lower court's lack of jurisdiction.
Petitioner thus foreclosed its right to raise the issue of jurisdiction by its
own inaction.

WHEREFORE, the challenged decision of the Court of Appeals dated

October 14, 1992 in CA-G.R. CV No. 26680 affirming that of the Regional
Trial Court of Caloocan City, Branch 121, is hereby MODIFIED insofar as it
awarded actual damages to private respondent Maria Efigenia Fishing
Corporation in the amount of P6,438,048.00 for lack of evidentiary bases
therefor. Considering the fact, however, that: (1) technically petitioner
sustained injury but which, unfortunately, was not adequately and properly
proved, and (2) this case has dragged on for almost two decades, we
believe that an award of Two Million (P2,000,000.00)   in favor of private
59

respondent as and for nominal damages is in order.

Page 334 of 349

G.R. No. 150157             January 25, 2007
MAURICIO MANLICLIC and PHILIPPINE RABBIT BUS LINES,
INC., Petitioners, 
vs.
MODESTO CALAUNAN, Respondent.
DECISION
CHICO-NAZARIO, J.:

Assailed before Us is the decision1 of the Court of Appeals in CA-G.R. CV No.

55909 which affirmed in toto the decision2 of the Regional Trial Court (RTC) of
Dagupan City, Branch 42, in Civil Case No. D-10086, finding petitioners Mauricio
Manliclic and Philippine Rabbit Bus Lines, Inc. (PRBLI) solidarily liable to pay
damages and attorney’s fees to respondent Modesto Calaunan.

The factual antecedents are as follows:

The vehicles involved in this case are: (1) Philippine Rabbit Bus No. 353 with
plate number CVD-478, owned by petitioner PRBLI and driven by petitioner
Mauricio Manliclic; and (2) owner-type jeep with plate number PER-290, owned
by respondent Modesto Calaunan and driven by Marcelo Mendoza.

At around 6:00 to 7:00 o’clock in the morning of 12 July 1988, respondent

Calaunan, together with Marcelo Mendoza, was on his way to Manila from
Pangasinan on board his owner-type jeep. The Philippine Rabbit Bus was
likewise bound for Manila from Concepcion, Tarlac. At approximately Kilometer
40 of the North Luzon Expressway in Barangay Lalangan, Plaridel, Bulacan, the
two vehicles collided. The front right side of the Philippine Rabbit Bus hit the rear
left side of the jeep causing the latter to move to the shoulder on the right and
then fall on a ditch with water resulting to further extensive damage. The bus
veered to the left and stopped 7 to 8 meters from point of collision.

Respondent suffered minor injuries while his driver was unhurt. He was first
brought for treatment to the Manila Central University Hospital in Kalookan City
by Oscar Buan, the conductor of the Philippine Rabbit Bus, and was later
transferred to the Veterans Memorial Medical Center.

By reason of such collision, a criminal case was filed before the RTC of Malolos,
Bulacan, charging petitioner Manliclic with Reckless Imprudence Resulting in
Damage to Property with Physical Injuries, docketed as Crim. Case No. 684-M-
89. Subsequently on 2 December 1991, respondent filed a complaint for
damages against petitioners Manliclic and PRBLI before the RTC of Dagupan
City, docketed as Civil Case No. D-10086. The criminal case was tried ahead of

Page 335 of 349

the civil case. Among those who testified in the criminal case were respondent
Calaunan, Marcelo Mendoza and Fernando Ramos.

In the civil case (now before this Court), the parties admitted the following:

1. The parties agreed on the capacity of the parties to sue and be sued as
well as the venue and the identities of the vehicles involved;

2. The identity of the drivers and the fact that they are duly licensed;

3. The date and place of the vehicular collision;

4. The extent of the injuries suffered by plaintiff Modesto Calaunan and the
existence of the medical certificate;

5. That both vehicles were going towards the south; the private jeep being
ahead of the bus;

6. That the weather was fair and the road was well paved and straight,
although there was a ditch on the right side where the jeep fell into.3

When the civil case was heard, counsel for respondent prayed that the
transcripts of stenographic notes (TSNs)4 of the testimonies of respondent
Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case be
received in evidence in the civil case in as much as these witnesses are not
available to testify in the civil case.

Francisco Tuliao testified that his brother-in-law, respondent Calaunan, left for
abroad sometime in November, 1989 and has not returned since then. Rogelio
Ramos took the stand and said that his brother, Fernando Ramos, left for
Amman, Jordan, to work. Rosalia Mendoza testified that her husband, Marcelo
Mendoza, left their residence to look for a job. She narrated that she thought her
husband went to his hometown in Panique, Tarlac, when he did not return after
one month. She went to her husband’s hometown to look for him but she was
informed that he did not go there. 1awphil.net

The trial court subpoenaed the Clerk of Court of Branch 8, RTC, Malolos,
Bulacan, the court where Criminal Case No. 684-M-89 was tried, to bring the
TSNs of the testimonies of respondent Calaunan,5 Marcelo Mendoza6 and
Fernando Ramos7 in said case, together with other documentary evidence
marked therein. Instead of the Branch Clerk of Court, it was Enrique Santos
Guevara, Court Interpreter, who appeared before the court and identified the

Page 336 of 349

TSNs of the three afore-named witnesses and other pertinent documents he had
brought.8 Counsel for respondent wanted to mark other TSNs and documents
from the said criminal case to be adopted in the instant case, but since the same
were not brought to the trial court, counsel for petitioners compromised that said
TSNs and documents could be offered by counsel for respondent as rebuttal
evidence.

For the defendants, petitioner Manliclic and bus conductor Oscar Buan testified.
The TSN9 of the testimony of Donato Ganiban, investigator of the PRBLI, in
Criminal Case No. 684-M-89 was marked and allowed to be adopted in the civil
case on the ground that he was already dead.

Respondent further marked, among other documents, as rebuttal evidence, the

TSNs10 of the testimonies of Donato Ganiban, Oscar Buan and petitioner
Manliclic in Criminal Case No. 684-M-89.

The disagreement arises from the question: Who is to be held liable for the
collision?

Respondent insists it was petitioner Manliclic who should be liable while the latter
is resolute in saying it was the former who caused the smash up.

The versions of the parties are summarized by the trial court as follows:

The parties differed only on the manner the collision between the two (2) vehicles
took place. According to the plaintiff and his driver, the jeep was cruising at the
speed of 60 to 70 kilometers per hour on the slow lane of the expressway when
the Philippine Rabbit Bus overtook the jeep and in the process of overtaking the
jeep, the Philippine Rabbit Bus hit the rear of the jeep on the left side. At the time
the Philippine Rabbit Bus hit the jeep, it was about to overtake the jeep. In other
words, the Philippine Rabbit Bus was still at the back of the jeep when the jeep
was hit. Fernando Ramos corroborated the testimony of the plaintiff and Marcelo
Mendoza. He said that he was on another jeep following the Philippine Rabbit
Bus and the jeep of plaintiff when the incident took place. He said, the jeep of the
plaintiff overtook them and the said jeep of the plaintiff was followed by the
Philippine Rabbit Bus which was running very fast. The bus also overtook the
jeep in which he was riding. After that, he heard a loud sound. He saw the jeep of
the plaintiff swerved to the right on a grassy portion of the road. The Philippine
Rabbit Bus stopped and they overtook the Philippine Rabbit Bus so that it could
not moved (sic), meaning they stopped in front of the Philippine Rabbit Bus. He
testified that the jeep of plaintiff swerved to the right because it was bumped by
the Philippine Rabbit bus from behind.

Page 337 of 349

Both Mauricio Manliclic and his driver, Oscar Buan admitted that the Philippine
Rabbit Bus bumped the jeep in question. However, they explained that when the
Philippine Rabbit bus was about to go to the left lane to overtake the jeep, the
latter jeep swerved to the left because it was to overtake another jeep in front of
it. Such was their testimony before the RTC in Malolos in the criminal case and
before this Court in the instant case. [Thus, which of the two versions of the
manner how the collision took place was correct, would be determinative of who
between the two drivers was negligent in the operation of their respective
vehicles.]11

Petitioner PRBLI maintained that it observed and exercised the diligence of a

good father of a family in the selection and supervision of its employee,
specifically petitioner Manliclic.

On 22 July 1996, the trial court rendered its decision in favor of respondent
Calaunan and against petitioners Manliclic and PRBLI. The dispositive portion of
its decision reads:

WHEREFORE, judgment is rendered in favor of the plaintiff and against the

defendants ordering the said defendants to pay plaintiff jointly and solidarily the
amount of P40,838.00 as actual damages for the towing as well as the repair and
the materials used for the repair of the jeep in question; P100,000.00 as moral
damages and another P100,000.00 as exemplary damages and P15,000.00 as
attorney’s fees, including appearance fees of the lawyer. In addition, the
defendants are also to pay costs.12

Petitioners appealed the decision via Notice of Appeal to the Court of Appeals.13

In a decision dated 28 September 2001, the Court of Appeals, finding no

reversible error in the decision of the trial court, affirmed it in all respects.14

Petitioners are now before us by way of petition for review assailing the decision
of the Court of Appeals. They assign as errors the following:

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING

THE TRIAL COURT’S QUESTIONABLE ADMISSION IN EVIDENCE OF THE
TSN’s AND OTHER DOCUMENTS PRESENTED IN THE CRIMINAL CASE.

II

Page 338 of 349

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING
THE TRIAL COURT’S RELIANCE ON THE VERSION OF THE RESPONDENT
ON HOW THE ACCIDENT SUPPOSEDLY OCCURRED.

III

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING

THE TRIAL COURT’S UNFAIR DISREGARD OF HEREIN PETITIONER PRBL’s
DEFENSE OF EXERCISE OF DUE DILIGENCE IN THE SELECTION AND
SUPERVISION OF ITS EMPLOYEES.

IV

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING

THE TRIAL COURT’S QUESTIONABLE AWARD OF DAMAGES AND
ATTORNEY’S FEE.

With the passing away of respondent Calaunan during the pendency of this
appeal with this Court, we granted the Motion for the Substitution of Respondent
filed by his wife, Mrs. Precila Zarate Vda. De Calaunan, and children, Virgilio
Calaunan, Carmelita Honeycomb, Evelyn Calaunan, Marko Calaunan and
Liwayway Calaunan.15

In their Reply to respondent’s Comment, petitioners informed this Court of a

Decision16 of the Court of Appeals acquitting petitioner Manliclic of the charge17 of
Reckless Imprudence Resulting in Damage to Property with Physical Injuries
attaching thereto a photocopy thereof.

On the first assigned error, petitioners argue that the TSNs containing the
testimonies of respondent Calaunan,18Marcelo Mendoza19 and Fernando
Ramos20 should not be admitted in evidence for failure of respondent to comply
with the requisites of Section 47, Rule 130 of the Rules of Court.

For Section 47, Rule 13021 to apply, the following requisites must be satisfied: (a)
the witness is dead or unable to testify; (b) his testimony or deposition was given
in a former case or proceeding, judicial or administrative, between the same
parties or those representing the same interests; (c) the former case involved the
same subject as that in the present case, although on different causes of action;
(d) the issue testified to by the witness in the former trial is the same issue
involved in the present case; and (e) the adverse party had an opportunity to
cross-examine the witness in the former case.22

Page 339 of 349

Admittedly, respondent failed to show the concurrence of all the requisites set
forth by the Rules for a testimony given in a former case or proceeding to be
admissible as an exception to the hearsay rule. Petitioner PRBLI, not being a
party in Criminal Case No. 684-M-89, had no opportunity to cross-examine the
three witnesses in said case. The criminal case was filed exclusively against
petitioner Manliclic, petitioner PRBLI’s employee. The cases dealing with the
subsidiary liability of employers uniformly declare that, strictly speaking, they are
not parties to the criminal cases instituted against their employees.23

Notwithstanding the fact that petitioner PRBLI was not a party in said criminal
case, the testimonies of the three witnesses are still admissible on the ground
that petitioner PRBLI failed to object on their admissibility.

It is elementary that an objection shall be made at the time when an alleged

inadmissible document is offered in evidence; otherwise, the objection shall be
treated as waived, since the right to object is merely a privilege which the party
may waive. Thus, a failure to except to the evidence because it does not conform
to the statute is a waiver of the provisions of the law. Even assuming ex gratia
argumenti that these documents are inadmissible for being hearsay, but on
account of failure to object thereto, the same may be admitted and considered as
sufficient to prove the facts therein asserted.24 Hearsay evidence alone may be
insufficient to establish a fact in a suit but, when no objection is made thereto, it
is, like any other evidence, to be considered and given the importance it
deserves.25

In the case at bar, petitioner PRBLI did not object to the TSNs containing the
testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos in
the criminal case when the same were offered in evidence in the trial court. In
fact, the TSNs of the testimonies of Calaunan and Mendoza were admitted by
both petitioners.26 Moreover, petitioner PRBLI even offered in evidence the TSN
containing the testimony of Donato Ganiban in the criminal case. If petitioner
PRBLI argues that the TSNs of the testimonies of plaintiff’s witnesses in the
criminal case should not be admitted in the instant case, why then did it offer the
TSN of the testimony of Ganiban which was given in the criminal case? It
appears that petitioner PRBLI wants to have its cake and eat it too. It cannot
argue that the TSNs of the testimonies of the witnesses of the adverse party in
the criminal case should not be admitted and at the same time insist that the TSN
of the testimony of the witness for the accused be admitted in its favor. To
disallow admission in evidence of the TSNs of the testimonies of Calaunan,
Marcelo Mendoza and Fernando Ramos in the criminal case and to admit the
TSN of the testimony of Ganiban would be unfair.

Page 340 of 349

We do not subscribe to petitioner PRBLI’s argument that it will be denied due
process when the TSNs of the testimonies of Calaunan, Marcelo Mendoza and
Fernando Ramos in the criminal case are to be admitted in the civil case. It is too
late for petitioner PRBLI to raise denial of due process in relation to Section 47,
Rule 130 of the Rules of Court, as a ground for objecting to the admissibility of
the TSNs. For failure to object at the proper time, it waived its right to object that
the TSNs did not comply with Section 47.

In Mangio v. Court of Appeals,27 this Court, through Associate Justice Reynato S.

Puno,28 admitted in evidence a TSN of the testimony of a witness in another case
despite therein petitioner’s assertion that he would be denied due process. In
admitting the TSN, the Court ruled that the raising of denial of due process in
relation to Section 47, Rule 130 of the Rules of Court, as a ground for objecting
to the admissibility of the TSN was belatedly done. In so doing, therein petitioner
waived his right to object based on said ground.

Petitioners contend that the documents in the criminal case should not have
been admitted in the instant civil case because Section 47 of Rule 130 refers
only to "testimony or deposition." We find such contention to be untenable.
Though said section speaks only of testimony and deposition, it does not mean
that documents from a former case or proceeding cannot be admitted. Said
documents can be admitted they being part of the testimonies of witnesses that
have been admitted. Accordingly, they shall be given the same weight as that to
which the testimony may be entitled.29

On the second assigned error, petitioners contend that the version of petitioner
Manliclic as to how the accident occurred is more credible than respondent’s
version. They anchor their contention on the fact that petitioner Manliclic was
acquitted by the Court of Appeals of the charge of Reckless Imprudence
Resulting in Damage to Property with Physical Injuries.

To be resolved by the Court is the effect of petitioner Manliclic’s acquittal in the

civil case.

From the complaint, it can be gathered that the civil case for damages was one
arising from, or based on, quasi-delict.30 Petitioner Manliclic was sued for his
negligence or reckless imprudence in causing the collision, while petitioner
PRBLI was sued for its failure to exercise the diligence of a good father in the
selection and supervision of its employees, particularly petitioner Manliclic. The
allegations read:

Page 341 of 349

 "4. That sometime on July 12, 1988 at around 6:20 A.M. plaintiff was on
board the above-described motor vehicle travelling at a moderate speed
along the North Luzon Expressway heading South towards Manila together
with MARCELO MENDOZA, who was then driving the same;

"5. That approximately at kilometer 40 of the North Luzon Express Way,

the above-described motor vehicle was suddenly bumped from behind by
a Philippine Rabbit Bus with Body No. 353 and with plate No. CVD 478
then being driven by one Mauricio Manliclic of San Jose, Concepcion,
Tarlac, who was then travelling recklessly at a very fast speed and had
apparently lost control of his vehicle;

"6. That as a result of the impact of the collision the above-described motor
vehicle was forced off the North Luzon Express Way towards the rightside
where it fell on its driver’s side on a ditch, and that as a consequence, the
above-described motor vehicle which maybe valued at EIGHTY
THOUSAND PESOS (P80,000) was rendered a total wreck as shown by
pictures to be presented during the pre-trial and trial of this case;

"7. That also as a result of said incident, plaintiff sustained bodily injuries
which compounded plaintiff’s frail physical condition and required his
hospitalization from July 12, 1988 up to and until July 22, 1988, copy of the
medical certificate is hereto attached as Annex "A" and made an integral
part hereof;

"8. That the vehicular collision resulting in the total wreckage of the above-
described motor vehicle as well as bodily (sic) sustained by plaintiff, was
solely due to the reckless imprudence of the defendant driver Mauricio
Manliclic who drove his Philippine Rabbit Bus No. 353 at a fast speed
without due regard or observance of existing traffic rules and regulations;

"9. That defendant Philippine Rabbit Bus Line Corporation failed to

exercise the diligence of a good father of (sic) family in the selection and
supervision of its drivers; x x x"31

Can Manliclic still be held liable for the collision and be found negligent
notwithstanding the declaration of the Court of Appeals that there was an
absence of negligence on his part?

In exonerating petitioner Manliclic in the criminal case, the Court of Appeals said:

Page 342 of 349

To the following findings of the court a quo, to wit: that accused-appellant was
negligent "when the bus he was driving bumped the jeep from behind"; that "the
proximate cause of the accident was his having driven the bus at a great speed
while closely following the jeep"; x x x

We do not agree.

The swerving of Calaunan’s jeep when it tried to overtake the vehicle in front of it
was beyond the control of accused-appellant.

xxxx

Absent evidence of negligence, therefore, accused-appellant cannot be held

liable for Reckless Imprudence Resulting in Damage to Property with Physical
Injuries as defined in Article 365 of the Revised Penal Code.32

From the foregoing declaration of the Court of Appeals, it appears that petitioner
Manliclic was acquitted not on reasonable doubt, but on the ground that he is not
the author of the act complained of which is based on Section 2(b) of Rule 111 of
the Rules of Criminal Procedure which reads:

(b) Extinction of the penal action does not carry with it extinction of the civil,
unless the extinction proceeds from a declaration in a final judgment that the fact
from which the civil might arise did not exist.

In spite of said ruling, petitioner Manliclic can still be held liable for the mishap.
The afore-quoted section applies only to a civil action arising from crime or ex
delicto and not to a civil action arising from quasi-delict or culpa aquiliana. The
extinction of civil liability referred to in Par. (e) of Section 3, Rule 111 [now
Section 2 (b) of Rule 111], refers exclusively to civil liability founded on Article
100 of the Revised Penal Code, whereas the civil liability for the same act
considered as a quasi-delict only and not as a crime is not extinguished even by
a declaration in the criminal case that the criminal act charged has not happened
or has not been committed by the accused.33

A quasi-delict or culpa aquiliana is a separate legal institution under the Civil

Code with a substantivity all its own, and individuality that is entirely apart and
independent from a delict or crime – a distinction exists between the civil liability
arising from a crime and the responsibility for quasi-delicts or culpa extra-
contractual. The same negligence causing damages may produce civil liability
arising from a crime under the Penal Code, or create an action for quasi-delicts
or culpa extra-contractual under the Civil Code.34 It is now settled that acquittal of

Page 343 of 349

the accused, even if based on a finding that he is not guilty, does not carry with it
the extinction of the civil liability based on quasi delict.35

In other words, if an accused is acquitted based on reasonable doubt on his guilt,

his civil liability arising from the crime may be proved by preponderance of
evidence only. However, if an accused is acquitted on the basis that he was not
the author of the act or omission complained of (or that there is declaration in a
final judgment that the fact from which the civil might arise did not exist), said
acquittal closes the door to civil liability based on the crime or ex delicto. In this
second instance, there being no crime or delict to speak of, civil liability based
thereon or ex delicto is not possible. In this case, a civil action, if any, may be
instituted on grounds other than the delict complained of.

As regards civil liability arising from quasi-delict or culpa aquiliana, same will not
be extinguished by an acquittal, whether it be on ground of reasonable doubt or
that accused was not the author of the act or omission complained of (or that
there is declaration in a final judgment that the fact from which the civil liability
might arise did not exist). The responsibility arising from fault or negligence in
a quasi-delict is entirely separate and distinct from the civil liability arising from
negligence under the Penal Code.36 An acquittal or conviction in the criminal case
is entirely irrelevant in the civil case37 based on quasi-delict or culpa aquiliana.

Petitioners ask us to give credence to their version of how the collision occurred
and to disregard that of respondent’s. Petitioners insist that while the PRBLI bus
was in the process of overtaking respondent’s jeep, the latter, without warning,
suddenly swerved to the left (fast) lane in order to overtake another jeep ahead
of it, thus causing the collision.

As a general rule, questions of fact may not be raised in a petition for review. The
factual findings of the trial court, especially when affirmed by the appellate court,
are binding and conclusive on the Supreme Court.38 Not being a trier of facts, this
Court will not allow a review thereof unless:

(1) the conclusion is a finding grounded entirely on speculation, surmise and

conjecture; (2) the inference made is manifestly mistaken; (3) there is grave
abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5)
the findings of fact are conflicting; (6) the Court of Appeals went beyond the
issues of the case and its findings are contrary to the admissions of both
appellant and appellees; (7) the findings of fact of the Court of Appeals are
contrary to those of the trial court; (8) said findings of fact are conclusions without
citation of specific evidence on which they are based; (9) the facts set forth in the
petition as well as in the petitioner's main and reply briefs are not disputed by the

Page 344 of 349

respondents; and (10) the findings of fact of the Court of Appeals are premised
on the supposed absence of evidence and contradicted by the evidence on
record.39

After going over the evidence on record, we do not find any of the exceptions that
would warrant our departure from the general rule. We fully agree in the finding
of the trial court, as affirmed by the Court of Appeals, that it was petitioner
Manliclic who was negligent in driving the PRBLI bus which was the cause of the
collision. In giving credence to the version of the respondent, the trial court has
this say:

x x x Thus, which of the two versions of the manner how the collision took place
was correct, would be determinative of who between the two drivers was
negligent in the operation of their respective vehicle.

In this regard, it should be noted that in the statement of Mauricio Manliclic (Exh.
15) given to the Philippine Rabbit Investigator CV Cabading no mention was
made by him about the fact that the driver of the jeep was overtaking another
jeep when the collision took place. The allegation that another jeep was being
overtaken by the jeep of Calaunan was testified to by him only in Crim. Case No.
684-M-89 before the Regional Trial Court in Malolos, Bulacan and before this
Court. Evidently, it was a product of an afterthought on the part of Mauricio
Manliclic so that he could explain why he should not be held responsible for the
incident. His attempt to veer away from the truth was also apparent when it would
be considered that in his statement given to the Philippine Rabbit Investigator CV
Cabading (Exh. 15), he alleged that the Philippine Rabbit Bus bumped the jeep
of Calaunan while the Philippine Rabbit Bus was behind the said jeep. In his
testimony before the Regional Trial Court in Malolos, Bulacan as well as in this
Court, he alleged that the Philippine Rabbit Bus was already on the left side of
the jeep when the collision took place. For this inconsistency between his
statement and testimony, his explanation regarding the manner of how the
collision between the jeep and the bus took place should be taken with caution. It
might be true that in the statement of Oscar Buan given to the Philippine Rabbit
Investigator CV Cabading, it was mentioned by the former that the jeep of plaintiff
was in the act of overtaking another jeep when the collision between the latter
jeep and the Philippine Rabbit Bus took place. But the fact, however, that his
statement was given on July 15, 1988, one day after Mauricio Manliclic gave his
statement should not escape attention. The one-day difference between the
giving of the two statements would be significant enough to entertain the
possibility of Oscar Buan having received legal advise before giving his
statement. Apart from that, as between his statement and the statement of

Page 345 of 349

Manliclic himself, the statement of the latter should prevail. Besides, in his
Affidavit of March 10, 1989, (Exh. 14), the unreliability of the statement of Oscar
Buan (Exh. 13) given to CV Cabading rear its "ugly head" when he did not
mention in said affidavit that the jeep of Calaunan was trying to overtake another
jeep when the collision between the jeep in question and the Philippine Rabbit
bus took place.

xxxx

If one would believe the testimony of the defendant, Mauricio Manliclic, and his
conductor, Oscar Buan, that the Philippine Rabbit Bus was already somewhat
parallel to the jeep when the collision took place, the point of collision on the jeep
should have been somewhat on the left side thereof rather than on its rear.
Furthermore, the jeep should have fallen on the road itself rather than having
been forced off the road. Useless, likewise to emphasize that the Philippine
Rabbit was running very fast as testified to by Ramos which was not controverted
by the defendants.40

Having ruled that it was petitioner Manliclic’s negligence that caused the smash
up, there arises the juris tantum presumption that the employer is negligent,
rebuttable only by proof of observance of the diligence of a good father of a
family.41 Under Article 218042 of the New Civil Code, when an injury is caused by
the negligence of the employee, there instantly arises a presumption of law that
there was negligence on the part of the master or employer either in the selection
of the servant or employee, or in supervision over him after selection or both. The
liability of the employer under Article 2180 is direct and immediate; it is not
conditioned upon prior recourse against the negligent employee and a prior
showing of the insolvency of such employee. Therefore, it is incumbent upon the
private respondents to prove that they exercised the diligence of a good father of
a family in the selection and supervision of their employee.43

In the case at bar, petitioner PRBLI maintains that it had shown that it exercised
the required diligence in the selection and supervision of its employees,
particularly petitioner Manliclic. In the matter of selection, it showed the screening
process that petitioner Manliclic underwent before he became a regular driver. As
to the exercise of due diligence in the supervision of its employees, it argues that
presence of ready investigators (Ganiban and Cabading) is sufficient proof that it
exercised the required due diligence in the supervision of its employees.

In the selection of prospective employees, employers are required to examine

them as to their qualifications, experience and service records. In the supervision
of employees, the employer must formulate standard operating procedures,

Page 346 of 349

monitor their implementation and impose disciplinary measures for the breach
thereof. To fend off vicarious liability, employers must submit concrete proof,
including documentary evidence, that they complied with everything that was
incumbent on them.44

In Metro Manila Transit Corporation v. Court of Appeals,45 it was explained that:

Due diligence in the supervision of employees on the other hand, includes the
formulation of suitable rules and regulations for the guidance of employees and
the issuance of proper instructions intended for the protection of the public and
persons with whom the employer has relations through his or its employees and
the imposition of necessary disciplinary measures upon employees in case of
breach or as may be warranted to ensure the performance of acts indispensable
to the business of and beneficial to their employer. To this, we add that actual
implementation and monitoring of consistent compliance with said rules should
be the constant concern of the employer, acting through dependable supervisors
who should regularly report on their supervisory functions.

In order that the defense of due diligence in the selection and supervision of
employees may be deemed sufficient and plausible, it is not enough to emptily
invoke the existence of said company guidelines and policies on hiring and
supervision. As the negligence of the employee gives rise to the presumption of
negligence on the part of the employer, the latter has the burden of proving that it
has been diligent not only in the selection of employees but also in the actual
supervision of their work. The mere allegation of the existence of hiring
procedures and supervisory policies, without anything more, is decidedly not
sufficient to overcome such presumption.

We emphatically reiterate our holding, as a warning to all employers, that "the

formulation of various company policies on safety without showing that they were
being complied with is not sufficient to exempt petitioner from liability arising from
negligence of its employees. It is incumbent upon petitioner to show that in
recruiting and employing the erring driver the recruitment procedures and
company policies on efficiency and safety were followed." x x x.

The trial court found that petitioner PRBLI exercised the diligence of a good
father of a family in the selection but not in the supervision of its employees. It
expounded as follows:

From the evidence of the defendants, it seems that the Philippine Rabbit Bus
Lines has a very good procedure of recruiting its driver as well as in the
maintenance of its vehicles. There is no evidence though that it is as good in the

Page 347 of 349

supervision of its personnel. There has been no iota of evidence introduced by it
that there are rules promulgated by the bus company regarding the safe
operation of its vehicle and in the way its driver should manage and operate the
vehicles assigned to them. There is no showing that somebody in the bus
company has been employed to oversee how its driver should behave while
operating their vehicles without courting incidents similar to the herein case. In
regard to supervision, it is not difficult to observe that the Philippine Rabbit Bus
Lines, Inc. has been negligent as an employer and it should be made responsible
for the acts of its employees, particularly the driver involved in this case.

We agree. The presence of ready investigators after the occurrence of the

accident is not enough to exempt petitioner PRBLI from liability arising from the
negligence of petitioner Manliclic. Same does not comply with the guidelines set
forth in the cases above-mentioned. The presence of the investigators after the
accident is not enough supervision. Regular supervision of employees, that is,
prior to any accident, should have been shown and established. This, petitioner
failed to do. The lack of supervision can further be seen by the fact that there is
only one set of manual containing the rules and regulations for all the drivers of
PRBLI. 46 How then can all the drivers of petitioner PRBLI know and be
continually informed of the rules and regulations when only one manual is being
lent to all the drivers?

For failure to adduce proof that it exercised the diligence of a good father of a
family in the selection and supervision of its employees, petitioner PRBLI is held
solidarily responsible for the damages caused by petitioner Manliclic’s
negligence.

We now go to the award of damages. The trial court correctly awarded the
amount of P40,838.00 as actual damages representing the amount paid by
respondent for the towing and repair of his jeep.47 As regards the awards for
moral and exemplary damages, same, under the circumstances, must be
modified. The P100,000.00 awarded by the trial court as moral damages must be
reduced to P50,000.00.48 Exemplary damages are imposed by way of example or
correction for the public good.49 The amount awarded by the trial court must,
likewise, be lowered to P50,000.00.50 The award of P15,000.00 for attorney’s
fees and expenses of litigation is in order and authorized by law.51

WHEREFORE, premises considered, the instant petition for review is DENIED.

The decision of the Court of Appeals in CA-G.R. CV No. 55909 is AFFIRMED
with the MODIFICATION that (1) the award of moral damages shall be reduced
to P50,000.00; and (2) the award of exemplary damages shall be lowered
to P50,000.00. Costs against petitioners.

Page 348 of 349

Page 349 of 349